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NOT DESIGNATED FOR PUBLICATION

No. 121,517

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

COLLAN LEIGH CROSS,

Appellant.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed August 28, 

2020. Sentence vacated and case remanded with directions.

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

Taylor A. Hines, assistant district attorney, Mark A. Dupree Sr., district attorney and Derek 

Schmidt, attorney general, for appellee.

Before HILL, P.J., MALONE, J., and WALKER, S.J.

PER CURIAM: Collan Leigh Cross appeals his sentence following his convictions 

of second-degree murder, aggravated assault on a law enforcement officer, and felony 

fleeing to elude. At sentencing, the district court scored three Kansas City, Missouri

municipal ordinance violations as person misdemeanors and converted them to one 

person felony. Cross claims the district court erred by scoring his prior Missouri 

municipal ordinance violations as person misdemeanors. We agree with Cross' claim, so 

we vacate his sentence and remand for resentencing.
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We will briefly review the relevant facts. On March 22, 2019, Cross pled guilty to 

second-degree murder, aggravated assault on a law enforcement officer, and felony 

fleeing to elude in exchange for dismissal of other charges. Cross committed his crimes

on September 20, 2018. At the plea hearing, both parties believed Cross would have a 

criminal history score of H. But the presentence investigation report stated Cross had a 

criminal history score of D based in part on the conversion of three Kansas City, Missouri

municipal ordinance violations—two for assault and one for violating a protection 

order—to a person felony.

On June 13, 2019, the district court held a sentencing hearing. Cross objected to 

his criminal history score, arguing that his municipal ordinance violations could not be 

considered out-of-state convictions and, thus, should not be counted in his criminal 

history score. The State argued that the ordinance violations should be considered person 

misdemeanors. The district court agreed with the State. Finding Cross' criminal history 

score to be D, the district court sentenced him to 214 months' imprisonment with 36 

months' postrelease supervision. Cross timely appealed his sentence.

On appeal, Cross claims the district court erred in scoring his prior Missouri 

municipal ordinance violations as person misdemeanors for two reasons. First, Cross 

argues that his Missouri municipal ordinance violations cannot be scored as person 

misdemeanors because they are not considered "out-of-state convictions." Second, Cross 

argues that even if they fit the definition of out-of-state convictions, they are not "crimes"

that can be scored in an offender's criminal history under the plain language of K.S.A. 

2018 Supp. 21-6811(e)(2). The State responds by asserting that the district court properly 

scored Cross' prior Missouri municipal ordinance convictions as person misdemeanors.

The appellate court can review a claim that the sentencing court erred in 

classifying a prior conviction on appeal from a judgment of conviction. K.S.A. 2018 

Supp. 21-6820(e)(3). Classification of prior convictions for criminal history purposes 
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involves interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 

2018 Supp. 21-6801 et seq. State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). 

Statutory interpretation is a question of law subject to unlimited review. 307 Kan. 555.

The fundamental rules of statutory interpretation are well known:

"When interpreting a statute, an appellate court begins with the fundamental rule 

that the court gives effect to the legislative intent as expressed in the statute. The court 

must apply the statute's plain language when it is clear and unambiguous, instead of 

determining what the law should be, speculating on the legislative intent, or consulting 

the legislative history. The court must derive the legislative intent by first applying the 

meaning of the statute's text to decide its effect in a specific situation. It is only when the 

statutory language is unclear or ambiguous that the court uses the canons of statutory 

construction, reviews the statute's legislative history, or considers other background 

information to ascertain the statute's meaning. [Citation omitted.]" State v. Smith, 309 

Kan. 929, 932-33, 441 P.3d 472 (2019).

Cross' Missouri municipal ordinance violations are considered "out-of-state 

convictions."

Cross committed his crimes in September 2018, so the law in effect at that time 

controls his sentence. Under the KSGA, a defendant's sentence depends on the crime of 

conviction and the defendant's criminal history score. K.S.A. 2018 Supp. 21-6804(d). The 

KSGA counts "[o]ut-of-state convictions" in a defendant's criminal history score. K.S.A. 

2018 Supp. 21-6811(e)(1). "Out-of-state convictions" are "[c]onvictions or adjudications 

occurring within the federal system, other state systems, the District of Columbia, 

foreign, tribal or military courts." K.S.A. 2018 Supp. 21-6811(e)(4).

Cross argues that by its plain language, K.S.A. 2018 Supp. 21-6811(e)(4) omits 

non-Kansas municipal court systems from the types of jurisdictions that produce "out-ofstate convictions." He argues his Missouri municipal ordinance violations are not 
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convictions from "other state systems" because he was not convicted in a Missouri state

court, but instead he was convicted in a municipal court in Missouri. He also argues this 

court should not interpret the word "foreign" in K.S.A. 2018 Supp. 21-6811(e)(4) to 

include his Missouri municipal ordinance violations.

The State turns to K.S.A. 2018 Supp. 21-6810 and argues that this statute requires 

the district court to consider and score municipal ordinance violations. The State also 

argues that the municipal ordinance violations should be considered "out-of-state 

convictions" because a judgment of guilt was entered against Cross by a Missouri court.

Cross' argument that out-of-state municipal ordinance violations are not "out-ofstate convictions" fails for three reasons. First, the KSGA explicitly states that municipal 

ordinance violations are to be considered in determining a defendant's criminal history. It 

states criminal history includes prior "convictions and adjudications for violations of 

municipal ordinances . . . which are comparable to any crime classified under the state 

law of Kansas as a person misdemeanor." K.S.A. 2018 Supp. 21-6810(a). It also states

that "all municipal ordinance and county resolution violations comparable to such 

misdemeanors, shall be considered and scored." K.S.A. 2018 Supp. 21-6810(d)(6).

Second, Cross' argument that municipal courts are not covered by the definition of 

"out-of-state convictions" in K.S.A. 2018 Supp. 21-6811(e)(4) is too narrow and contrary 

to the plain language of the statute. Cross' argument is essentially that K.S.A. 2018 Supp. 

21-6811(e)(4) only refers to convictions from "other state courts." But the statute refers to 

"other state systems." The word "system" implies a structure or organization of multiple 

courts not just a single court. Further, based on the types of convictions the KSGA 

considers, including municipal ordinance violations and juvenile adjudications, "state 

systems" must broadly refer to all courts in other states that issue the convictions and 

adjudications scored by the KSGA. Thus, Cross' municipal ordinance violations are "outof-state convictions" because they are convictions from "other state systems."
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Finally, even if the statute only referred to "state courts," Cross' argument that the 

Kansas City municipal court is somehow separate from the "Missouri state system" is not 

supported by law. Mo. Rev. Stat. § 479.010 (2007) states: "Violations of municipal 

ordinances shall be heard and determined only before divisions of the circuit court."

Thus, by law, the municipal court is a division of the Missouri circuit court.

In sum, out-of-state municipal ordinance violations are considered "out-of-state 

convictions" because the KSGA explicitly counts such convictions and municipal courts 

are covered by the phrase "other state systems" in K.S.A. 2018 Supp. 21-6811(e)(4).

Cross' Missouri municipal ordinance violations are not considered crimes.

When an out-of-state conviction is used in classifying an offender's criminal 

history under the KSGA, the out-of-state "crime" is classified as either a felony or 

misdemeanor according to the convicting jurisdiction and it is classified as either a 

person or nonperson crime by the state of Kansas. K.S.A. 2018 Supp. 21-6811(e). In 

classifying the crime as either a felony or a misdemeanor, the KSGA states:

"(2) An out-of-state crime will be classified as either a felony or a misdemeanor 

according to the convicting jurisdiction. 

(A) If a crime is a felony in the convicting jurisdiction, it will be counted as a 

felony in Kansas.

(B) If a crime is a misdemeanor in the convicting jurisdiction, the state of Kansas 

shall refer to the comparable offense under the Kansas criminal code in effect on the date 

the current crime of conviction was committed to classify the out-of-state crime as a class 

A, B or C misdemeanor. If the comparable offense in the state of Kansas is a felony, the 

out-of-state crime shall be classified as a class A misdemeanor. If the state of Kansas 

does not have a comparable offense in effect on the date the current crime of conviction 

was committed, the out-of-state crime shall not be used in classifying the offender's 

criminal history.
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(C) If a crime is not classified as either a felony or a misdemeanor in the 

convicting jurisdiction, the state of Kansas shall refer to the comparable offense under the 

Kansas criminal code in effect on the date the current crime of conviction was committed 

to classify the out-of-state crime as either a felony or a misdemeanor. If the state of 

Kansas does not have a comparable offense in effect on the date the current crime of 

conviction was committed, the out-of-state crime shall not be used in classifying the 

offender's criminal history." (Emphases added.) K.S.A. 2018 Supp. 21-6811(e)(2).

Cross argues that his Missouri municipal ordinance violations are not "crimes"

and, thus, they cannot be scored in an offender's criminal history under the plain language 

of K.S.A. 2018 Supp. 21-6811(e)(2). He cites various Missouri cases to support his 

assertion that Missouri ordinance violations are only quasi-criminal and not considered 

crimes under Missouri law. Cross also cites the Kansas Supreme Court's recent decision 

in Smith and argues that our Supreme Court agrees that Missouri municipal ordinance 

violation are not "crimes" that can be used to determine an offender's criminal history.

The State argues that the district court properly scored the municipal violations as

person misdemeanors because, although Missouri did not classify them as either a felony 

or misdemeanor, under K.S.A. 2018 Supp. 21-6811(e)(2)(C) they were comparable to the 

Kansas person crimes of battery and violation of a protection order. The State also argues 

the factual basis for Cross' violations is consistent with criminal behavior.

Cross is correct that his Missouri municipal ordinance violations are not crimes.

Missouri law holds city ordinance violations are not crimes and are only quasi-criminal. 

See City of Kansas City v. McGary, 218 S.W.3d 449, 452 (Mo. Ct. App. 2006); City of 

Kansas City v. Harris, 772 S.W.2d 898, 900 (Mo. Ct. App. 1989) (citing Frech v. City of 

Columbia, 693 S.W.2d 813, 814 [Mo.1985]). Also, under the Kansas City, Missouri

Municipal Code, the violations Cross committed are not scored as either felonies or 

misdemeanors, although some Kansas City, Missouri municipal violations are classified

as such. Compare Kansas City, Missouri Municipal Code Sections 50-47 (violation of a 
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protection order) and 50-169 (inflicting bodily injury) with Section 14-60(c)(2) (second 

violation of failing to spay or neuter a pit bull, which is a misdemeanor).

In Smith, the Kansas Supreme Court considered whether an out-of-state municipal 

ordinance violation can be used in determining an offender's criminal history when the 

convicting jurisdiction fails to classify the offense as either a misdemeanor or a felony.

Smith argued that his Lake Lotawana, Missouri ordinance violation for endangering the 

welfare of a child was not a criminal conviction because Missouri considers municipal 

ordinance violations only quasi-criminal in nature. The Court of Appeals found that the 

district court erred in counting Smith's Missouri ordinance violation as a person 

misdemeanor "'[b]ecause the KSGA is silent on how to classify an out-of-state ordinance 

violation when the convicting jurisdiction does not consider an ordinance violation to be 

a crime.'" 309 Kan. at 938 (quoting the panel's reasoning).

On review, our Supreme Court analyzed the language in K.S.A. 2015 Supp. 21-

6811(e)(2) and discussed conflicting interpretations of the language in Court of Appeals 

decisions. Our Supreme Court recognized that the Legislature had recently amended the 

statute to include K.S.A. 2018 Supp. 21-6811(e)(2)(C), addressing when a crime is not 

classified as either a felony or a misdemeanor in the convicting jurisdiction, but found 

that the amendment did not apply to Smith's case. 309 Kan. at 938-39. Our Supreme 

Court found that under K.S.A. 2015 Supp. 21-6811(e)(2), "the statute's plain language 

precludes the district court's designation of this offense as a misdemeanor because 

Smith's ordinance violation is neither a felony nor a misdemeanor 'according to the 

convicting jurisdiction.'" 309 Kan. at 939. The court then concluded:

"In Smith's case, the ordinance violation is not a crime under Missouri state law. And 

even if it were, the Lake Lotawana Municipal Code, which is the applicable jurisdiction, 

cannot serve as authority for such an upgrading because it specifically lists some other 
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offenses as misdemeanors—but not this one, i.e., endangering a child's welfare." 

(Emphasis added.) 309 Kan. at 939.

Thus, our Supreme Court found that Smith's Missouri municipal ordinance 

violation could not be included in his criminal history because an ordinance violation is 

not a crime under Missouri state law. 309 Kan. at 939. The court also found that the Lake 

Lotawana Municipal Code does not designate endangering a child's welfare as either a 

felony or a misdemeanor, while it uses those designations for other violations, and there 

was no applicable Kansas statute in Smith's case discussing how to classify a crime that is 

not a felony or a misdemeanor in the convicting jurisdiction. 309 Kan. at 939.

Unlike in Smith, the amendment adding K.S.A. 2018 Supp. 21-6811(e)(2)(C), 

addressing when a crime is not classified as either a felony or a misdemeanor in the 

convicting jurisdiction, does apply to Cross' case. But the recent statutory amendment 

does not change the outcome of this case. K.S.A. 2018 Supp. 21-6811(e)(2)(C) applies 

"[i]f a crime is not classified as either a felony or a misdemeanor in the convicting 

jurisdiction." (Emphasis added.) Under our Supreme Court's analysis in Smith, even if the 

language at K.S.A. 2018 Supp. 21-6811(e)(2)(C) was applied, Cross' Missouri municipal 

ordinance violations still would not be considered in determining his criminal history 

score because an "ordinance violation is not a crime under Missouri law." 309 Kan. at 

939. Stated differently, if Cross' municipal ordinance violations were from any other state

except Missouri, then we might apply K.S.A. 2018 Supp. 21-6811(e)(2)(C) to determine 

whether the violations should be scored as either a felony or a misdemeanor. But because 

Cross' municipal ordinance violations are from Missouri, and municipal ordinance 

violations are not crimes under Missouri state law, they cannot be used to determine his 

criminal history score in Kansas.

The Kansas Court of Appeals is duty-bound to follow Kansas Supreme Court 

precedent unless there is some indication that our Supreme Court is departing from its 
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previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). This 

precept means that we must also follow the analysis used by our Supreme Court in 

reaching its decisions. We conclude that our Supreme Court's analysis in Smith controls 

the outcome of this case. Because Cross' Missouri municipal ordinance violations are not 

considered crimes, they cannot be used to determine his criminal history score in Kansas. 

Thus, we vacate Cross' sentence and remand to the district court with directions not to 

include Cross' Missouri municipal ordinance violations to determine his criminal history.

Sentence vacated and case remanded with directions.