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NOT DESIGNATED FOR PUBLICATION

No. 121,758

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

SAMUEL T. HALEY,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed May 21, 2021.

Affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before GARDNER, P.J., BUSER and BRUNS, JJ.

BUSER, J.: This is a sentencing appeal brought by Samuel T. Haley, who claims 

the district court imposed an illegal sentence in his criminal case. In particular, he 

challenges the district court's ruling which allowed the State to object to the presentence 

investigation (PSI) report which, according to the State, improperly classified Haley's 

five prior residential burglary convictions as nonperson offenses rather than person

offenses. The district court agreed with the State and designated the prior convictions as 

person offenses, resulting in an A criminal history score. Upon our review, we find no 

error in the district court's ruling and affirm Haley's sentence.
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FACTUAL AND PROCEDURAL BACKGROUND

On April 10, 2019, in accord with a plea agreement, Haley pled no contest to 

residential burglary, in violation of K.S.A. 2016 Supp. 21-5807(a)(1), (c)(1)(A)(i), and 

theft, in violation of K.S.A. 2016 Supp. 21-5801(a)(1), (b)(2). Haley committed these 

crimes two years earlier, on April 15 and 16, 2017. Prior to sentencing, the PSI calculated 

that Haley had an E criminal history score. Relevant to this appeal, the PSI designated 

five prior Kansas residential burglary convictions, from 2001 through 2010, as nonperson

felonies. See State v. Keel, 302 Kan. 560, Syl. ¶ 9, 357 P.3d 251 (2015).

Upon reviewing the PSI prior to sentencing, the State requested a continuance to 

file a written objection to the calculation of Haley's criminal history score. Haley 

objected but the continuance was granted by the district court. Soon thereafter, the State 

filed a written objection and challenged the scoring of Haley's five prior Kansas 

residential burglary convictions. The State argued that based on the plain language of 

K.S.A. 2016 Supp. 21-6811(d)(1), the prior residential burglary convictions were 

improperly designated in the PSI as nonperson felonies. The State maintained that the 

entries should have been classified as person felonies, resulting in an A criminal history 

score.

Sentencing occurred on July 29, 2019. The State reiterated its arguments that the 

PSI was incorrect, noting that there had been "a difference in opinion between PSI 

writers" regarding how to designate prior burglary convictions for criminal history 

scoring purposes. Haley countered that the State lacked jurisdiction to challenge the PSI

and the rule of lenity required sentencing statutes to be interpreted in his favor if there 

was doubt as to their proper interpretation.

The district court adopted the State's reasoning and calculated that Haley had an A 

criminal history score. Haley was sentenced to 30 months' imprisonment for burglary and 
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a consecutive 11-month sentence for theft, followed by 12 months postrelease 

supervision.

Haley appeals.

SCORING OF PRIOR BURGLARY CONVICTIONS AS PERSON FELONIES

On appeal, Haley contends the district court imposed an illegal sentence when it 

classified his five prior Kansas residential burglary convictions as person felonies, rather 

than nonperson felonies, which erroneously resulted in an A criminal history score. Haley 

asserts the district court erred for two reasons. First, he contends there is no statutory

mechanism under Kansas law that allows the State to object to the PSI. Second, Haley

contends that even if the State could legally object, Keel requires a district court to 

designate his prior burglary convictions as nonperson felonies based on the nonperson 

felony designation attached to his current burglary conviction. See Keel, 302 Kan. 560, 

Syl. ¶ 9.

In response, the State argues that Haley failed to preserve the issue of the State's 

ability to object to the PSI. Nevertheless, the State contends it was permitted to object to 

the PSI, the district court properly considered the State's objections, and the court 

properly applied K.S.A. 2016 Supp. 21-6811(d)(1) in designating Haley's five prior 

residential burglary convictions as person felonies.

The classification of prior offenses for criminal history purposes involves statutory 

interpretation, which presents a question of law subject to our unlimited review. State v. 

Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).

We begin the analysis with a brief summary of Kansas law pertaining to the 

calculation of a defendant's criminal history for purposes of determining a sentence. 
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Under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-

6801 et seq., criminal sentences are based on two controlling factors: the defendant's 

criminal history and the severity level of the crime committed. K.S.A. 2020 Supp. 21-

6804(c). Criminal history scores range from I (no criminal history or one misdemeanor) 

to A (three or more person felonies). See K.S.A. 2020 Supp. 21-6809; K.S.A. 2020 Supp. 

21-6804(a). A defendant's criminal history includes all the defendant's adult felony 

convictions, felony juvenile adjudications, and certain misdemeanor convictions and 

adjudications. K.S.A. 2020 Supp. 21-6810(a), (d).

When calculating a defendant's criminal history score, the district court classifies 

convictions (1) as a felony or misdemeanor and (2) as a person or nonperson offense. 

K.S.A. 2020 Supp. 21-6810(a). The KSGA weighs felonies more heavily than 

misdemeanors, and they result in higher presumptive sentences. The KSGA also weighs 

person offenses more heavily than nonperson offenses. See Keel, 302 Kan. at 574-75.

Preservation of the First Issue for Appellate Review

The State contends Haley failed to preserve his first argument for appeal because 

he "did not make his procedural claim that K.S.A. 2016 Supp. 21-6814 lacks a 

mechanism for the State to object to a criminal history score below." Generally, issues 

not raised before the district court may not be raised on appeal. See State v. Kelly, 298 

Kan. 965, 971, 318 P.3d 987 (2014).

The State is mistaken. Haley, in essence, asserted this argument in the district 

court. At sentencing, Haley's counsel contended:

"Also, Mr. Haley points out looking at the statutes in question [K.S.A. 2016 

Supp.] 21-6814 it talks about the defendant's responsibilities and procedures. The 

defendant argues against the criminal history and challenges the prior convictions.
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"What Mr. Haley is stating the State—they are objecting to the PSI. Mr. Haley is 

arguing they don't have jurisdiction to be able to do that."

As a result, we find Haley's first argument was preserved for appellate review, and 

we will address the merits.

Propriety of the State's Objection to PSI Errors

Haley contends the district court erred in considering the State's objection to the 

classification of crimes in the PSI because "there is no statutory mechanism allowing the 

State to make such an objection." The statute in question, K.S.A. 2016 Supp. 21-6814, 

reads:

"(a) The offender's criminal history shall be admitted in open court by the 

offender or determined by a preponderance of the evidence at the sentencing hearing by 

the sentencing judge.

"(b) Except to the extent disputed in accordance with subsection (c), the 

summary of the offender's criminal history prepared for the court by the state shall satisfy 

the state's burden of proof regarding an offender's criminal history.

"(c) Upon receipt of the criminal history worksheet prepared for the court, the 

offender shall immediately notify the district attorney and the court with written notice of 

any error in the proposed criminal history worksheet. Such notice shall specify the exact 

nature of the alleged error. The state shall have the burden of proving the disputed portion 

of the offender's criminal history. The sentencing judge shall allow the state reasonable 

time to produce evidence to establish its burden of proof. If the offender later challenges 

such offender's criminal history, which has been previously established, the burden of 

proof shall shift to the offender to prove such offender's criminal history by a 

preponderance of the evidence."

Haley argues that a plain reading of the statute "discloses that the State has no 

ability to object to a criminal history score and seek reclassification of admitted to prior 

convictions." He asserts the Legislature intended "no action is to be taken once a 
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defendant admits to the criminal history in open court, as the PSI has satisfied the State's 

burden of proof on the matter," based on subsections (a) and (b). As to subsection (c), 

Haley asserts this subsection allows for challenges solely by a defendant. Because Haley 

admitted to the criminal history score established by the PSI at sentencing, he contends 

his prior criminal history was not subject to challenge since the State had met its burden 

of proof under K.S.A. 2016 Supp. 21-6814(a) and (b).

In response, the State cites State v. Hankins, 19 Kan. App 2d 1036, 880 P.2d 271 

(1994). In Hankins, our court considered this same argument raised by Haley and found it 

unpersuasive. In particular, we analyzed the language in K.S.A. 1993 Supp. 21-4715, the 

precursor to K.S.A. 2016 Supp. 21-6814, and determined:

"Although the [KSGA] does not provide for a challenge by the State of the 

criminal history worksheet of the presentence investigation report, the State must be 

allowed to correct an erroneous criminal history worksheet . . . .

"Denying the State an opportunity to correct an erroneous criminal history 

worksheet would contravene the intent of the [L]egislature in passing the [KSGA] and 

would violate the ethical responsibility of the prosecutor not to permit false information 

to be reported to the court." 19 Kan. App. 2d 1036, Syl. ¶¶ 4, 5.

After the Hankins court determined the State was entitled to correct a PSI, it held:

"If the State plans to amend or challenge the criminal history listed in a PSI 

report, due process requires it must make such amendment or challenge in writing prior 

to the time of sentencing and provide copies for the court and the defendant or defense 

counsel in sufficient time for the amended history to be reviewed by the defendant. If it is 

impossible for the State to make these challenges to the report prior to the date of 

sentencing, the district court must provide the defendant with time to challenge the 

amended history in compliance with K.S.A. 1993 Supp. 21-4715." 19 Kan. App. 2d at 

1048.
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While candidly conceding this contrary holding, Haley argues "it is true that an 

accurate criminal history score is pivotal to the Kansas sentencing scheme, [but] this does 

not justify inserting words into a statute where they do not exist." Haley also suggests 

that the State has two options apart from objecting to the PSI: The State could appeal the 

sentence under K.S.A. 2020 Supp. 22-3602(f) (criminal appeals statute) or the State could 

seek to correct the resultant illegal sentence under K.S.A. 2020 Supp. 22-3504(a) (motion 

to correct an illegal sentence).

The State counters that Hankins controls and the State complied with our court's 

directives by properly objecting in writing to Haley's criminal history score. Responding 

to Haley's arguments, the State asserts it may not take an appeal of Haley's criminal 

history score because "K.S.A. [2020 Supp.] 22-3602(f) . . . plainly only allows for the 

State to appeal a departure sentence." See K.S.A. 2020 Supp. 21-6820. The State also 

criticizes Haley's argument that the State could file a motion to correct illegal sentence 

after the erroneous criminal history was used in sentencing as producing "an 

unreasonable and absurd result."

We find the reasoning supporting the holding in Hankins' is persuasive. There is 

nothing in the statutory scheme that precludes the State from objecting to erroneous 

information contained in the PSI—including, but not limited to, a mistaken classification 

of a defendant's prior crimes which results in an incorrect criminal history score.

Moreover, under K.S.A. 2020 Supp. 21-6813(a), it is the duty of the court to order 

preparation of a PSI by a court services officer. And K.S.A. 2020 Supp. 21-6813(b)(5) 

provides the PSI "shall include an assessment of the appropriate classification of the 

criminal history on the criminal history scale . . . ." This assessment is an essential 

component of the KSGA, which has a "principal purpose" of standardizing sentences "so

that similarly situated offenders are treated the same." Keel, 302 Kan. at 589.
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It is an understatement to observe the assessment of the appropriate classification 

of criminal history requires accurate information regarding a defendant's criminal history. 

But the assessment also requires a correct understanding of how Kansas sentencing 

statutes and caselaw precedent construe that criminal history. This is essentially a legal 

function for which defense counsel and prosecutors can provide helpful assistance to the 

district court in order to arrive at a lawful sentence.

Our court in Hankins highlighted additional reasons to allow prosecutors to object 

to erroneous criminal history information:

"The KSGA, when read as a whole, relies upon the accuracy of an offender's criminal 

history in reaching a presumptive sentence. The importance of an accurate criminal 

history is emphasized by the fact the parties cannot plea bargain away any of an 

offender's prior convictions. The legislative background reveals the [L]egislature 

recognized the importance of having the criminal histories as accurate as possible. Even 

more basic, the prosecutor, as an officer of the court, has an obligation to bring to the 

court's attention any errors of which the prosecutor is aware in any report submitted to the 

court. Based on these factors, denying the State an opportunity to correct an erroneous 

criminal history worksheet would contravene the intent of the [L]egislature and the 

ethical responsibility of the prosecutor." 19 Kan. App. at 1046-47.

Finally, courts must construe statutes to avoid unreasonable or absurd results.

Keel, 302 Kan. at 574. Haley's interpretation of K.S.A. 2016 Supp. 21-6814 would bring 

about unreasonable or absurd results in sentencing by prohibiting the State from objecting 

to false or erroneous information in the PSI which would necessarily result in imposition 

of an illegal sentence. Not only would this create the unreasonable consequence of an 

illegal sentence, but Haley's statutory construction deviates from the purposes of the 

KSGA.
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Hankins is dispositive. The district court did not err in permitting the State to file a 

written objection to the criminal history contained in the PSI prior to sentencing which, 

according to the State, improperly classified Haley's five prior Kansas residential 

burglary convictions as nonperson offenses rather than person offenses.

Classification of Prior Kansas Residential Burglary Convictions as Person Felonies

Next, Haley contends the district court erred in classifying his five prior Kansas 

residential burglary convictions that he committed from 2001 through 2010 as person

felonies when the district court should have designated the convictions as nonperson

felonies based on the nonperson felony designation assigned to burglary at the time of 

Haley's current offenses on April 15 and 16, 2017. The State counters that the district 

court did not err, arguing that our court has previously considered and rejected this legal 

argument.

Whether a district court has properly classified a prior conviction as a person or 

nonperson offense requires the interpretation of the KSGA, K.S.A. 2020 Supp. 21-6801 

et seq. Whether a sentence is illegal is a question of law subject to unlimited review. 

Issues of statutory interpretation and the classification of prior crimes for criminal history 

purposes are also questions of law subject to unlimited review. State v. Sartin, 310 Kan. 

367, 369, 446 P.3d 1068 (2019).

When Haley committed his present crimes—on April 15 and 16, 2017—burglary 

of a dwelling was a nonperson offense under K.S.A. 2016 Supp. 21-5807(c)(1)(A). As 

Haley notes, in Keel our Supreme Court held that district courts should predicate their

designation of prior Kansas convictions and juvenile adjudications based on Kansas 

offenses in effect at the time of the current conviction. The Keel court held: "The

comparable post-KSGA Kansas criminal statute is the one in effect at the time of the 

current crime of conviction was committed," and so "the classification of a prior 
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conviction . . . for criminal history purposes under the KSGA must be based on the 

classification in effect for the comparable offense when the current crime of conviction 

was committed." 302 Kan. 560, Syl. ¶¶ 8-9. As a result, Haley contends his five prior 

convictions for residential burglaries that he committed in Kansas from 2001 through 

2010—which were designated as person felonies at that time—should have been 

designated as a nonperson felonies for purposes of scoring his criminal history at 

sentencing.

Since the Legislature established the person and nonperson designations to 

criminal offenses in 2003, burglary of a dwelling has almost always been classified as a 

person felony. However, for a brief period of less than a year—from July 1, 2016, until 

May 18, 2017—the Legislature classified residential burglary as a nonperson felony. 

Compare K.S.A. 2016 Supp. 21-5807(c)(1)(A)(i) with K.S.A. 2017 Supp. 21-

5807(c)(1)(A)(i). It was during this short-lived period that Haley committed the current 

residential burglary, which was designated as a nonperson crime.

As the State emphasizes, however, despite this change in designation for burglary 

convictions occurring from July 1, 2016, until May 18, 2017, K.S.A. 2016 Supp. 21-

6811(d)(1) directed courts to designate "[p]rior burglary adult convictions and juvenile 

adjudications [to] be scored for criminal history purposes . . . [a]s a prior person felony if 

the conviction or adjudication was classified as a burglary as defined in K.S.A. 21-

3715(a), prior to its repeal, or K.S.A. 2016 Supp. 21-5807(a)(1), and amendments 

thereto." (Emphases added.) K.S.A. 2016 Supp. 21-6811(d)(1). This statute is applicable 

to the facts and circumstances of Haley's latest sentencing.

The interplay between K.S.A. 2016 Supp. 21-6811(d)(1) and K.S.A. 2016 Supp. 

21-5807(c)(1)(A), has been the subject of prior Court of Appeals opinions. Our court has 

considered this legal issue at least three times and, on each occasion, we have rejected the 

argument raised by Haley in this appeal. See State v. Hicks, No. 120,834, 2020 WL 
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1646812 (Kan. App. 2020) (unpublished opinion), rev. denied 312 Kan. 897 (2020); State 

v. Marshall, No. 119,710, 2019 WL 5849911 (Kan. App. 2019) (unpublished opinion), 

rev. denied 311 Kan. 1048 (2020); State v. Cadenhead, No. 117,796, 2018 WL 3673028 

(Kan. App. 2015) (unpublished opinion), rev. denied 309 Kan. 1350 (2019).

In Cadenhead, our court conducted an extensive analysis of Keel and other 

relevant precedent and rejected an argument similar to Haley's. The panel held:

"Though K.S.A. 2016 Supp. 21-5807(a)(1) and (c)(1) are specific to the offense 

of burglary and includes the severity level and nonperson designation for future 

sentencing, K.S.A. 2016 Supp. 21-6811(d)(1) is specific to the purpose for which it is 

being used here—sentencing for a subsequent offense. It also provides the State's burden 

of proof in proving prior convictions. When considered along with the legislative 

omission of an in-state, post-KSGA rule for designation at the time of the current offense, 

it seems the person/nonperson designation in K.S.A. 2016 Supp. 21-5807(c)(1) is for 

determination of an offender's criminal history score in current offenses rather than for 

designation of prior offenses for criminal history. Even so, the designation in K.S.A. 

2016 Supp. 21-6811(d)(1) provides instruction for designating any prior conviction for 

burglary of a dwelling when scoring it for sentencing. Thus, K.S.A. 2016 Supp. 21-

6811(d)(1) provides a specific enactment." Cadenhead, 2018 WL 3673028, at *5.

A few years later in Marshall, our court discounted the same argument raised by 

Haley in this appeal:

"Keel does not control; Dickey does. The Kansas Supreme Court in State v. Dickey, 301 

Kan. 1018, 1035, 350 P.3d 1054 (2015), held a pre-KSGA juvenile adjudication for 

burglary, which did not include a requirement the burglarized structure be a dwelling as 

an element of the offense, is a nonperson felony. The Dickey court found the 

classification of a prior residential burglary conviction or adjudication for criminal 

history purposes is specifically controlled by K.S.A. 2018 Supp. 21-6811(d). [Citation 

omitted.]" Marshall, 2019 WL 5849911, at *6.
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Most recently in Hicks, we again dismissed a legal argument like the one raised by 

Haley. After addressing the Marshall and Cadenhead decisions, the Hicks court held that 

prior convictions for burglary of a dwelling should be designated as person offenses 

because K.S.A. 2016 Supp. 21-6811(d)(1) is a more specific statute than K.S.A. 2016 

Supp. 21-5807(c)(1)(A)(i). 2020 WL 1646812, at *5.

The decisions in Hicks, Marshall, and Cadenhead are sound and dispositive. 

When there is a conflict between statutes, a specific statute controls over a general 

statute. State v. Kinder, 307 Kan. 237, 241, 408 P.3d 114 (2018). As analyzed by our 

court previously, K.S.A. 2016 Supp. 21-6811(d)(1) is very specific to the purpose for 

which it is being used here. The statute specifically provides for the classification of a 

prior Kansas residential burglary conviction as a person offense for the purpose of 

determining a defendant's criminal history score. This language is much more specific 

than the language of the general statute designating burglary as a crime. See K.S.A. 2016 

Supp. 21-5807(c)(1)(A)(i).

Although it is unknown why the Legislature changed burglary of a dwelling from 

a person designation to a nonperson designation for 10 months, the Legislature's inaction 

in response to the Cadenhead opinion supports our court's decision. Courts generally 

presume the Legislature acts with full knowledge of the statutory subject matter, 

including prior and existing law and judicial decisions interpreting the same. State v. 

Kershaw, 302 Kan. 772, 782, 359 P.3d 52 (2015). When the Legislature fails to modify a 

statute to avoid a standing judicial construction of the statute, courts presume the 

Legislature agrees with that judicial construction. State v. Nguyen, 304 Kan. 420, 425-26, 

372 P.3d 1142 (2016). The Hicks and Marshall opinions are relatively recent decisions, 

but Cadenhead has been decided for several years with no legislative modifications to the 

relevant statutes.
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We hold that under the facts of this case, K.S.A. 2016 Supp. 21-6811(d)(1)

controls the person/nonperson designation for prior residential burglary convictions when 

a district court calculates an offender's criminal history score. Accordingly, the district 

court did not err in designating Haley's five prior residential burglary convictions as 

person offenses in calculating his criminal history score for purposes of sentencing.

Affirmed.