1 NOT DESIGNATED FOR PUBLICATION

No. 123,512

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee
,

v.

L ARRY D. R OBINSON , Appellant

.
MEMORANDUM OPINION

Appeal from Douglas District Court; A MY J. H ANLEY , judge. Opinion filed March 18 , 2022.
Affirmed.

Jennifer C. Roth , of Kansas Appellate Defender Office, for appellant

.

Emma Halling , assistant district attorney, Suzanne Valdez , district attorney, an d Derek Schmi d t , attorney general, for appellee

.

B efore H URST , P.J., G ARDNER , J., and P ATRICK D. M C A NANY , S.J.

P ER C URIAM : Larry D. Robinson was found guilty of criminal threat and misdemeanor domestic battery following his nolo contendere pleas

. His presentence investigation report calculated his criminal history score as A based on the inclusion in his criminal history of a juvenile adjudication for criminal threat , a prior adult criminal threat conviction, a nd prior adult convictions for attempted aggravated burglary and conspiracy to commit aggravated burglary.

R obinson objected to his criminal history score on the grounds that his juvenile adjudication for battery on a detention officer had decayed and sh ould not be scored. He2

also argued that his previous criminal threat conviction should not be included because our Supreme Court found the statute under which he had been convicted was unconstitutional. Finally, he argued that his prior convictions for con spiracy to commit aggravated burglary and attempted aggravated burglary should be scored as nonperson
felonies.

The State agreed with Robinson ' s objection s to including his juvenile adjudication
and his adult criminal threat conviction in calculating his criminal history score . But the
State contended that Robinson ' s convictions for conspiracy to commit aggravated burglary and attempted aggravated burglary were properly scored as person felonies.

At sentencing, the district court agreed that Robinson ' s juvenile adjudication and his prior adult criminal threat conviction should not be incl uded in calculating Robinson ' s criminal history score. But the court scored Robinson ' s p rior convictions for conspiracy to commit aggravated burglary and attempted aggravated burglary as person felonies
, resulting in a criminal history score of B and a guideline s sentence for his current 2019
criminal threat conviction , a severity level 9 person felon y, that called for presumptive prison . See K.S.A. 2020 Supp. 21

- 5415(a)(1), (c)(1) ; K.S.A. 2020 Supp. 21

- 6804(a)

. Nevertheless, the court granted Robinson ' s motion for a dispositional departure and sentenced him to 12 months of probation, with an underlying 14

- month pr ison sentence
for his criminal threat conviction and a consecutive 6

- month jail term for his misdemeanor domestic battery conviction, resulting in 20 months ' imprisonment for the underlying sentence.

Robinson appeals, contending that the district court erred in scor ing his prior convictions for conspiracy to commit aggravated burglary and attempted aggravated burglary as person felonies rather than as non person felonies

.3

C lassification of prior off enses for criminal history purposes involves statutory interpretation , which is a n issue of law over which our review is unlimited. State v.
Wetrich , 307 Kan. 552, 555, 412 P.3d 984 (2018)

.

The outcome of this case is controlled by the recent decision of our Supreme Court
i n State v. Terrell
, 315 Kan. ___, 2022 WL 497319 ( 20 22 ) , which was filed on February 18, 2022 , after Robinson had filed his appellate brief in this case. In Terrell , 315 K an. ___, Syl. ¶ 2, o ur Supreme Court clarified how convictions should be scored for criminal history purposes under the Kansas Sentencing Guidelines Act, K.S.A. 2020 Supp. 21

- 6801 et seq.

T errell pled guilty to aggravated escape from custody
, a severity level 5 nonperson felony. He previously had been convicted in 2005 of an offender registration violation. Even though Terrell ' s registration violation was classified as a nonperson felony in 2005
, it was reclassified as a person felony under St ate v. Keel , 302 Kan. 560, 357 P.3d 251 (2015) , in connection with Terrell ' s current aggravated escape conviction. Terrell
, 2022 WL 497319, at *1

.

On appeal, Terrell argued that his offender violation conviction should have been scored as a nonperson fel ony because that is how it was designated when he committed
the crime . The State argued that t he conviction should be scored as a person felony because the crime is currently designated as such. O ur Supreme Court concluded
, consistent with the legislative intent that the sentencing guidelines standardize sentences
so that similarly situated offenders are treated the same, that " all prior convictions,
whether out

- of

- state, pre

- guidelines, or amended post

- guidelines, be classif ied as person or nonperson as of the time the new infraction is committed. " 2022 WL 497319, at *5

. Under the plain language of this decision, " all prior convictions " would include
Robinson ' s prior convictions for conspiracy to commit aggravated burglary an d attempted aggravated burglary

. Terrell applies to Robinson because his direct appeal was pending at4

the time Terrell was handed down. See State v. Williams , 311 Kan. 88, 95, 459 P.3d 540 (2020) (citing State v. Murdock , 309 Kan. 585, 591

- 92, 439 P.3d 307 [2019]).

When Robinson committed his current crime in May 2019
, aggravated burglary

wa s a person felony. See K.S.A. 20 18 Supp. 21

- 5807(c)(2)

. P rior felony convictions for attempt and conspiracy " shall be treated as a person or nonperson crime in accordance with the designation assigned to the underlying crime. " K.S.A. 2020 Supp. 21

- 6811(g)

. Thus, Robinson ' s convictions for attempted aggravated burglary and conspiracy to commit aggravated battery are both person felon ies

.

Robinson relies on Keel
, 302 Kan. 560, for support. Keel does not apply. It
address ed a specific problem

— pre

- guidelines felonies that did not fit the new sentencing procedures. Terrell
, 2022 WL 497319, at *3

. But here, Robinson ' s attempted aggravated burglary and conspiracy to commit aggravated burglary convictions took place long after
the Legislature enacted the sentencing guidelines

.

Robinson also relies on K.S.A. 2020 Supp. 21

- 6811(e)(3)(B)

. This subsection of
the statute d oes not apply. It deals exclusively with out

- of

- state convictions. Robinson ' s convictions for attempted aggravated burglary and conspiracy to commit aggravated burglary both took place in Kansas. K.S.A. 2020 Supp. 21

- 6811(e)(3)(B) does not apply.

Terrell controls. T he district court did not err when it scored Robinson ' s previous convictions for attempted aggravated burglary and conspiracy to commit aggravated burglary as person felonies.

Affirm ed.