                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              Nos. 107,836
                                                   107,837

                                           STATE OF KANSAS,
                                               Appellee,

                                                     v.

                                           BENJAMIN SMITH,
                                              Appellant.


                                   SYLLABUS BY THE COURT

        A pre-Kansas Sentencing Guidelines Act (KSGA) conviction and/or juvenile
adjudication must be classified for criminal history purposes as either a person or
nonperson offense by comparing the criminal statute under which the prior offense arose
to the comparable post-KSGA criminal statute. The comparable post-KSGA criminal
statute is the one that was in effect at the time the crime of conviction was committed.


        Review of the judgment of the Court of Appeals in 49 Kan. App. 2d 19, 303 P.3d 716 (2013).
Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed February 12, 2016.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.


        Christina M. Kerls, of Kansas Appellate Defender Office, was on the brief for appellant.


        Jeffery S. Adam, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.


The opinion of the court was delivered by



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       STEGALL, J.: Benjamin Smith appeals the district court's denial of his motions for
modification or correction of sentence. Smith contends the district court erred by
classifying his pre-Kansas Sentencing Guidelines Act (KSGA) convictions for
aggravated burglary and robbery as person felonies. Smith's claim is controlled by our
recent decision in State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015). Following Keel, we
reject Smith's argument and find his pre-KSGA convictions were correctly classified as
person felonies.


       The relevant facts are not in dispute. In case 09 CR 74, Smith pled guilty to
misdemeanor theft and three counts forgery and the district court sentenced him to a
controlling sentence of 24 months' probation, with an underlying prison term of 19
months. Then, in case 10 CR 389, Smith pled guilty to one count possession of cocaine
and the district court sentenced him to 12 months' probation, with an underlying prison
term of 34 months running consecutively to 09 CR 74. Finally, in case 11 CR 170, Smith
pled guilty to eight counts of forgery and four counts of theft by deception.


       Before sentencing in 11 CR 170, Smith filed a motion for correction or
modification of his sentences in 09 CR 74 and 10 CR 389. Smith argued his 1982
convictions for aggravated burglary and robbery had been improperly classified as person
felonies. The district court denied the motions. The district court then sentenced Smith to
27 months in prison, with 12 months' postrelease supervision, and revoked Smith's
probation in the previous cases.


       The Court of Appeals affirmed the district court's denial of Smith's motion. State
v. Smith, 49 Kan. App. 2d 19, 303 P.3d 716 (2013). We granted review of Smith's
sentencing classification claim pursuant to K.S.A. 20-3018(b) and K.S.A. 60-2101(b).
"Whether a prior conviction should be classified as a person or nonperson offense under
K.S.A. 2014 Supp. 21-6810 requires interpretation of the KSGA, which is a question of
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law subject to unlimited review." State v. Luarks, 302 Kan. 972, ___, 360 P.3d 418, 421
(2015).


       Smith's claim is controlled by Keel, which rejected the identical argument Smith
now raises. In Keel, we held "the legislature intended for all prior convictions and
juvenile adjudications—including convictions and adjudications occurring before
implementation of the KSGA—to be considered and scored for purposes of determining
an offender's criminal history score." 302 Kan. at 581. Keel explained that "a pre-KSGA
conviction and/or adjudication must be classified as either a person or nonperson offense
by comparing the criminal statute under which the prior offense arose to the comparable
post-KSGA criminal statute." 302 Kan. at 581. The opinion concluded: "[T]he
comparable post-KSGA criminal statute is the one that was in effect at the time the
current crime of conviction was committed." 302 Kan. at 581.


       Applying Keel, we find Smith's pre-KSGA convictions were properly classified as
person offenses. At the time of Smith's convictions in 09 CR 74 and 10 CR 389, the
Kansas Criminal Code prohibited the same offenses that comprise Smith's two disputed
convictions—aggravated burglary and robbery—and both were classified as person
felonies. See K.S.A. 21-3716 (aggravated burglary is person felony); K.S.A. 21-3426
(robbery is person felony). Accordingly, Smith's two pre-KSGA convictions were
properly classified as person felonies.


       Affirmed.




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