                           NOT DESIGNATED FOR PUBLICATION

                                              No. 120,574

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                    v.

                                    MARK ANTHONY MARTINEZ,
                                          Appellant.

                                   MEMORANDUM OPINION

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


        Sam Schirer, of Kansas Appellate Defender Office, for appellant.


        Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before LEBEN, P.J., GARDNER, J., and MCANANY, S.J.


        LEBEN, J: Convicted of two counts of aggravated indecent solicitation of a child,
Mark Martinez appeals the sentence he received. He argues that the district court
incorrectly considered the effect of two misdemeanor convictions he had received in
Wichita municipal court. That was significant because Martinez' presumptive sentence is
based in part on his past convictions.


        Martinez argues that there's no statutory authority to consider municipal-court
convictions in the way it was done here. But the Kansas Supreme Court approved similar
consideration of municipal convictions in State v. Russ, 309 Kan. 1240, 443 P.3d 1060
(2019), and we find no error here.


       To put Martinez' argument in context, we must set out some of the basic rules of
the Kansas Sentencing Guidelines Act. A defendant's presumptive sentence is based on
two factors: the severity of the current offense and the criminal-history score of the
defendant. See K.S.A. 2018 Supp. 21-6804(a) (containing the sentencing grid for
nondrug crimes); K.S.A. 2018 Supp. 21-6805(a) (containing the sentencing grid for drug
crimes). Severity levels range from levels 1 (the most serious) to 10 (the least serious
felony level). Criminal-history scores range from I (no criminal history or one
misdemeanor) to A (three or more person felonies). See K.S.A. 2018 Supp. 21-6809;
K.S.A. 2018 Supp. 21-6804(a).


       Martinez' appeal is about the calculation of his criminal-history score. To calculate
that score, a court lists all of the defendant's past convictions and then classifies each
conviction in various ways. One is whether it is a felony or a misdemeanor offense;
felonies are weighted more heavily and lead to higher presumptive sentences. Crimes that
cause physical or emotional harm to another person are generally person offenses; they
too are weighted more heavily, while crimes that damage property are nonperson
offenses and are weighted less heavily. See State v. Keel, 302 Kan. 560, 574-75, 357 P.3d
251 (2015).


       Another rule for calculating the criminal-history score is central to this appeal:
every three prior convictions of Class A and Class B person misdemeanors are combined
to count as a single person felony. K.S.A. 2018 Supp. 21-6811(a). Martinez had three
prior misdemeanor convictions for domestic battery—one from California (a somewhat
more serious offense of infliction of corporal injury on a spouse or cohabitant) and two
from the Wichita Municipal Court. The district court aggregated those three person
misdemeanors and counted them as one person felony offense.

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       That made quite a difference in Martinez' presumptive sentence. Although he had
seven prior convictions, including the ones for domestic battery, all of them had been
misdemeanor offenses. Had they all been scored as misdemeanors, Martinez' criminal-
history score would have been H, the second-least-serious category, and his standard
presumptive guideline sentence would have been 36 months. In addition, he would have
been in what's called a border box on the guideline chart. That means that although his
presumptive sentence was prison, not probation, the court would have the option to grant
probation without meeting the criteria for a departure sentence.


       But once those three misdemeanors were converted to a felony for scoring
purposes, Martinez' criminal-history score became a D, the fourth most serious of nine
categories. His presumptive sentence now was prison, and the standard presumptive
sentence was 52 months. The guidelines offered a range, though, from 50 to 55 months,
and the district court sentenced Martinez to 55 months in prison.


       That difference in Martinez' presumptive guideline sentence led to this appeal.
Martinez bases his argument on part of the statute that provides the misdemeanor-
aggregation rule, K.S.A. 2018 Supp. 21-6811(a). He then notes that the rule applies only
to Class A or Class B person misdemeanors, that the Wichita municipal ordinances don't
use a Class A/Class B distinction, and that no statute specifically talks about converting
unclassified in-state municipal misdemeanors to Class A or Class B. Without that
direction, he argues, Martinez' Wichita municipal convictions can't be considered under
the misdemeanor-aggregation rule.


       But Martinez' focus is too narrow. Two Kansas Supreme Court cases, along with
the statutes they interpret, effectively negate his argument.




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       The first case, State v. Vega-Fuentes, 264 Kan. 10, 955 P.2d 1235 (1998), arose
under sentencing statutes somewhat different from the ones that applied when Martinez
committed his current offense in 2018. But Vega-Fuentes established that "the legislature
intended convictions for violations of municipal ordinances to be treated in the same
manner as comparable misdemeanors for purposes of calculating criminal history,
including aggregation." 264 Kan. 10, Syl. ¶ 5. In support, the court relied on K.S.A. 1994
Supp. 21-4710(d)(7), which provided that municipal ordinance violations be scored based
on the comparable state misdemeanor:


       "All person misdemeanors, class A nonperson misdemeanors and class B select
       nonperson misdemeanors, and all municipal ordinance and county resolution violations
       comparable to such misdemeanors, shall be considered and scored." K.S.A. 1994 Supp.
       21-4710(d)(7); Vega-Fuentes, 264 Kan. at 13.


When we compare that statute to the one in effect when Martinez committed his offense,
K.S.A. 2018 Supp. 21-6810(d)(6), we find that they are virtually identical:


       "All person misdemeanors, class A nonperson misdemeanors and class B select
       nonperson misdemeanors, and 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).


So the instruction from Vega-Fuentes that municipal convictions are counted "in the
same manner as comparable misdemeanors . . . , including aggregation," 264 Kan. 10,
Syl. ¶ 5, should still be true.


       Martinez argues, though, that the statute providing for aggregation, K.S.A. 2018
Supp. 21-6811(a), doesn't specifically tell us how to determine whether a municipal
conviction fits to Class A or Class B, the classes covered by the aggregation rule:



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       "Every three prior adult convictions or juvenile adjudications of class A and class B
       person misdemeanors in the offender's criminal history, or any combination thereof, shall
       be rated as one adult conviction or one juvenile adjudication of a person felony for
       criminal history purposes." K.S.A. 2018 Supp. 21-6811(a).


While that's true, it doesn't mean that municipal convictions aren't subject to the
aggregation rule; Vega-Fuentes already told us they are. And K.S.A. 2018 Supp. 21-
6810(d)(6), which we've already mentioned, tells us how that's done—comparability.


       Comparability takes us to the second key Kansas Supreme Court case, Russ. In it,
the court held a Wichita municipal conviction for domestic battery comparable to a state
Class B misdemeanor. 309 Kan. 1243-44. In Russ, after noting the rules we've mentioned
from K.S.A. 2018 Supp. 21-6810(a) and 21-6811(a), the court held that the defendant's
Wichita municipal conviction for domestic battery was comparable to Kansas
misdemeanor battery under K.S.A. 2018 Supp. 21-5413(a). And that's a Class B person
misdemeanor (unless special circumstances make it Class A). K.S.A. 2018 Supp. 21-
5413(g)(1).


       We recognize that there's no discussion in Russ about the requirement that a
misdemeanor conviction be Class A or Class B to be aggregated; apparently the
defendant in Russ didn't make that exact argument. But the Russ court did quote the
aggregation provision in K.S.A. 2018 Supp. 21-6811(a), which requires that a conviction
be a Class A or Class B person misdemeanor to be aggregated. And the Wichita
municipal domestic battery conviction was then found comparable to the state conviction
for domestic battery, a Class B person misdemeanor, and held subject to aggregation.


       Martinez has not argued that a Wichita domestic battery conviction lacks
comparability to the state crime of battery. See Russ, 309 Kan. at 1243-44 (finding
Wichita municipal domestic battery comparable to state battery offense); State v. Perales,


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No. 119,815, 2019 WL 5089857, at *13 (Kan. App. 2019) (unpublished opinion) (same),
petition for rev. filed October 30, 2019. Instead, Martinez' argument is that Kansas law
simply doesn't authorize aggregating municipal convictions because no statute
specifically authorizes determining whether a municipal conviction is Class A or Class B.
We have rejected that argument because Vega-Fuentes recognizes that municipal
convictions count under the aggregation rule, and Russ shows that they can be
comparable to a state offense that carries the Class A or Class B designation. In our case,
as in Russ, the Wichita municipal conviction is comparable to a state Class B person
misdemeanor; the district court properly scored the two Wichita municipal convictions,
aggregating them with an out-of-state person misdemeanor conviction to count as one
person felony in Martinez' criminal-history score.


       We therefore affirm the district court's judgment.




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