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State v. Hobbs7/11/2003
, in violation of K.S.A. 21-3715." K.S.A. 21-3715(a) provides: "Burglary is knowingly and without authority entering into . . . any . . . uilding . . . which is a dwelling with intent to commit . . . theft." The statute further provides: "Burglary as described in subsection (a) is a severity level 7, person felony."
The Journal Entry in Case No. 94JV2481 repeats the mistaken classification:
"The Respondent then admitted his guilt as to COUNT II of Complaint 94JV2481. The Court found this plea was freely and voluntarily given, and that there was a sufficient factual basis or this plea. The Respondent was determined to be a Juvenile Offender as to COUNT II of Complaint 94JV2481 (Felony, K.S.A. 21-3715, Severity Level 7, non-person felony), within the meaning of the Juvenile Code of the State of Kansas, applicable thereto."
Hobbs was placed on probation.
A journal entry of judgment in Johnson County Case No. 96CR1000 shows that Hobbs pled guilty in June 1996 to violation of K.S.A. 21-3715, a severity level 7 person felony. His criminal history classification was non-drug D, and there was no objection to the criminal history. In 1998, he pled guilty to attempted possession of marijuana with intent to sell in Johnson County Case No. 97CR2873. The presentence investigation report that was prepared in the marijuana case listed the burglary in 94JV2481 as a person felony. The journal entry of judgment shows that there was no objection to the criminal history.
Based on its review of this history, the trial court concluded that defendant's objection to the criminal history should be overruled:
"This court finds that the categorization of the residential burglary which was the foundation of the defendant's 1994 juvenile conviction as a non-person felony in both the charging language and the Journal Entry signed by the judge was a clerical error. This becomes obvious when taking into consideration the obvious in-depth plea negotiations which occurred between defendant's counsel and the District Attorney's office in negotiating a downward departure in his sentence in Case No. 94 [sic, should be 97] -CR-2873 in the Johnson County District Court in which the defendant's juvenile burglary conviction was scored as a person felony which, along with the remainder of his criminal history, placed him in the B category on the sentencing grid. That placement on the sentencing grid without any departure would have resulted in the defendant being sentenced in the presumptive sentencing range of 35, 38, or 41 months. The fact is that as a result of plea negotiations between the parties, it was agreed to recommend to the judge a downward durational departure to 26 months which recommendation the judge accepted and so sentenced this defendant.
"There is absolutely nothing in the record before this court surrounding the compilation and approval of the contents of the presentence investigation and criminal history pursuant to sentencing in the 97-CR-2873 case which would suggest to this court that the defendant's counsel, in approving the criminal history contained in the presentence investigation at that time, was anything less than diligent and competent in checking and approving the accuracy of the presentence investigation at that time."
On appeal, Hobbs takes exception to the trial court's determining that the nonperson language in the 94JV2481 complaint and journal entry is due to a clerical error. He argues that no greater offense than the one he was charged and convicted of, i.e., severity level 7 nonperson felony for the burglary in Case No. 94JV2481, can be used in calculating his criminal history.
Hobbs' arguments
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