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No. 120,993

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

TYLER WAYNE LYON,

Appellant.

SYLLABUS BY THE COURT

1. 

When reviewing a due process claim, courts first determine whether a protected 

liberty or property interest is involved. If a protected interest is implicated, the court must 

determine the nature and extent of the process that is due. But a due process violation 

exists only if the complaining party shows that he or she was denied a specific procedural 

protection to which he or she is entitled.

2. 

Although a district court's decision to impose probation is an act of grace subject 

to judicial discretion, once granted probation, the probationer acquires a conditional 

liberty interest subject to substantive and procedural due process limits on its revocation.

The protections contained in K.S.A. 2018 Supp. 22-3716 satisfy all constitutional due 

process requirements necessary in probation revocation proceedings.

3. 

When calculating a defendant's criminal history, a sentencing court considers the 

person's prior Kansas and out-of-state convictions and classifies each conviction as a 

person or nonperson offense.
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4. 

For an out-of-state offense or Kansas crime committed before implementation of 

the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq., to be 

comparable to a current offense under the Kansas criminal code, within the meaning of 

K.S.A. 2017 Supp. 21-6811(e)(3) and K.S.A. 2017 Supp. 21-6810(d), the earlier crime's 

elements cannot be broader than the elements of the current Kansas crime that is being 

considered. As a result, a prior out-of-state offense or pre-KSGA crime must have 

elements identical to or narrower than a current Kansas person crime to be scored as a 

person offense for criminal history purposes. 

5.

A defendant's prior Kansas crime committed post-implementation of the Kansas 

Sentencing Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq., may be scored 

as a person offense for criminal history purposes even if the elements of the prior version 

of the offense are broader than the elements of the current version of the crime. When the 

statute under which the prior post-KSGA conviction was committed is still in effect, the 

KSGA simply points the sentencing court to that statute to determine how to designate 

the prior conviction.

6.

K.S.A. 2017 Supp. 21-6810(d)(8), which provides that "[p]rior convictions of a 

crime defined by a statute that has since been repealed shall be scored using the 

classification assigned at the time of such conviction," may apply only when classifying 

prior Kansas crimes committed post-implementation of the Kansas Sentencing 

Guidelines Act, K.S.A. 2019 Supp. 21-6801 et seq.

7.

A Kansas crime committed post-implementation of the Kansas Sentencing 

Guidelines Act, K.S.A. 2019 Supp. 21-6801 et seq., is properly scored as a person 
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offense if the crime was classified as a person offense when it was committed and when 

the current crime of conviction was committed even if the prior version of the earlier 

crime's elements are broader than the elements of the current version. 

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed July 24, 2020. 

Affirmed.

James M. Latta, 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 BRUNS, P.J., GREEN, J., and TIMOTHY J. CHAMBERS, District Judge,

assigned.

CHAMBERS, J.: Tyler Wayne Lyon appeals the revocation of his probation and his 

sentence. The first issue is straightforward. Were Lyon's due process rights violated when 

the district court found he violated the terms of his probation by committing the crime of 

domestic battery when the State alleged he committed the crime of aggravated battery? 

The second issue enters us into the labyrinth of classification of prior crimes under the 

Kansas Sentencing Guidelines Act. Did the district court err by classifying his 2010 

Kansas aggravated burglary conviction as a person felony when calculating his criminal 

history score? For the reasons set out below, we affirm the district court on both issues. 

FACTUAL AND PROCEDURAL BACKGROUND

On September 9, 2017, Lyon got into an argument with his brother in the presence 

of Lyon's girlfriend, their two-year-old son, and a friend. The argument escalated when 

Lyon went into his bedroom and retrieved a handgun. Lyon pointed the gun at his brother 

who pushed the gun away. Lyon then began striking his brother with the gun. The gun 
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discharged with the bullet passing through the brother's shoulder and striking the friend in 

the leg. Lyon was arrested and charged with multiple crimes as a result of the incident.

Pursuant to a plea agreement entered with the prosecution, Lyon pled guilty to two 

counts of aggravated battery and one count of criminal possession of a firearm. Lyon pled 

no contest to an additional charge of endangerment of a person. The district court 

accepted the pleas, and Lyon was found guilty of the four crimes.

A presentence investigation (PSI) report calculated Lyon's criminal history score 

as C, determined in part on a 2010 Kansas aggravated burglary conviction being 

classified as a person felony. Based upon his criminal history and crimes of conviction, 

Lyon's sentence was presumptive prison under the Kansas Sentencing Guidelines Act 

(KSGA). 

At sentencing, the parties agreed that Lyon's criminal history score was C in 

accordance with the PSI report. Following the terms of the plea agreement of the parties, 

the district court granted Lyon a dispositional departure placing him on probation for a 

period of 36 months from an underlying prison sentence of 94 months. The district court 

noted that Lyon received "one heck of a plea agreement . . . usually people who commit 

these kinds of acts . . . end up in prison." Conditions of Lyon's probation included 

prohibitions against breaking any laws and from consuming alcohol.

Approximately four months following sentencing, a warrant was issued alleging 

Lyon violated the conditions of his probation by disobeying a law and consuming 

alcohol. Specifically, the warrant alleged Lyon "committed the offense of Aggravated 

Battery/Domestic Violence" and "consumed alcohol" as alleged in a police report. Lyon 

contested the allegations. 
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The district court held an evidentiary hearing on the alleged probation violations. 

Lyon's now ex-girlfriend, C.D., testified she and Lyon got into an argument because she 

suspected he was talking to another woman. C.D. testified she threatened Lyon with a 

belt and tried pushing him so she could leave the room. C.D. indicated some difficulty in 

remembering the events that took place, but she believed Lyon either grabbed or pushed 

her around the neck and chest area causing her to fall. C.D. lost consciousness and 

sustained a laceration to the back of her head. While C.D. did not see Lyon drink alcohol 

that day, she saw a beer can lying on the counter or table next to the couch and presumed 

it belonged to Lyon.

Lyon testified in his defense admitting he pushed C.D. Lyon testified in the course 

of the argument C.D. was following him around the house and shoving him. While in the 

kitchen, Lyon claimed he pushed C.D. because he thought she was going to hit him or 

grab a knife. According to Lyon, C.D. tripped and fell over a rug when he pushed her. 

Lyon also admitted drinking a beer that day. In closing argument, Lyon admitted to the 

consumption of alcohol but argued his actions against C.D. were justified as self-defense 

and the evidence failed to establish aggravated battery as alleged in the probation 

violation warrant.

The district court found Lyon had pushed C.D. to the ground and, as a result of the 

push, C.D. suffered head injuries. The judge noted the size discrepancies of the parties. 

C.D. is 5 feet, 2 inches tall and weighed about 135 pounds. Lyon is 6 feet 2 inches tall 

and weighed about 305 pounds. Utilizing his ability to judge the credibility of the 

witnesses, the judge determined Lyon's use of force was not justified as self-defense.

After reading the definition of domestic battery as set out in K.S.A. 2018 Supp. 

21-5414(a), the trial judge found that Lyon had committed the offense of domestic 

battery under both subsection (a)(1) and subsection (a)(2) of the statute. As a result, the 

district court ruled Lyon had violated the terms of his probation by violating a law and 
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consuming alcohol. The trial judge specifically found an aggravated battery had not been 

committed, but rather the misdemeanor offense of domestic battery had been committed.

The district court considered intermediate sanctions but determined they would be 

inappropriate considering the previously granted departure sentence and the commission 

of a new crime involving violence. Lyon's probation was revoked, and the underlying 

sentence ordered executed.

Lyon appeals.

REVOCATION OF PROBATION

Lyon first contends the district court erred in revoking his probation when it found 

that he violated the terms of his probation by committing the new crime of domestic 

battery. Lyon claims this finding violated his due process rights because the State failed 

to allege that he committed a domestic battery in the probation violation warrant. 

A district court's decision to revoke probation involves two steps: (1) a factual 

determination that the probationer has violated a condition of probation; and (2) a 

discretionary determination as to whether the proved violation warrants revocation of 

probation. State v. Skolaut, 286 Kan. 219, 227-29, 182 P.3d 1231 (2008). The State must 

establish a probation violation by a preponderance of the evidence. State v. Inkelaar, 38 

Kan. App. 2d 312, 315, 164 P.3d 844 (2007). We review the district court's factual 

finding that a violation occurred for substantial competent evidence. Inkelaar, Kan. App. 

2d at 315-16. Once a probation violation has been established, the decision to revoke 

probation rests within the district court's discretion. State v. Hurley, 303 Kan. 575, 580, 

363 P.3d 1095 (2016). When determining whether a district court complied with due 

process requirements in revoking a defendant's probation, we apply an unlimited standard 

of review. 303 Kan. at 580. 
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When reviewing a due process claim, we first determine whether a protected 

liberty or property interest is involved. Village Villa v. Kansas Health Policy Authority, 

296 Kan. 315, 331, 291 P.3d 1056 (2013). While the decision to impose probation is an 

act of grace, once a defendant is granted probation, "he or she acquires a conditional 

liberty interest which is subject to substantive and procedural due process limits on its 

revocation." Hurley, 303 Kan. at 581. Since a protected interest is implicated, we must 

determine the nature and extent of the process that is due. Village Villa, 296 Kan. at 331. 

Due process is flexible in that not all situations calling for procedural safeguards 

call for the same kind of procedure. See In re Care & Treatment of Ellison, 305 Kan. 

519, 526, 385 P.3d 15 (2016). A due process violation exists only if the complaining 

party shows that he or she was denied a specific procedural protection to which he or she 

is entitled. See In re K.E., 294 Kan. 17, 22, 272 P.3d 28 (2012). The basic elements of 

procedural due process are notice and "the opportunity to be heard at a meaningful time 

and in a meaningful manner." Ellison, 305 Kan. at 526. "To satisfy due process, notice 

must be reasonably calculated, under all of the circumstances, to apprise the interested 

parties of the pendency of an action and to afford the parties an opportunity to present 

any objections." Johnson v. Brooks Plumbing, LLC, 281 Kan. 1212, 1215, 135 P.3d 1203 

(2006). 

The revocation of a defendant's probation is not part of a criminal prosecution and, 

therefore, the full panoply of rights in a criminal case is not applicable to a probation 

revocation proceeding. State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012). The 

United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 

2593, 33 L. Ed. 2d 484 (1972), established minimum due process rights for parolees and 

later extended those rights to probationers in Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 

S. Ct. 1756, 36 L. Ed. 2d 656 (1973). These due process rights include written notice of 

the claimed probation violations and disclosure of the evidence against the probationer. 

Hurley, 303 Kan. at 582. Our Supreme Court has held that the statute governing 
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probation revocations—K.S.A. 22-3716—satisfies all constitutional requirements 

necessary in probation revocation proceedings. State v. Rasler, 216 Kan. 292, 296, 532 

P.2d 1077 (1975).

Under K.S.A. 2018 Supp. 22-3716(b)(1), Lyon's intensive supervision officer 

(ISO) was required to "submit in writing a report showing in what manner the defendant 

has violated the conditions" of his probation. In this case, Lyon's ISO submitted a warrant 

specifying that Lyon violated the condition of his probation requiring that he "obey the 

laws of the United States, the State of Kansas and any other jurisdiction to whose laws he 

may be subject." The warrant continued that this condition was violated when "[o]n or 

about October 18, 2018, the defendant committed the offense of aggravated 

battery/domestic violence as alleged in Wichita Police Department Incident Report 

18C068588." 

Lyon argues the district court violated his right to due process by finding he 

committed domestic battery because the warrant alleged that he committed a different 

crime of aggravated battery. Lyon asserts that under the rule of lenity, the warrant's 

assertion that he committed "Aggravated Battery/Domestic Violence" provided notice 

that the State was alleging he committed only aggravated battery with a domestic 

violence designation, as opposed to aggravated battery or any crime of domestic violence. 

Lyon then claims that because the warrant put him on notice of only aggravated battery, 

the district court violated his due process rights when it found he committed a domestic 

battery.

Lyon's argument heavily relies on State v. Scott, No. 115,432, 2017 WL 2210442 

(Kan. App. 2017) (unpublished opinion). An unpublished opinion is not binding 

precedent but may be cited as persuasive value with respect to a material issue not 

addressed in a published opinion of a Kansas appellate court. Supreme Court Rule 

7.04(g)(2)(i) (2020 Kan. S. Ct. R. 4). In Scott, a warrant alleged that Scott appeared to be 
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under the influence of an unknown substance on a specific date. The State claimed this 

violated the condition of Scott's probation that he "shall not possess or consume any type 

of alcohol or drugs unless they are prescribed for him by a licensed physician." 2017 WL 

2210442, at *4. Importantly, this condition allowed Scott to take prescription medications 

and did not address misusing such medications. After an evidentiary hearing showed that 

he misused prescribed medications, the district judge determined that Scott violated his 

probation by either using "an unknown substance or as I have determined . . . knowingly 

misusing his prescribed medications." 2017 WL 2210442, at *2. 

On appeal, our court reversed the order finding Scott in violation of his probation. 

2017 WL 2210442, at *5. The Scott court first concluded that the record did not support 

the finding that Scott was under the influence of any substance other than his prescription 

medication. 2017 WL 2210442, at *4. The court then held that Scott's due process rights 

were violated because the district court relied on a different probation violation than what 

the State alleged in the warrant, concluding: 

"[I]f the State wanted to revoke Scott's probation for misusing his prescription 

medication, due process required that Scott be put on notice of this. Because the State 

failed to plead this misuse in the probation violation warrant, the district court could not 

use Scott's misuse of his prescription medications as a basis to find him in violation of his 

probation." 2017 WL 2210442, at *5.

The circumstances in Scott are materially different from those in this case. 

Therefore, Scott has little persuasive value. Unlike in Scott, the district court's finding 

that Lyon committed a domestic battery means the State proved that he violated a specific 

condition of probation that was alleged in the warrant. Notably, our court has found that 

due process does not require the State to assert that a probationer committed a new crime 

when giving notice of alleged probation violations. State v. McGill, 51 Kan. App. 2d 92, 

97, 340 P.3d 515 (2015). But in this case, the warrant alleged Lyon committed a new 
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crime, specified the type of crime committed, and noted the relevant facts were contained 

in a specific police report. 

Even accepting Lyon's interpretation that "Aggravated Battery/Domestic 

Violence" means only aggravated battery with a domestic violence designation, Lyon 

was given sufficient notice of the violation that the State intended to prove. The warrant's 

language was reasonably calculated to apprise Lyon that the State intended to establish he 

violated his probation by committing a criminal offense when he used violence against 

C.D. on October 18, 2018. 

Moreover, even in prosecutions for charged crimes, the accused may be convicted 

of an offense not included in a complaint if the offense is a lesser included offense of the 

crime charged. State v. Daniels, 223 Kan. 266, Syl. ¶ 5, 573 P.2d 607 (1977); K.S.A. 

2019 Supp. 21-5109(b). This is because "the charging of the greater offense satisfies the 

notice requirements for the lesser offense and the defendant is therefore afforded due 

process." State v. Ramirez, 299 Kan. 224, 228, 328 P.3d 1075 (2014). 

Battery is a lesser included offense of various forms of aggravated battery. State v. 

Williams, 308 Kan. 1439, 1457, 430 P.3d 448 (2018). Because the district court 

determined that Lyon committed domestic battery under either subsections (a)(1) or 

(a)(2) of K.S.A. 2018 Supp. 21-5414, it necessarily found that Lyon committed the crime 

of battery against a person with whom he was involved in a dating relationship or a 

family or household member. See State v. Harris, 46 Kan. App. 2d 848, 851-52, 264 P.3d 

1055 (2011). And since the warrant alleged Lyon's crime was an act of domestic 

violence, he was informed that the State was alleging his victim was a person with whom 

he was involved in a dating relationship or a family or household member. K.S.A. 2019 

Supp. 21-5111(i). As a result, the warrant's allegation that Lyon committed "Aggravated 

Battery/Domestic Violence" satisfied the notice required to find that he committed a 

domestic battery and afforded him the requisite due process. 
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Lyon does not contest the fact substantial competent evidence exists in the record 

to support the trial court's finding that he committed the offense of domestic battery. The 

district court did not violate Lyon's due process rights by finding that he violated his 

probation by committing a domestic battery. As a result, the district court had the 

discretion to bypass intermediate sanctions and revoke Lyon's probation under either 

K.S.A. 2018 Supp. 22-3716(c)(8)(A) or K.S.A. 2018 Supp. 22-3716(c)(9)(B). A 

reasonable person could agree with the district court, and we find no abuse of discretion 

in its decision to revoke Lyon's probation and impose his underlying sentence. 

The district court did not err in revoking Lyon's probation. 

CRIMINAL HISTORY CLASSIFICATION

Lyon next contends the district court erred by classifying his 2010 Kansas 

aggravated burglary conviction as a person felony when calculating his criminal history 

score. Lyon argues this conviction should have been classified as a nonperson felony 

because the elements of the 2010 version of a Kansas aggravated burglary are broader 

than of the elements of the 2017 version of the crime.

Classification of prior offenses for criminal history purposes involves statutory 

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

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

The most fundamental rule of statutory construction is that the intent of the 

Legislature governs if that intent can be ascertained. State v. LaPointe, 309 Kan. 299, 

314, 434 P.3d 850 (2019). An appellate court must first attempt to ascertain legislative 

intent through the statutory language enacted, giving common words their ordinary 

meanings. When a statute is plain and unambiguous, an appellate court should not 

speculate about the legislative intent behind that clear language, and it should refrain 
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from reading something into the statute that is not readily found in its words. State v. 

Ayers, 309 Kan. 162, 163-64, 432 P.3d 663 (2019). 

Although criminal statutes are generally strictly construed against the State, this 

principle is subordinate to the rule that judicial interpretation must be reasonable and 

sensible to effectuate the legislative design and the true intent of the law. State v. Gensler, 

308 Kan. 674, 680, 423 P.3d 488 (2018). When construing statutes to determine

legislative intent, appellate courts must consider various provisions of an act in pari 

materia with a view of reconciling and bringing the provisions into workable harmony if 

possible. The courts must construe statutes to avoid unreasonable or absurd results and 

presume the Legislature does not intend to enact meaningless legislation. State v. Keel, 

302 Kan. 560, 573-74, 357 P.3d 251 (2015). 

Under the KSGA, criminal sentences are based on two controlling factors: the 

defendant's criminal history and the severity level of the crime committed. K.S.A. 2019 

Supp. 21-6804(c). A defendant's criminal history includes an offender's criminal record 

of adult felony convictions, juvenile adjudications, and misdemeanors as provided in 

K.S.A. 2019 Supp. 21-6810. When calculating a defendant's criminal history score, a 

district court lists the defendant's prior convictions and classifies each conviction as a 

person or nonperson offense. K.S.A. 2019 Supp. 21-6810. The KSGA uses prior Kansas 

convictions and prior out-of-state convictions to calculate a defendant's criminal history. 

K.S.A. 2019 Supp. 21-6810; K.S.A. 2019 Supp. 21-6811(e)(1). Prior convictions can 

further be broken down into out-of-state convictions; pre-guideline Kansas convictions; 

and post-guideline Kansas convictions with July 1, 1993 being the date the KSGA went 

into effect.

Once the court has determined the appropriate criminal history score, that history 

score and crime severity level are placed into the appropriate sentencing grid and that 

sentence within the designated box will determine the presumptive sentence for the new 
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crime of conviction. Prior convictions for person crimes will, as a general rule, result in a 

harsher sentence. See K.S.A. 2019 Supp. 21-6809. 

No one can dispute the determination of classification of both out-of-state and preKSGA Kansas convictions, has been a long and at times confusing endeavor. Due to a 

lack of guidance by the Legislature the Kansas courts have had to over a period of many 

years determine what constitutes a comparable offense and the date of determination of 

that comparable offense as set out in the KSGA in relation to out-of- state convictions 

and pre-guideline Kansas convictions. See State v. Vandervort, 276 Kan. 164, 72 P.3d 

925 (2003); State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010); State v. Murdock, 299 

Kan. 312, 323 P.3d 846 (2014); State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015); State 

v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018); State v. Murdock, 309 Kan. 585, 439 

P.3d 307 (2019); and State v. Coleman, 311 Kan. __, 460 P.3d 368 (2020).

The present state of Kansas law requires an out-of-state offense to be comparable 

to a current offense under the Kansas criminal code within the meaning of K.S.A. 2017 

Supp. 21-6811(e)(3) and K.S.A. 2017 Supp. 21-6810(d). The earlier crime's elements 

cannot be broader than the elements of the current Kansas crime being considered. 

Wetrich, 307 Kan. at 562. Similarly, the identical requirement applies to Kansas crimes 

committed before implementation of the Kansas Sentencing Guidelines Act (KSGA). 

Coleman, 460 P.3d at 371. As a result, a prior out-of-state offense or pre-KSGA crime 

must have identical or narrower elements than a current Kansas person crime to be scored 

as a person offense for criminal history purposes.

When we consider classification of post-guideline Kansas convictions do we 

continue on the same path, or do we take a simpler more direct route? "[P]erceived 

simplicity can often conflict with actual simplicity of usage." Wroblewski, The 

Complexity of Simplicity, UX Matters.com (December 4, 2006). Can the conflict be 

reconciled?
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We now turn to Lyon's arguments. 

Lyon contends that the Wetrich identical-or-narrower test applies to his postKSGA Kansas offenses. Lyon reasons that under Keel, classification of his prior 2010 

Kansas aggravated burglary conviction is determined from the classification of the 

"comparable Kansas offense" in effect when he committed his 2017 crime. And relying 

on Wetrich, Lyon claims that a 2017 Kansas offense is comparable to his 2010 Kansas 

crime only if the earlier crime's elements are identical to, or narrower than, the 2017 

version of the crime to which it is being compared. Because a 2010 Kansas aggravated 

burglary is broader than the 2017 version, Lyon suggests there is no comparable person 

offense and his 2010 conviction must be scored as a nonperson offense. 

Since 2010, the Kansas Legislature has recodified the crime, changed the structure 

of the statute, and amended the definition of aggravated burglary. K.S.A. 2017 Supp. 21-

5807(b). The statutory changes added the crime of aggravated burglary of a dwelling, 

K.S.A. 2017 Supp. 21-5807(b)(1). Most important to Lyon's argument, the statutory 

changes removed certain conduct from the scope of aggravated burglary. Under the 2010 

version of aggravated burglary, a person barred from entering a retail establishment who 

later returned during operating hours when others were present with the intent to shoplift 

could have been convicted of aggravated burglary. See State v. Haynes, No. 96,244, 2007 

WL 2239259, at *1 (Kan. App. 2007) (unpublished opinion). But under K.S.A. 2017 

Supp. 21-5807(e), an aggravated burglary no longer included 

"any person entering into or remaining in a retail or commercial premises at any time that 

it is open to the public after having received a personal communication from the owner or 

manager of such premises not to enter such premises pursuant to K.S.A. 21-5808, and 

amendments thereto, except when such person is entering into or remaining in such 

premises with the intent to commit a person felony or sexually motivated crime therein." 
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Since Lyon's 2010 Kansas aggravated burglary is broader than the 2017 version of 

the offense, we must determine whether the Wetrich identical-or-narrower test applies to 

his prior post-KSGA conviction. 

We begin by acknowledging that the KSGA contains no explicit language 

explaining how to classify post-KSGA Kansas convictions as person or nonperson 

offenses for criminal history purposes. But unlike the legislative silence addressed in 

Keel, the lack of a specific provision describing how to score prior post-KSGA 

convictions is inconsequential under the circumstances presented in this case. 302 Kan. at 

573. As explained below, the overall design and structure of the KSGA instructs that 

applying the Wetrich identical-or-narrower test is inappropriate when classifying postKSGA convictions as person or nonperson offenses. 

It is an "established sentencing rule that the penalty parameters for an offense are 

fixed on the date the offense was committed." Keel, 302 Kan. at 582. As a result, Kansas 

courts classify a defendant's prior convictions based on the Kansas classification in effect 

when the current crime was committed. 302 Kan. at 588. Acknowledging this precedent, 

Lyon's prior convictions must be scored as of the date of his current conviction on 

September 9, 2017. 

In his argument, Lyon sinks his teeth into Keel's language that a prior offense must 

be classified based on the classification of the current "comparable Kansas offense" and 

argues this quoted language requires application of the Wetrich identical-or-narrower test 

to determine comparability. However, Lyon's reliance on Keel for his position is not 

convincing. The issue in Keel involved classification of a pre-KSGA offense and not 

post-KSGA offense.

The provisions of the KSGA show that Wetrich's identical-or-narrower test does 

not apply to post-KSGA convictions. K.S.A. 2017 Supp. 21-6810(d) provides that prior 
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convictions and adjudications for pre-KSGA offenses "shall be scored as a person or 

nonperson crime using a comparable offense under the Kansas criminal code in effect on 

the date the current crime of conviction was committed." Similarly, when Lyon was 

sentenced, K.S.A. 2017 Supp. 21-6811(e)(3) required courts to classify out-of-state 

convictions by referring to "comparable offenses under the Kansas criminal code in effect 

on the date the current crime of conviction was committed." Under Wetrich and Coleman, 

the use of comparable offenses under these subsections requires the prior offense to have 

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

A rule of statutory construction provides that courts may presume that "the 

expression of one thing in a statute implies the exclusion of all others." State v. Sims, 40 

Kan. App. 2d 119, 120, 190 P.3d 271 (2008). Because the Legislature made the decision 

to limit the comparability approach found in K.S.A. 2017 Supp. 21-6810(d) and K.S.A. 

2017 Supp. 21-6811(e)(3) to pre-KSGA offenses and out-of-state offenses, we find the 

Legislature did not intend this identical-or-narrower comparison approach to apply to 

post-KSGA offenses. 

This interpretation is reasonable given differences between classifying a postKSGA Kansas conviction and a pre-KSGA Kansas conviction or out-of-state conviction. 

A pre-KSGA or out-of-state conviction has no person or nonperson designation and 

courts must use a comparable post-KSGA offense to determine how the prior conviction 

should be classified. But for post-KSGA convictions, person and nonperson 

classifications were already set out in the applicable Kansas criminal statute. See Keel, 

302 Kan. at 574. As a result, when the statute under which the prior post-KSGA 

conviction is still in effect, the KSGA simply points the court to that statute to determine 

how to designate the prior conviction. 302 Kan. at 580. So unlike prior out-of-state or 

pre-KSGA convictions, there is no comparability requirement for scoring post-KSGA 

convictions. 
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This interpretation is further strengthened by a review of K.S.A. 2017 Supp. 21-

6810(d)(8). Subsection (d)(8) indicates: "Prior convictions of a crime defined by a 

statute that has since been repealed shall be scored using the classification assigned at the 

time of such conviction." When construing statutes to determine legislative intent, appellate 

courts must consider various provisions of an act in pari materia with a view of 

reconciling and bringing the provisions into workable harmony if possible. The courts 

must construe statutes to avoid unreasonable or absurd results and presume the 

Legislature does not intend to enact meaningless legislation. State v. Keel, 302 Kan. 560, 

573-74, 357 P.3d 251 (2015). It would be unreasonable to find a person felony 

classification is retained when a statute is repealed, but when the statute is merely 

amended a determination must be made to determine if the two statutes are comparable 

and based upon that comparison to determine whether the prior crime is classified as a 

person or nonperson offense. 

Accordingly, we find that the Wetrich identical-or-narrower test does not apply to 

scoring Lyon's post-KSGA Kansas conviction of aggravated burglary. 

Lyon presents an alternative argument that the identical-or-narrower test is 

constitutionally mandated by the Sixth Amendment and by failing to use the test the 

district court engaged in constitutionally improper judicial fact-finding in violation of 

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). 

But Lyon's appeal is timely only to the revocation of his probation, and not to a direct 

appeal of his sentence for the 2017 crimes. As a result, we treat Lyon's argument as a 

motion to correct an illegal sentence. See Coleman, 460 P.3d at 475. Because the 

definition of an illegal sentence does not include a claim that the sentence violates a 

constitutional provision, Lyon may not use a motion to correct an illegal sentence to 

argue that his sentence is unconstitutional. State v. Bryant, 310 Kan. 920, 922, 453 P.3d 

279 (2019). Accordingly, we decline to reach the merits of Lyon's constitutional claim.
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Having determined that the identical-or-narrower comparability test does not 

apply to Lyon's post-KSGA offense and his constitutional argument is not properly 

before the court, we now consider whether a repeal of K.S.A. 21-3716 and or K.S.A.

2017 Supp. 21-5807(b) occurred and then if so whether the provisions of K.S.A. 2017 

Supp. 21-6810(d)(8) apply.

Under K.S.A. 2017 Supp. 21-6810(d)(8), "[p]rior convictions of a crime defined 

by a statute that has since been repealed shall be scored using the classification assigned 

at the time of such conviction." This subsection implies that "if the statute has not been 

repealed, then the crime is scored using the classification in the statute at the time of the 

current crime of conviction." Keel, 302 Kan. at 580. So when the statute under which the 

prior conviction was obtained is still in effect, courts simply look to that statute to 

determine how to designate the prior conviction. But in the less common circumstance 

when the Legislature has repealed the post-KSGA criminal statute, courts use the 

classification assigned when the defendant committed the prior offense. 302 Kan. at 580. 

The KSGA does not define what the term "repealed" means in the context of 

K.S.A. 2017 Supp. 21-6810(d)(8). Black's Law Dictionary defines repeal as an 

"[a]brogation of an existing law by express legislative act." Black's Law Dictionary 1553

(11th ed. 2019). Our court has previously found that recodification of a criminal statute 

without a substantive change to the definition of the crime does not amount to a repeal. 

State v. Murray, No. 113,622, 2017 WL 544641, at *9 (Kan. App. 2017) (unpublished 

opinion). The court in Murray further opined that "the legislature presumably wanted to 

provide direction for classifying crimes as person or nonperson offenses in situations 

where a statute defining a crime no longer existed." 2017 WL 544641, at *9. 

In Murray our court held the 2010 recodification of the criminal code was a repeal 

but classified the repeal as a "technical" repeal. Murray, 2017 WL 544641, at *9. In 

Murray, our court considered whether a 1977 robbery conviction should be classified as a 
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nonperson felony based upon K.S.A. 2017 Supp. 21-6810(d)(8). It was argued the 

robbery statute was repealed in the 2010 recodification and therefore the classification 

existing in 1977 for robbery should then be utilized. Since person/nonperson 

classifications did not exist prior to the 1993 adoption of the KSGA, the robbery 

conviction must be classified as a nonperson felony. In the Murray opinion, the court 

found such a result to be unreasonable or absurd and as a result found the recodification 

of the criminal code did not constitute a repeal of previous criminal statutes. 2017 WL 

544641, at *9. Murray as an unpublished opinion has persuasive authority but is not 

binding precedent. Supreme Court Rule 7.04(g)(2)(i). 

An equally strong argument can be made that the 2010 recodification of K.S.A. 

21-3716 was a repeal of a criminal statute under K.S.A. 2017 Supp. 21-6810(d)(8).

Our court has additionally considered the issue of the 2011 recodification of the 

Kansas criminal code in another previous unpublished opinion. In re C.T., No. 107,841,

2012 WL 5205752 (Kan. App. 2012). The case dealt with the application of K.S.A. 21-

3412 to an incident occurring prior to the recodification of the criminal code. Our court 

indicated therein, "Here, K.S.A. 21-3412 was repealed and K.S.A. 2011 Supp. 21-5413 

was enacted by the same legislative action, which was a comprehensive recodification of 

the Kansas Criminal Code." 2012 WL 5205752, at *3. The court then refers to K.S.A. 

2011 Supp. 21-5103(d), the savings clause of the new criminal code which states, "This 

code has no application to crimes committed prior to July 1, 2011. . . . Prosecutions for 

prior crimes shall be governed, prosecuted and punished under the laws existing at the 

time such crimes were committed." In re C.T., 2012 WL 5205752, at *3. 

Kansas Statutes Annotated are replete with criminal statutes including the KSGA 

indicating recodification of the code in 2010 resulted in the repeal of the criminal code 

then existing. Just a few examples include: Kansas Statutes Annotated, Volume 2A

(2019 Supp.) clearly indicates 21-3716, aggravated burglary, was repealed, indicating:
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"Repealed, L. 2010, ch. 136, section 307; July 1, 2011." K.S.A. 2011 Supp. 21-5427(3) 

indicates ". . . any protective order included in K.S.A. 21-4843, prior to its repeal . . . ." 

Within the KSGA itself, it is indicated the criminal code was repealed in the 2010 

recodification. K.S.A. 2019 Supp. 21-6811(d)(1) indicates "if the prior conviction or 

adjudication was classified as a burglary as defined in K.S.A. 21-3715(a), prior to its 

repeal . . . ." K.S.A. 2019 Supp. 21-6804(p) is related to enhancement of severity levels. 

The statute specifically cites aggravated burglary, K.S.A. 21-3716: "for violations of 

K.S.A. 21-3701, 21-3715 or 21-3716, prior to their repeal . . . ."

When construing statutes to determine legislative intent, appellate courts must 

consider various provisions of an act in pari materia with a view of reconciling and 

bringing the provisions into workable harmony if possible. The courts must construe 

statutes to avoid unreasonable or absurd results and presume the Legislature does not 

intend to enact meaningless legislation. Keel, 302 Kan. 573-74.

K.S.A. 2017 Supp. 21-6810(d)(8) can be readily be interpreted in pari materia 

with all provisions of the KSGA in a manner that reconciles and brings the provisions 

into workable harmony. K.S.A. 2017 Supp. 21-6810(d)(8) indicates, "Prior convictions of 

a crime defined by a statute that has since been repealed shall be scored using the 

classification assigned at the time of such conviction." The only instance that a 

classification will be "assigned at the time of such conviction" will be when determining 

a classification of a post-KSGA conviction. K.S.A. 2017 Supp. 21-6810(d)(8) provides 

guidance to the courts of the State of Kansas on how to classify post-KSGA prior 

convictions. K.S.A. 2017 Supp. 21-6810(d)(8) does not apply to prior out of state 

convictions or pre-KSGA Kansas convictions. Such an interpretation is the only way the 

statute can be reconciled with the other provisions of the KSGA and be reasonable in its 

application. It is unreasonable to believe the Legislature intended that with an out of state 

prior conviction a legislative history search is required in the foreign jurisdiction to 

determine if the criminal statute involved has ever been repealed and or amended. The 
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"unreasonable or absurd result" found in the Murray decision would not exist as that case 

dealt with a pre-KSGA conviction.

Our court has considered whether a change in a crime's classification amounts to a 

repeal under K.S.A. 2017 Supp. 21-6810(d)(8). Before the Keel decision, our court held 

that a repeal occurs when a crime is changed from a person offense to a nonperson 

offense. State v. Peoples, No. 102,550, 2010 WL 3984794, at *1 (Kan. App. 2010) 

(unpublished opinion) (holding that prior post-KSGA Kansas identity theft convictions 

must be scored as person felonies because the criminal statute was repealed when identity 

theft was changed from a person felony to a nonperson felony). But in Keel, our Supreme 

Court emphasized that sentences should "reflect ever-evolving sentencing philosophies 

and correction goals," which would include classifying prior identity theft convictions to 

reflect "the current viewpoint on the severity of identity theft." 302 Kan. at 588. Our 

court has since determined that Keel requires prior post-KSGA offenses to be scored 

using the current classification in effect even though the classification had been amended. 

State v. Patrick, No. 116,660, 2018 WL 4373053, at *11 (Kan. App. 2018) (unpublished 

opinion), rev. denied 309 Kan. 1352 (2019). In the present case, we are dealing with 

recodification rather than reclassification. 

If the 2010 recodification of the criminal code did not repeal the code then in 

existence, then what is the effect of the 2016 amendment to the crime of aggravated 

burglary? 

A similar argument can be made that the 2016 amendment to the crime of 

aggravated burglary constituted a repeal of the then existing crime of aggravated 

burglary. The 2016 Kansas Laws, Chapter 90 (H.B. 2462) includes in section 5: "K.S.A. 

2015 Supp. 21-5706, 21-5801, 21-5807, and 21-6804 are hereby repealed." Further, the 

2016 amendment went far beyond reclassification, substantially altering the definition of 

aggravated burglary as previously set out in this opinion.
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In any event, we need not determine whether the recodification and/or statutory 

amendments to aggravated burglary amounted to a repeal because the result would be the 

same. Assuming the recodification and/or amendments were not a repeal, the district 

court properly scored his prior conviction as a person felony because all forms of 

aggravated burglary were a person felony when Lyon committed his current crimes. If the 

recodification and/or amendments amounted to a repeal, the district court properly scored 

his prior conviction as a person felony because aggravated burglary was a person felony 

when Lyon committed that crime. As a result, regardless of the statutory amendments to 

aggravated burglary, the district court properly scored Lyon's prior conviction for 

aggravated burglary as a person offense. 

In simplest terms, we find when a conviction of a prior crime occurs postimplementation of the KSGA, as a matter of practical application, the classification of 

person or nonperson felony determined at the time of the new conviction will be the same 

as the classification of the prior crime on the date of its commission unless the 

Legislature has changed the classification of the crime, Keel, 302 Kan. at 573, or the 

statute has been ruled unconstitutional. K.S.A. 2017 Supp. 21-6810(d)(9). The aggravated 

burglary was a person felony when committed by Lyon in 2010. Aggravated burglary as 

amended remained a person felony when Lyon committed the present crimes in 2017.

"Simplicity is the ultimate sophistication." (Often attributed to Leonardo de Vinci.).

Lyon's 2010 aggravated burglary conviction was properly classified as a person felony. 

Affirmed.