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1 in the SUPREME COURT of the STATE of KANSAS No. 120,853

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1 in the SUPREME COURT of the STATE of KANSAS No. 120,853 IN THE SUPREME COURT OF THE STATE OF KANSAS No. 120,853 STATE OF KANSAS, Appellee, v. COREY EUGENE SAMUELS, Appellant. SYLLABUS BY THE COURT 1. Before May 23, 2019, the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018 Supp. 21-6801 et seq., directed sentencing judges to classify an out-of-state conviction as a nonperson crime if no Kansas crime compared to the out-of-state crime. But if there was a comparable Kansas crime and the Legislature classified it as a person crime, the sentencing judge should classify the out-of-state conviction as a person crime. The sentencing judge considering the comparability of the crimes needed to decide whether the elements of the out-of-state crime were identical to or narrower than a Kansas person crime. 2. The Missouri crime of felony first-degree kidnapping, Mo. Rev. Stat. § 565.110 (2004), is comparable to kidnapping as defined by K.S.A. 2017 Supp. 21-5408, a severity level 3, person felony. A Missouri kidnapping under Mo. Rev. Stat. § 565.110 (2004) thus is classified as a person offense when calculating a defendant's criminal history score under the revised KSGA when sentencing for a crime committed before May 23, 2019. 1 Review of the judgment of the Court of Appeals in an unpublished opinion filed May 1, 2020. Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed July 30, 2021. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. Patrick H. Dunn, of Kansas Appellate Defender Office, was on the briefs for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee. The opinion of the court was delivered by LUCKERT, C.J.: Corey Eugene Samuels argues on appeal that a sentencing judge erred in calculating his criminal history score. He specifically objects to the judge's decision to classify a Missouri kidnapping conviction as a person felony. In April 2018, when Samuels committed the crimes subject to this appeal, the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2017 Supp. 21-6801 et seq., directed sentencing judges to classify an out-of-state conviction as a nonperson crime if no Kansas crime compared to the out-of-state crime. But if there was a comparable Kansas crime and the Legislature classified it as a person crime, the sentencing judge should also classify the out-of-state conviction as a person crime. See K.S.A. 2017 Supp. 21-6811(e)(3). The sentencing judge considering the comparability of the crimes needed to decide whether the elements of the out-of-state crime were identical to or narrower than a Kansas person crime. See State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018). 2 Under the Wetrich test, Mo. Rev. Stat. § 565.110 (2004), which defines the elements of Samuels' kidnapping conviction, is comparable to kidnapping as defined by K.S.A. 2017 Supp. 21-5408, a severity level 3, person felony. The sentencing judge thus correctly classified Samuels' conviction as a person offense. We affirm his sentence. FACTS AND PROCEDURAL BACKGROUND Samuels reached a plea agreement with the State. The State agreed to dismiss some charges in exchange for Samuels pleading guilty to aggravated intimidation of a witness, aggravated domestic battery, and two counts of violation of a protective order. The events supporting the charges occurred in April 2018—a date important because we apply the law in place when Samuels committed the crimes. See State v. Keel, 302 Kan. 560, 590, 357 P.3d 251 (2015). Samuels pleaded guilty as agreed. Before sentencing, he objected to his criminal history score as calculated in the presentencing report. It reported that Samuels had several Missouri convictions. The report classified some as nonperson crimes; but it classified two first-degree robbery convictions and one kidnapping conviction as person felonies. Because of the three person felonies, Samuels' criminal history classification was A, which subjected him to the most severe presumptive sentence for his primary conviction. In objecting to the classifications and criminal history scoring, Samuels argued the sentencing judge should have classified all his Missouri offenses as nonperson offenses because Kansas had no person felonies comparable to Missouri's first-degree robbery or kidnapping crimes. The sentencing judge rejected his argument and determined each of Samuels' Missouri first-degree robbery and kidnapping convictions was a person felony. 3 On appeal and review, Samuels challenges only the scoring of his Missouri kidnapping conviction under Mo. Rev. Stat. § 565.110 (2004). A Court of Appeals panel rejected Samuels' challenge and affirmed the sentencing judge's determination that Samuels' criminal history score was A. See State v. Samuels, No. 120,853, 2020 WL 2089625 (Kan. App. 2020) (unpublished opinion). Samuels sought this court's review, which we granted. We have jurisdiction under K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions) and K.S.A. 60-2101(b) (providing Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review). ANALYSIS Our analysis of whether the sentencing judge properly classified Samuels' Missouri kidnapping conviction as a person crime begins with the KSGA, which includes sentencing grids that specify presumptive sentences for Samuels' crimes. A "'presumptive sentence' means the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the offender's current crime of conviction and the offender's criminal history." K.S.A. 2020 Supp. 21-6803(q); see K.S.A. 2020 Supp. 21-6804(f) (applying to nondrug crimes); K.S.A. 2020 Supp. 21- 6805(d) (applying to drug crimes; same provision). The criminal history score depends on the defendant's prior convictions, including out-of-state convictions. K.S.A. 2017 Supp. 21-6809; K.S.A. 2017 Supp. 21-6811(e). Samuels' arguments require us to focus on the KSGA's directions for classifying out-of-state crimes for criminal history purposes. In doing so, we look to statutes in effect 4 when Samuels committed the crimes for which the judge sentenced him. See K.S.A. 2017 Supp. 21-6811(e)(3) ("In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to."); Keel, 302 Kan. at 590. The 2017 supplement to the Kansas Statutes Annotated includes those statutes applicable in 2018 when Samuels committed the crimes. In 2017, the KSGA set out a two-step process for classifying out-of-state convictions. First, the KSGA directed the sentencing judge to apply the convicting jurisdiction's classification of the conviction as a felony or misdemeanor crime. K.S.A. 2017 Supp. 21-6811(e)(2). Second, it directed the sentencing judge to classify the defendant's out-of-state conviction as either a person or nonperson offense by comparing the elements of the out-of-state crime to Kansas crimes and considering how Kansas classified comparable crimes. "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 be classified as a nonperson crime." K.S.A. 2017 Supp. 21-6811(e)(3). When Samuels committed the crimes at issue in this appeal, K.S.A. 2017 Supp. 21-6811 did not set out a metric for deciding whether a crime was comparable. That changed after Samuels committed the crimes at issue when the Kansas Legislature amended K.S.A. 21-6811 and changed the test for classifying crimes as person and nonperson crimes. See State v. Baker, 58 Kan. App. 2d 735, 738-39, 475 P.3d 24 (2020) (discussing amendments). Our holdings today thus apply to crimes committed before May 23, 2019, the effective date of the amendments. As of the time of Samuels' crimes, however, the statute gave no test for deciding if an out-of-state crime was comparable to a Kansas crime. Courts thus had to construe the 5 statute to discern the legislative intent as to what made crimes comparable. In Wetrich, this court held that an out-of-state crime was comparable to a Kansas crime if its elements were identical to or narrower than the Kansas crime. If broader, the out-of-state offense was not comparable, and the sentencing judge had to classify it as a non-person felony. See Wetrich, 307 Kan. at 562. "'Elements' are the 'constituent parts' of a crime's legal definition—the things 'the prosecution must prove to sustain a conviction.'" Mathis v. United States, 579 U. S. 500, 136 S. Ct. 2243, 2248, 195 L. Ed. 2d 604 (2016) (quoting Black's Law Dictionary 634 [10th ed. 2014]). "Facts, by contrast, are mere real-world things—extraneous to the crime's legal requirements. They are 'circumstance[s]' or 'event[s]' having 'no legal effect [or] consequence': In particular, they need neither be found by a jury nor admitted by a defendant." 136 S. Ct. at 2248 (quoting Black's Law Dictionary 709). We thus focus on elements by reviewing the statutory language. To make the comparison between the statutes, courts must interpret the Kansas and out-of-state statutes. Statutory interpretation presents a question of law subject to unlimited review. Wetrich, 307 Kan. at 555; see State v. Obregon, 309 Kan. 1267, 1270, 444 P.3d 331 (2019).
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