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NOT DESIGNATED FOR PUBLICATION

No. 123,512

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

LARRY D. ROBINSON,

Appellant.

MEMORANDUM OPINION

Appeal from Douglas District Court; AMY J. HANLEY, 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, and Derek Schmidt, 

attorney general, for appellee.

Before HURST, P.J., GARDNER, J., and PATRICK D. MCANANY, S.J.

PER CURIAM: 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, and prior adult convictions for attempted aggravated burglary and 

conspiracy to commit aggravated burglary. 

Robinson objected to his criminal history score on the grounds that his juvenile 

adjudication for battery on a detention officer had decayed and should not be scored. He 
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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 conspiracy to commit 

aggravated burglary and attempted aggravated burglary should be scored as nonperson 

felonies. 

The State agreed with Robinson's objections 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 included in calculating Robinson's 

criminal history score. But the court scored Robinson's prior convictions for conspiracy 

to commit aggravated burglary and attempted aggravated burglary as person felonies, 

resulting in a criminal history score of B and a guidelines sentence for his current 2019

criminal threat conviction, a severity level 9 person felony, 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 prison 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 scoring his prior 

convictions for conspiracy to commit aggravated burglary and attempted aggravated 

burglary as person felonies rather than as nonperson felonies. 
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Classification of prior offenses for criminal history purposes involves statutory 

interpretation, which is an 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 

in State v. Terrell, 315 Kan. ___, 2022 WL 497319 (2022), which was filed on February 

18, 2022, after Robinson had filed his appellate brief in this case. In Terrell, 315 Kan. 

___, Syl. ¶ 2, our 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. 

Terrell 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 State 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 felony because that is how it was designated when he committed 

the crime. The State argued that the conviction should be scored as a person felony 

because the crime is currently designated as such. Our 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 classified 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 and attempted 

aggravated burglary. Terrell applies to Robinson because his direct appeal was pending at 
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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 

was a person felony. See K.S.A. 2018 Supp. 21-5807(c)(2). Prior 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 felonies. 

Robinson relies on Keel, 302 Kan. 560, for support. Keel does not apply. It 

addressed 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 does 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. The 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.

Affirmed.