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NOT DESIGNATED FOR PUBLICATION

No. 123,329

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

KRISTOPHER LEVI MARTIN CHAPPELL,

Appellant.

MEMORANDUM OPINION

Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed April 15, 2022. Sentence 

vacated and case remanded for resentencing.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant. 

Michael R. Serra, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., CLINE, J., and JAMES L. BURGESS, S.J.

PER CURIAM: Kristopher Levi Martin Chappell appeals his sentence after he pled 

no contest to one count of aggravated assault on a law enforcement officer with a deadly 

weapon and one count of felony fleeing and eluding. On appeal, Chappell contends that 

his sentence was illegal based on an erroneous criminal history score resulting from the 

classification of his two prior convictions in Colorado for assault in the third degree as 

person misdemeanors. Because we are duty bound to follow the precedent of the Kansas 

Supreme Court on this issue, we vacate Chappell's sentence and remand to the district 

court for resentencing.
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FACTS

The underlying facts regarding Chappell's current crimes of conviction are not 

material to the limited issue raised in his appeal. Under the terms of a plea agreement, 

Chappell pled no contest to aggravated assault on a law enforcement officer with a deadly 

weapon and fleeing and eluding. A presentence investigation (PSI) report listed numerous 

prior convictions. These prior convictions included two Colorado misdemeanor offenses 

for assault in the third degree. Prior to sentencing, Chappell objected to the PSI and 

argued that it improperly listed his Colorado misdemeanor convictions for assault in the 

third degree as person offenses because there is no comparable crime in Kansas. 

At his sentencing hearing, Chappell argued that his two Colorado misdemeanor 

convictions for assault in the third degree should be classified as nonperson offenses. 

Specifically, he argued that the Colorado offense of assault in the third degree is broader 

than the comparable offense in Kansas in effect at the time he committed his current 

crime of conviction. Although the district court sustained Chappell's objection regarding 

the classification of two of his other prior convictions, it rejected his argument that the 

Colorado misdemeanor convictions had been improperly classified.

After considering the arguments presented, the district court determined that 

Chappell's two Colorado misdemeanor convictions should be aggregated with another 

prior person misdemeanor conviction identified in the PSI and treated as a person felony. 

As a result, Chappell's criminal history score included two person felonies. Ultimately, 

the district court determined that Chappell's criminal history score was B, and it imposed 

a controlling sentence of 39 months in prison. 

Thereafter, Chappell filed a timely notice of appeal. 
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ANALYSIS

The sole issue presented on appeal is whether the district court erred by classifying 

Chappell's two prior Colorado convictions for assault in the third degree under Colo. Rev. 

Stat. § 18-3-204 as person misdemeanors. K.S.A. 2019 Supp. 21-6811(e)(2) provides that 

"[a]n out-of-state crime will be classified as either a felony or a misdemeanor according 

to the convicting jurisdiction." Since Colorado classifies "assault in the third degree" as a 

misdemeanor offense, the question before us is whether the prior Colorado convictions 

should be classified as person offenses or nonperson offenses. See Colo. Rev. Stat. § 18-

3-204(3).

Whether a criminal sentence is illegal under K.S.A. 2020 Supp. 22-3504 is a 

question of law over which our review is unlimited. See State v. Bryant, 310 Kan. 920, 

921, 453 P.3d 279 (2019). If there has been a misclassification of a prior conviction in a 

defendant's criminal history, the resulting sentence is illegal and can be corrected at any 

time pursuant to K.S.A. 2020 Supp. 22-3504(a). See State v. Lehman, 308 Kan. 1089, 

1093, 427 P.3d 840 (2018). The classification of prior convictions involves statutory 

interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2019 

Supp. 21-6801 et seq., which presents a question of law over which we have unlimited 

review. State v. Terrell, 315 Kan. 68, Syl. ¶ 1, 504 P.3d 405 (2022). 

Whenever possible, we are to discern the meaning of a statute based on its plain 

language. State v. Pattillo, 311 Kan. 995, 1004, 469 P.3d 1250 (2020). However, we are 

also to consider the relevant definitions of the statutory elements of the prior crime when 

comparing it to a Kansas offense in effect at the time the current crime was committed. 

See State v. Gensler, 308 Kan. 674, 682, 423 P.3d 488 (2018). Prior convictions include 

those from Kansas as well as convictions from out-of-state jurisdictions. K.S.A. 2019 

Supp. 21-6811(e), (f). 
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Kansas courts are to follow a two-step process to classify an out-of-state 

conviction for criminal history. First, the court must categorize the prior conviction as 

either a felony or misdemeanor offense. K.S.A. 2019 Supp. 21-6811(e)(2)(B). Here, it is 

undisputed that Chappell's Colorado convictions at issue on appeal were misdemeanors. 

See Colo. Rev. Stat. § 18-3-204(3). Second, the court must determine whether the out-ofstate conviction should be classified as a person or nonperson offense under K.S.A. 2019 

Supp. 21-6811(e)(3)(A).

To support a finding that Chappell had a criminal history score of B, the district 

court needed to find that he had at least two person felony convictions in his criminal 

history. K.S.A. 2019 Supp. 21-6809. A review of the record reveals that the district court 

adopted the findings of the PSI that indicated Chappell had two prior Colorado 

misdemeanor convictions for assault in the third degree and determined that they should 

be converted to person misdemeanor battery convictions under Kansas law. Treating the 

two Colorado convictions as person misdemeanors, the district court then combined them 

with another prior person misdemeanor conviction—which was not challenged by 

Chappell—to constitute a person felony. Consequently, the district court concluded that 

Chappell's criminal history score is B. See K.S.A. 2019 Supp. 21-6809.

A court's authority to classify an out-of-state misdemeanor conviction as a person 

offense or nonperson offense is controlled by K.S.A. 2019 Supp. 21-6811(e)(3)(A). Here, 

the parties agree that the Kansas Supreme Court's holding in State v. Wetrich, 307 Kan. 

552, 412 P.3d 984 (2018), is applicable. In Wetrich, our Supreme Court interpreted the 

term "comparable"—as used in the revised KSGA, K.S.A. 2019 Supp. 21-6801 et seq.—

to mean that "the elements of the out-of-state crime cannot be broader than the elements 

of the Kansas crime. In other words, the elements of the out-of-state crime must be 

identical to, or narrower than, the elements of the Kansas crime to which it is being 

referenced." 307 Kan. at 562. Although the Kansas Legislature amended K.S.A. 21-
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6811(e)(3) in 2019 to clarify when a felony offense should be classified as a person or 

nonperson crime, the test for misdemeanor convictions was not amended.

It is undisputed that the district court found the Colorado crime of misdemeanor 

assault in the third degree to be comparable to the Kansas crime of aggravated battery. 

On appeal, the State concedes that this was an incorrect comparison. Instead, the State 

suggests that the Colorado offense should be compared to the Kansas crime of battery. As 

such, we will examine both the Colorado and Kansas statutes. 

Under Colo. Rev. Stat. § 18-3-204(1)(a): 

"(1) A person commits the crime of assault in the third degree if: 

"(a) The person knowingly or recklessly causes bodily injury to another person or 

with criminal negligence the person causes bodily injury to another person by means of a 

deadly weapon . . . ."

The Kansas battery statute, K.S.A. 2019 Supp. 21-5413(a), defines battery as: 

"(1) Knowingly or recklessly causing bodily harm to another person; or 

"(2) Knowingly causing physical contact with another person when done in a rude, 

insulting, or angry manner."

Both statutes expressly state that the criminal conduct is causing harm or injury "to 

another person" so it would be logical to conclude that the offenses committed in 

violation of these statutes would be person crimes. However, under the "legal fiction" 

created by Wetrich, the answer is not so simple. As Chappell points out, the Colorado 

statute provides that a defendant can be convicted for "criminal negligence" under certain 

circumstances while the Kansas statute speaks only to "knowingly or recklessly" 

committing the offense. As a result, Chappell argues that the Colorado statute is broader 

than the Kansas statute. See State v. Rodriguez, 305 Kan. 1139, Syl. ¶ 5, 390 P.3d 903 
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(2017) (holding that an out-of-state misdemeanor that requires the defendant to act only 

with criminal negligence is not comparable to a Kansas offense that requires the 

defendant to act recklessly).

Nevertheless, our analysis does not end here. Because Colorado's crime of assault 

in the third degree is a divisible statute, we may also look to the underlying facts to 

determine which elements of the Colorado crime should be compared. This process is 

referred to as the modified categorical approach, which does not allow the court to 

consider the underlying facts for the purposes of comparability but does serve as a tool to 

assist in comparing the elements of the crimes. See Gensler, 308 Kan. at 682-84. As a 

result, the State points to documents in the record that it claims unequivocally indicate 

that Chappell was convicted of "knowingly or recklessly" causing bodily injury to 

another person and was not convicted of "criminal negligence" relating to the use of a 

deadly weapon. 

The documents in the record list Chappell's conviction as being under Colo. Rev. 

Stat. § 18-3-204(3)(a), which includes knowing and reckless conduct as well as 

criminally negligent conduct. However, the documents further note: "ASSAULT 3-

KNOW/RECKLESS CAUSE INJURY." As such, it is certainly possible that this 

notation means that Chappell was convicted under the "knowingly or recklessly" portion 

of Colo. Rev. Stat. § 18-3-204(3)(a). However, it is also possible that this notation merely 

provides an abbreviated way to refer to any conviction under the statute. Based on the 

current state of the record, we are unfortunately unable to make this determination. 

Under these circumstances, we find that a remand is appropriate to allow the 

district court the opportunity to determine Chappell's correct criminal history score. See 

State v. Ewing, 310 Kan. 348, 359-60, 446 P.3d 463 (2019). On remand, the district court 

should use the "'modified categorical approach,'" which allows the examination of 

"'charging documents, plea agreements, transcripts of plea colloquies, findings of fact and 
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conclusions of law from a bench trial, and jury instructions and verdict forms'" to

determine which statutory alternative was the basis for Chappell's convictions for assault 

in the third degree. State v. Obregon, 309 Kan. 1267, 1274, 444 P.3d 331 (2019). Once

this is done, the district court should resentence Chappell based on the correct criminal 

history score. 

Sentence vacated and case remanded for resentencing.