                                        No. 111,005

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                   GUILLERMO G. RUIZ,
                                       Appellant.


                              SYLLABUS BY THE COURT

1.
       A plea of guilty or no contest may be withdrawn at any time before sentence is
adjudged for good cause shown and within the discretion of the court. An appellate court
will not disturb a district court's decision to deny a defendant's presentence motion to
withdraw plea unless the defendant shows an abuse of discretion.


2.
       In determining whether a defendant has shown good cause to withdraw a plea, a
district court should consider three factors: (1) whether the defendant was represented by
competent counsel; (2) whether the defendant was misled, coerced, mistreated, or
unfairly taken advantage of; and (3) whether the plea was fairly and understandingly
made. However, these factors should not be applied mechanically and to the exclusion of
other factors.


3.
       In Kansas, the offender's criminal history shall be admitted in open court by the
offender or determined by a preponderance of the evidence at the sentencing hearing by
the sentencing judge.


                                             1
4.
        As a general rule, a litigant may not invite error and then complain of the error on
appeal.


5.
        When a defendant stipulates at sentencing to the factual basis supporting his or her
criminal history classification, the defendant may be barred from challenging the factual
stipulations on appeal under the invited error doctrine. However, a defendant who
stipulates to the legal effect of his or her criminal history classification is not barred from
challenging the criminal history classification on appeal.


6.
        Kansas law is clear that a defendant cannot agree to an illegal sentence.


7.
        The Kansas Supreme Court has held that when calculating a defendant's criminal
history that includes out-of-state convictions committed prior to the 1993 enactment of
the Kansas Sentencing Guidelines Act, the out-of-state convictions must be classified as
nonperson offenses.


8.
        The Court of Appeals is duty bound to follow Kansas Supreme Court precedent
absent some indication the Supreme Court is departing from its previous position.


        Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA and WARREN M. WILBERT,
judges. Opinion filed February 20, 2015. Affirmed in part, vacated in part, and remanded with directions.


        Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.




                                                    2
        Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before MALONE, C.J., MCANANY and SCHROEDER, JJ.


        MALONE, C.J.: Guillermo Ruiz pled no contest to attempted aggravated sexual
battery. He now appeals his conviction and sentence contending the district court erred
(1) by denying his presentence motion to withdraw his plea; (2) by classifying his 1991
California convictions involving child sex offenses as person offenses for criminal
history purposes; and (3) by sentencing him based on his criminal history without
requiring the State to prove the criminal history to a jury beyond a reasonable doubt.


        We conclude the district court did not abuse its discretion by denying Ruiz'
presentence motion to withdraw his plea. We also conclude, under the facts herein, that
Ruiz did not invite any error in the calculation of his criminal history score when his
counsel stipulated to the criminal history at the sentencing hearing. Applying our
Supreme Court's holding in State v. Murdock, 299 Kan. 312, Syl. ¶ 5, 323 P.3d 846
(2014), modified by Supreme Court order September 19, 2014, we conclude that Ruiz'
1991 California convictions involving child sex offenses must be classified as nonperson
offenses for criminal history purposes. Thus, we vacate Ruiz' sentence and remand for
resentencing using the correct criminal history score.


                            FACTUAL AND PROCEDURAL BACKGROUND

        On May 2, 2002, the State charged Ruiz with one count of kidnapping, one count
of attempted rape, and one count of indecent solicitation of a child. The underlying
factual allegations that led to the charges are not pertinent to this appeal. From the record
on appeal, it appears that Ruiz absconded in September 2002, after a preliminary hearing
but prior to trial, and was not arrested again until June or July 2011. Ruiz was represented
by several different attorneys throughout the proceedings in district court.
                                                    3
       On January 24, 2013, the district court held a plea hearing. Ruiz was present at the
hearing and was represented by counsel, Carl Maughan. The parties had reached a plea
agreement whereby Ruiz would plead no contest to attempted aggravated sexual battery,
and the remaining charges would be dismissed. Throughout the hearing, Ruiz repeatedly
assured the district court that he understood the rights he was giving up by pleading no
contest and that he understood the plea agreement.


       When the judge asked Ruiz whether he was satisfied with Maughan's services,
Ruiz said yes, but when the judge asked if Ruiz had any complaints about his
representation so far, Ruiz registered a complaint about his prior attorneys. In a rambling
statement, Ruiz claimed that after he was incarcerated, he discovered proof of his
innocence but an investigator hired by a prior attorney did not follow up on the evidence.
When the judge again asked whether Ruiz was satisfied with Maughan, Ruiz replied,
"Yes. Yes, sir."


       The judge asked Ruiz whether it was his decision to enter the plea and whether he
did so freely and voluntarily. Ruiz replied, "Yes, sir." Maughan then stated that he had
spoken with Ruiz the previous day and immediately prior to the hearing to ensure that
Ruiz wanted to enter the plea; Maughan stated he told Ruiz that if he did not wish to enter
a plea, they would proceed to trial. Pursuant to the plea agreement, Ruiz then pled no
contest to attempted aggravated sexual battery. After hearing the State's factual basis for
the charge, the district court found Ruiz guilty and dismissed the remaining charges.


       The district court ordered a presentence investigation (PSI) report which revealed,
among other prior convictions, two 1991 California convictions of felony child
molestation and a separate 1991 California conviction of using a minor for sex acts. Ruiz
filed a written objection to his criminal history, specifically objecting to the classification
of the California crimes as person offenses, claiming that under State v. Williams, 291
Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010), they should be classified as nonperson offenses.

                                               4
       On May 28, 2013, Ruiz, represented by new counsel, filed a motion to withdraw
plea. In the motion, he argued that he had consistently maintained his innocence and that
he had not wanted to enter a plea that could result in his conviction. Ruiz asserted that he
"was guaranteed by his defense counsel his right to address the Court, which [Ruiz]
assumed could result in the Court actually finding him not guilty and refusing to accept
the plea." Ruiz also argued that Maughan had provided ineffective assistance of counsel
by failing to adequately prepare for trial, investigate facts, or prepare a defense.


       In July 2013, the district court held an evidentiary hearing on Ruiz' motion to
withdraw the plea. Ruiz first called Scott Davis, the chaplain at the Sedgwick County
Detention Facility. Davis testified that Ruiz had told him that other people had heard a
third party confess to the crimes with which Ruiz was charged.


       Next, Ruiz called Christopher Eaves, a criminal defense investigator who had
worked on Ruiz' case. Eaves testified that Ruiz had told him that a man named Ted
Padgett knew Ruiz was being blackmailed by the alleged victims of the crime. Ruiz also
told Eaves that two other inmates—Michael Martinez and Carlos Montidoro—had
overheard Padgett telling Ruiz he knew about the blackmail. Eaves testified that he had
located Padgett's address and he was in the process of locating Montidoro when defense
counsel Brad Sylvester—who had represented Ruiz prior to Maughan—told Eaves to put
his investigation on hold. Sylvester told Eaves that the case was going to another
attorney, so he submitted his file to Sylvester and did no further work on the case.


       Ruiz then testified on his own behalf. He stated that he had believed he would be
able to speak at the plea hearing and inform the judge that he was innocent. Ruiz
admitted that he understood the English language, but he stated that on one occasion
when he asked Maughan for an interpreter, the interpreter did not stay through the entire
meeting. Although Ruiz conceded that he told the court that he understood the charges


                                              5
against him and his rights, he claimed he was merely attempting to reach the part of the
hearing when he believed he would be able to tell the judge that he was innocent.


       Regarding Maughan's alleged failure to prepare and investigate, Ruiz testified that
he gave Maughan the names of Montidoro, Martinez, and other witnesses to contact, but
Maughan had failed to follow up. Ruiz stated that he always maintained his innocence
and never told Maughan he wanted a plea deal; rather, Ruiz testified he was forced to
sign a plea agreement because it was the only way he could get in front of a judge. Ruiz
testified that he did not understand that he would be found guilty at the plea hearing;
rather, he believed the judge would "stop the court and investigate [the] case." Ruiz said
he had informed the court at his plea hearing that he was satisfied with Maughan's
representation only because Maughan had told him how to answer.


       The State called Maughan, who testified that there was never an interpreter present
for his one-on-one meetings with Ruiz and that Maughan never had any impression that
Ruiz did not understand him. Maughan acknowledged that an interpreter was present at
one meeting between himself, another attorney in his office, and Ruiz; the interpreter had
to leave halfway through the meeting, but they finished the conversation without an
interpreter. Maughan stated that he and Ruiz discussed whether he actually needed an
interpreter and that Ruiz never brought it up again.


       Maughan further testified that he had several conversations with Ruiz about the
plea negotiations in which he explained the offer to Ruiz and Ruiz instructed him to try
again for a more favorable deal. Maughan also discussed with Ruiz the effects of
accepting a plea offer, including potential sentences and Ruiz' right to a jury trial.
According to Maughan, Ruiz had witnesses he wanted to call at trial, but Maughan
understood that none of them could be located. He spoke on several occasions with Ruiz
about the danger of proceeding to trial if they were not sure of the witnesses. He


                                              6
explained to Ruiz the benefits of what Maughan perceived as a "fairly generous plea
offer," but told Ruiz they would go to trial if he wanted to do so.


       Regarding his investigation of Ruiz' named witnesses, Maughan testified that
before the plea hearing he was simply trying to determine whether the case would be
disposed of by plea or trial; he intended to follow up with the witnesses if the case went
to trial. Maughan believed that Eaves had not been able to talk with Padgett and was
unable to locate the other witnesses. Maughan testified that he went over the plea
agreement and the acknowledgment of rights form with Ruiz, explaining each paragraph,
and left the forms with Ruiz overnight so he could examine them further.


       Maughan denied telling Ruiz how to respond at the plea hearing, other than
correcting Ruiz when he pled guilty rather than no contest. Maughan believed that Ruiz
understood what was happening at the plea hearing and that he entered his plea
voluntarily to take advantage of the plea agreement. Maughan testified that Ruiz did not
express any confusion after the plea hearing or in subsequent meetings. Ultimately,
Maughan testified that it was Ruiz' decision to accept the plea offer and plead no contest.


       After hearing the evidence, the district court entered an extensive ruling from the
bench. The district court found that Ruiz had offered no credible evidence that Maughan's
representation was deficient. The district court also found that no language issues existed
to hinder communication. The district court found that Ruiz knowingly and voluntarily
pled no contest. Finally, the district court found that there were no issues with the way the
plea hearing was conducted that would give rise to good cause to withdraw the plea.
Accordingly, the district court denied Ruiz' motion to withdraw his plea.


       The case proceeded to sentencing on October 22, 2013. At the beginning of the
hearing, there was an extensive discussion between counsel and the judge about Ruiz'
criminal history, specifically concerning how the three California convictions should be

                                              7
scored. Ruiz' counsel acknowledged that he had received certified copies of the
California convictions. Ruiz' counsel stated, "I agree they are valid convictions. The issue
I believe before the Court is how those convictions are used." Ruiz' counsel then stated,
"I don't have any objection to the two person felonies from California being used against
him, but I have an argument as to how they are used to enhance a sentence from that of a
criminal history B to a persistent sex offender." Ruiz did not personally admit his
criminal history in open court, nor was he ever requested to do so by the judge.


       Ultimately, the district court used one of the California convictions of felony child
molestation in order to sentence Ruiz as a persistent sex offender. The district court
scored the other two California convictions as person felonies to place Ruiz into criminal
history category B. The district court sentenced Ruiz to 62 months' imprisonment with 12
months' postrelease supervision. Ruiz timely appealed the district court's judgment.


                               MOTION TO WITHDRAW PLEA

       Ruiz first contends that the district court erred by denying his presentence motion
to withdraw his plea. He argues that he showed good cause to withdraw his plea by
demonstrating that (1) his trial counsel was ineffective and (2) he did not knowingly and
voluntarily enter his plea. The State argues that Ruiz did not show the requisite good
cause for withdrawing a plea and the district court did not err in denying the motion.


       K.S.A. 2014 Supp. 22-3210(d)(1) provides that a plea of guilty or no contest, "for
good cause shown and within the discretion of the court, may be withdrawn at any time
before sentence is adjudged." An appellate court will not disturb a district court's decision
to deny a defendant's presentence motion to withdraw plea unless the district court
abused its discretion in denying the motion. State v. Macias-Medina, 293 Kan. 833, 836,
268 P.3d 1201 (2012). A district court abuses its discretion by taking judicial action that
is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an

                                              8
error of fact. State v. Laurel, 299 Kan. 668, 676, 325 P.3d 1154 (2014). The party
asserting that the district court abused its discretion bears the burden of showing such
abuse of discretion. State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).


       "In determining whether a defendant has shown good cause to withdraw a plea, a district
       court should consider three factors, sometimes called Edgar factors, after State v. Edgar,
       281 Kan. 30, 36, 127 P.3d 986 (2006): (1) whether the defendant was represented by
       competent counsel; (2) whether the defendant was misled, coerced, mistreated, or
       unfairly taken advantage of; and (3) whether the plea was fairly and understandingly
       made. [Citation omitted.] These factors should not, however, be applied mechanically
       and to the exclusion of other factors. [Citation omitted.]" State v. Fritz, 299 Kan. 153,
       154, 321 P.3d 763 (2014).


       Ruiz first contends that he was not represented by competent counsel at his plea
hearing. Specifically, he alleges that Maughan failed to thoroughly investigate the case
prior to Ruiz entering the plea in that Maughan did not contact witnesses identified by
Ruiz. Ruiz argues that the failure to speak with the witnesses meant that Maughan did not
have all the information necessary to fully appreciate the strength of Ruiz' case, which
was crucial to competently advise Ruiz on whether he should enter into a plea agreement.


       In arguing that he established good cause to withdraw his plea because he was not
represented by competent counsel, Ruiz is not required to "demonstrate ineffective
assistance arising to the level of a violation of the Sixth Amendment." See State v.
Aguilar, 290 Kan. 506, 512-13, 231 P.3d 563 (2010). In fact, our Supreme Court has
stated that "[m]erely lackluster advocacy . . . may be plenty to support the first Edgar
factor and thus statutory good cause for presentence withdrawal of a plea." 290 Kan. at
513; see State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). As stated above, Ruiz
argues that Maughan's failure to interview defense witnesses rendered him incompetent
to advise Ruiz about the benefits of entering a no-contest plea.



                                                    9
       At the hearing on the motion to withdraw the plea, Maughan testified that he knew
Ruiz had some witnesses he wished to be called at trial, but Maughan's understanding
was that none of those witnesses could be located. Maughan believed that Eaves had not
been able to talk with Padgett and was unable to locate the other witnesses. Moreover,
Maughan testified that he spoke with Ruiz about the witnesses' testimony and Maughan
believed that even if the witnesses testified at trial, there was a significant risk that Ruiz
would be found guilty and would face a long prison sentence.


       Maughan testified that prior to the plea hearing he was simply trying to determine
whether Ruiz was going to accept the plea offer or if the case was going to trial. He
reiterated, however, that he had promised Ruiz that if they went to trial Maughan would
investigate and be as prepared as possible for trial. Maughan explicitly testified that he
felt he had sufficient information, in part gleaned from the attorneys who had previously
represented Ruiz and investigated the case, to "engage in discussions regarding plea
negotiations and the merits or dangers of proceeding to trial."


       In its ruling from the bench, the district court found that preparation of a case took
many different forms and that "[i]t is fairly common that the majority of trial prep work
doesn't occur until a decision has been made to reject a plea offer or the decision is
essentially made to go to trial." The judge also noted that Ruiz "expressed satisfaction" at
the plea hearing with Maughan's representation and service. The judge specifically found
that "no credible evidence was presented of any ineffective assistance of counsel by Mr.
Maughan in his representation of Mr. Ruiz in this hearing" and "[t]he evidence indicates
Mr. Maughan acted as competent counsel."


       Ruiz' argument that Maughan provided incompetent assistance by abandoning his
investigation of Ruiz' witnesses is unpersuasive. It is important to note that Maughan was
one of several attorneys appointed to represent Ruiz in district court. By the time
Maughan was appointed to represent Ruiz, there had been some investigation into the

                                              10
substance of the charges. Maughan determined that he would explore a plea offer but if
negotiations failed he would pick up with the investigation. As Maughan testified, he
negotiated a "fairly generous plea offer." Ruiz pled no contest to one count of attempted
aggravated sexual battery in exchange for dismissal of one count of kidnapping, one
count of attempted rape, and one count of indecent solicitation of a child.


       Maughan's understanding that none of the witnesses could be located was not
completely accurate because Eaves testified that he had located Padgett's address.
Nevertheless, Maughan spoke with Ruiz about what the witnesses' testimony would be
and, even with that knowledge, felt a plea was in Ruiz' best interest. The district court
found that Ruiz presented no credible evidence that Maughan's representation was
deficient. Considering all the evidence, Ruiz has failed to establish that the district court
abused its discretion in making this finding.


       Next, Ruiz argues that he did not knowingly and voluntarily enter his plea. Ruiz
asserts that he believed he could argue his innocence at the plea hearing and that the
district court could find him not guilty despite his entering a plea of no contest. He
concedes that Maughan and the district court repeatedly attempted to explain the
consequences of entering a plea, but he maintains that he "still did not understand that the
district court would not be evaluating evidence and possibly finding him not guilty at his
plea hearing." He notes that he requested an interpreter on one occasion, implying that a
language barrier impeded his understanding of the consequences of entering a plea.


       At the hearing on the motion to withdraw plea, the district court explicitly found
that "no English language issues exist based upon the evidence presented at this hearing,
and, in addition, from the Court's observations. I would note that a review of the plea
hearing transcript indicates no issues or difficulties due to the English language, either
speaking or understanding or reading." The district court found that Ruiz had been


                                              11
advised of all his rights. Ultimately, the district court found that Ruiz had not shown that
his "plea was anything other than freely, voluntarily, knowingly, and intelligently given."


       The district court did not abuse its discretion by finding that the plea was
knowingly and voluntarily entered. Regarding the language issue, although Ruiz testified
that he had trouble understanding what was happening at the plea hearing, Maughan
testified that he did not think Ruiz had trouble understanding English. Moreover, the plea
hearing transcript reflects that when the hearing began, the judge asked Ruiz whether he
could read and understand English, and Ruiz answered, "Yes."


       Regarding Ruiz' asserted belief that entering a plea would still allow him to be
found not guilty by the court, Maughan testified that he had explained to Ruiz that if Ruiz
accepted the plea offer, he would not be able to contest the State's evidence. Moreover, at
the plea hearing, Ruiz assured the district judge that he understood the rights he was
giving up by pleading no contest. The following colloquy occurred at the plea hearing:

               "THE COURT: . . . Mr. Ruiz, do you understand by entering a plea of no contest
       today, you are essentially going to be admitting to the facts alleged in the Amended
       Complaint as set forth by the State when they provide the factual basis? Do you
       understand that?
               "THE DEFENDANT: Yes, sir.
               ....
               "THE COURT: And that by this plea of no contest, you understand that you are
       not saying you committed this crime, but you are stating that you are not going to be
       contesting the charges against you?
               "THE DEFENDANT: Yes, sir.
               "THE COURT: Or the amended charge against you; understand that?
               "THE DEFENDANT: Yes, sir.
               "THE COURT: And you understand that if you plead no contest and the
       prosecutor is basically going to tell us or tell me what the evidence would be, and I will
       consider the State's allegations under this Amended Complaint as true, and without a


                                                   12
       trial, and then I will go ahead and find you guilty of the charge—of the amended charge,
       and you will be found guilty just like you had pled guilty or if a jury had found you
       guilty. Do you understand that?
               "THE DEFENDANT: Yes, sir."


       In sum, Ruiz failed to establish that his trial counsel was ineffective. He also failed
to establish that he did not knowingly and voluntarily enter his plea. The party asserting
that the district court abused its discretion bears of burden of showing such abuse of
discretion. Rojas-Marceleno, 295 Kan. at 531. Considering the factors set forth in Edgar,
281 Kan. at 36, Ruiz has failed to show good cause to withdraw his plea. Thus, we
conclude the district court did not abuse its discretion in denying the motion.


                               CRIMINAL HISTORY CALCULATION

       Next, Ruiz argues that in light of our Supreme Court's decision in Murdock, the
district court erred by classifying his 1991 California convictions involving child sex
offenses as person offenses. In Murdock, our Supreme Court held that when calculating a
defendant's criminal history that includes out-of-state convictions committed prior to the
enactment of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., the
out-of-state convictions must be classified as nonperson offenses. 299 Kan. 312, Syl. ¶ 5.


       The State does not challenge Murdock's holding. However, the State replies that
Ruiz invited any error that may have occurred by stipulating to his criminal history at the
sentencing hearing, so this court should not review the merits of Ruiz' claim.


       Whether a prior conviction is properly classified as a person or nonperson offense
involves the interpretation of the KSGA. Interpretation of a statute is a question of law
over which appellate courts have unlimited review. Murdock, 299 Kan. at 314; accord
State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).



                                                   13
       K.S.A. 21-4715(a), recodified in K.S.A. 2014 Supp. 21-6814(a), provides that the
defendant's criminal history "shall be admitted in open court by the offender or
determined by a preponderance of the evidence at the sentencing hearing by the
sentencing judge." Thus, the district court should provide the defendant an opportunity to
personally stipulate to his or her criminal history in open court at the sentencing hearing.
As a general rule, a litigant may not invite error and then complain of the error on appeal.
See State v. Jones, 295 Kan. 804, 811-13, 286 P.3d 562 (2012). Whether to apply the
doctrine of invited error presents a question of law. Generally, an appellate court
exercises unlimited review over questions of law. State v. Reed, 50 Kan. App. 2d 1133,
Syl. ¶ 1, 336 P.3d 912 (2014).


       We will briefly review the facts pertinent to the State's argument that Ruiz invited
any error concerning the calculation of his criminal history. Ruiz' PSI report revealed,
among other prior convictions, two 1991 California convictions of felony child
molestation and a separate 1991 California conviction of using a minor for sex acts. Prior
to sentencing, Ruiz' counsel filed a written objection to his criminal history, specifically
objecting to the classification of the California crimes as person offenses.


       At the sentencing hearing, Ruiz was represented by new counsel. At the beginning
of the hearing, there was an extensive discussion between counsel and the judge about
Ruiz' criminal history, specifically concerning how the California convictions should be
scored. Ruiz' counsel acknowledged that he had received certified copies of the
California convictions. Ruiz' counsel stated: "I agree they are valid convictions. The
issue I believe before the Court is how those convictions are used." Ruiz' counsel then
stated: "I don't have any objection to the two person felonies from California being used
against him, but I have an argument as to how they are used to enhance a sentence from
that of a criminal history B to a persistent sex offender."




                                             14
       Ruiz did not personally admit his criminal history in open court, nor was he ever
requested to do so by the judge. Ultimately, the district court used one California
conviction of felony child molestation in order to sentence Ruiz as a persistent sex
offender. The district court scored the other two California convictions as person offenses
to place Ruiz into criminal history category B. The district court sentenced Ruiz to 62
months' imprisonment with 12 months' postrelease supervision.


       The State contends that Ruiz invited any error concerning the calculation of his
criminal history based on his counsel's explicit statement that "I don't have any objection
to the two person felonies from California being used against him . . . ." According to the
State, the only objection Ruiz made at sentencing was that the district court could not use
any of the California convictions to sentence him as a persistent sex offender. The State
argues that Ruiz stipulated that two of the California convictions could be scored as
person felonies placing him into criminal history category B. Based on this stipulation,
the State argues that Ruiz invited the error to which he now complains about on appeal.


       Whether in the context of the doctrine of invited error or the doctrine of waiver,
our court previously has addressed the issue of whether the defendant's stipulation to
criminal history at sentencing bars the defendant from challenging a criminal history
error on appeal. However, our court's decisions on this issue have not been consistent.
We will review many of our court's published and unpublished decisions addressing the
issue of whether a defendant's stipulation to criminal history classification at sentencing
bars the defendant from challenging the criminal history on appeal.


Court of Appeals decisions addressing stipulations to criminal history


       In State v. McBride, 23 Kan. App. 2d 302, 930 P.2d 618 (1996), the defendant
stipulated to the criminal history worksheet at sentencing. He later filed a motion to
correct clerical and arithmetic errors, claiming a prior juvenile conviction was a

                                             15
nonresidential burglary. The district court denied the motion. On appeal, this court
rejected the defendant's claim that his motion to correct clerical and arithmetic errors
effectively was a motion to correct an illegal sentence, which can be raised at any time.
23 Kan. App. 2d at 304; see K.S.A. 22-3504(1). This court further opined that the
defendant invited the error by stipulating to the criminal history score. Specifically, this
court stated: "[The defendant] stipulated to his criminal history during sentencing; he
cannot now complain that it was incorrect. Such argument has been waived." 23 Kan.
App. 2d at 304.


       Ten years later, however, State v. Donaldson, 35 Kan. App. 2d 540, 541, 545-46,
133 P.3d 154 (2006), addressed an appeal from the denial of a motion to correct illegal
sentence in which the defendant argued that the district court had erred in classifying
prior Oklahoma convictions as person misdemeanors. The State argued the defendant
could not raise the challenge because he had stipulated to his criminal history at
sentencing. The Donaldson court drew a distinction between a stipulation to the factual
basis for the defendant's criminal history classification and a stipulation to its legal effect.
35 Kan. App. 2d at 543-44. In rejecting the State's argument that the defendant had
invited any error, the Donaldson court stated:


               "Nevertheless, the invited error rationale is not applicable when the erroneous
       information at the heart of a stipulation is within the knowledge of the court, the
       prosecutor, and defense counsel, but not the defendant. As the defendant notes in this
       appeal, the stipulation at issue is not to the factual existence of his prior convictions but
       to the classification of those prior convictions.
               "Essentially, the error raised by the defendant in his motion to correct an illegal
       sentence and in this appeal involves the application of law. As such, no party can
       properly stipulate to an incorrect application of the law. [Citation omitted.] Therefore, the
       defendant's failure to object to his criminal history score, as required by K.S.A. 2005
       Supp. 21-4715(c), merely prevents him from challenging the factual basis for the criminal
       history classification applied in this case." 35 Kan. App. 2d at 543-44.


                                                     16
       Since Donaldson was decided, this court has often acknowledged the distinction
between a stipulation to the factual basis for the defendant's criminal history
classification and a stipulation to its legal effect. See, e.g., State v. Omar-Cruz, No.
110,698, 2014 WL 6909677, at *4 (Kan. App. 2014) (unpublished opinion) ("Omar-Cruz
is not disputing the existence of his prior convictions, but rather their legal effect. As
such, this falls into an exception of the invited error doctrine as no party can stipulate to
an incorrect application of the law. [Citation omitted.]"); State v. Lopez, No. 110,286,
2014 WL 3843293, at *2-3 (Kan. App. 2014) (unpublished opinion) (finding invited
error, even though defendant did not object to criminal history score below, did not bar
challenge to "incorrect application of the law" in calculating criminal history when
appellant did not attempt "to challenge the factual basis"), petition for rev. filed
September 2, 2014; State v. Barnett, No. 109,597, 2014 WL 113468, at *3-5 (Kan. App.
2014) (unpublished opinion) (finding invited error did not bar defendant from
challenging the district court's classification of a prior juvenile adjudication as a felony);
State v. Luarks, No. 106,643, 2012 WL 6634395, at *5-9 (Kan. App. 2012) (unpublished
opinion) (citing Donaldson and allowing challenge to classification as person crimes of
pre-Guidelines crimes), rev. granted October 31, 2014; State v. Pittman, No. 104,214,
2012 WL 222950, at *4-6 (Kan. App. 2012) (unpublished opinion) (finding invited error
did not bar challenge to aggregation of prior misdemeanors into a person felony);
Hubbard v. State, No. 96,752, 2007 WL 4571089, at *3 (Kan. App. 2007) (unpublished
opinion) (citing Donaldson in finding invited error doctrine is inapplicable to bar criminal
history challenge on appeal).


       However, this court at times has questioned the soundness of Donaldson. In State
v. Madkins, No. 104,350, 2011 WL 4031531 (Kan. App. 2011) (unpublished opinion),
rev. denied 294 Kan. 946 (2012), the defendant filed a presentence objection to the
person classification of certain 1991 and 1992 California convictions but withdrew that
objection at sentencing after being warned by the district court that withdrawal of the
objection could affect his sentence. On appeal, the defendant, relying on Donaldson,

                                              17
reasserted his criminal history challenge, but the State responded that the defendant was
barred from raising the issue by the invited error doctrine. This court sided with the State
and stated:


               "We question Donaldson's construction of the invited error doctrine, if not its
       application in that case. [Citation omitted.] While a defendant may not bind a court by a
       stipulation to an incorrect application of the law, a defendant may bind himself or herself.
       [State v. Bello, 289 Kan. 191, 194, 211 P.3d 139 (2009)], where the issue was the
       applicability of the rape shield statute, is a case in point. Another example is the line of
       cases refusing to review a jury instruction where the complaining party had sought the
       instruction below. [Citation omitted.]
               "The invited error doctrine applies to errors of law because it is based on
       estoppel, not on the personal knowledge of the defendant. [Citation omitted.] The invited
       error doctrine therefore applies to criminal history scores, the legal aspect of such scores
       notwithstanding: 'A criminal defendant who stipulates to an incorrect criminal history
       score cannot later complain on appeal of an illegal sentence based on that score.' State v.
       Goeller, 276 Kan. 578, Syl. ¶ 6, 77 P.3d 1272 (2003); [citation omitted]." 2011 WL
       4031531, at *3.


       The Madkins court determined that the criminal history issue was not properly
before the court because of invited error. 2011 WL 4031531, at *3. Nevertheless, the
court considered the issue on its merits and rejected the defendant's challenge to the
person classification of his 1991 and 1992 California convictions. 2011 WL 4031531, at
*3-4; see also State v. Zoglman, No. 110,678, 2014 WL 7152326, at *6-8 (Kan. App.
2014) (unpublished opinion) (finding challenge to person classification of pre-Guidelines
crimes was barred by invited error), petition for rev. filed January 12, 2015.


       Finally, in State v. Hankins, 49 Kan. App. 2d 971, 975-78, 319 P.3d 571 (2014),
petition for rev. filed March 19, 2014, this court stated that depending on the facts of the
case, the doctrine of invited error can bar a defendant who forgoes his or her statutory
opportunity to challenge his or her criminal history from subsequently complaining about

                                                    18
a criminal history error on appeal. However, the defendant in Hankins attempted to
challenge the factual existence of a prior out-of-state crime in his criminal history, not the
legal question of how the crime was classified. 49 Kan. App. 2d at 975-78. As the
Donaldson court acknowledged, if a defendant stipulates to the factual basis for the
criminal history classification, he or she is barred from challenging the error on appeal.
See Donaldson, 35 Kan. App. 2d at 543-44; see also State v. Hunter, No. 109,078, 2014
WL 274462, at *7-9 (Kan. App. 2014) (unpublished opinion) (defendant stipulated to
factual basis of burglary as being residential; thus, defendant was barred from
challenging person felony classification on appeal), petition for rev. filed February 18,
2014.


Supreme Court decisions addressing stipulations at sentencing


        We also will review some Kansas Supreme Court decisions addressing the broader
subject of whether a party's stipulation at sentencing bars the party from challenging the
sentence on appeal. In State v. Vandervort, 276 Kan. 164, 173, 72 P.3d 925 (2003), the
defendant was convicted of numerous sex crimes, and he appealed his convictions and his
sentences. The Court of Appeals, in an unpublished opinion, refused to consider the
defendant's challenge to the classification of a prior Virginia conviction in the defendant's
criminal history because the defendant had stipulated to his criminal history at
sentencing. See 276 Kan. at 173. The record showed that the defendant had received an
amended copy of the criminal history worksheet at the sentencing hearing and did not
have time to file a written objection prior to the hearing. The record also reflected that
defense counsel stipulated to the criminal history at sentencing, and the trial court did not
personally address the defendant regarding his criminal history.


        Our Supreme Court recognized the "general rule" that a defendant who invites
error by stipulating to his or her criminal history cannot request a correction of sentence
under K.S.A. 22-3504 after pronouncement of the sentence. 276 Kan. at 175-76.
                                             19
Nevertheless, our Supreme Court held that the Court of Appeals had erroneously refused
to consider the defendant's challenge to his criminal history classification on appeal. 276
Kan. at 177. The court recognized that, pursuant to K.S.A. 21-4721(e), appellate review
of criminal history errors may be granted under limited circumstances. The limited
circumstances cited by the court were: (1) where the defendant did not personally give
an oral stipulation in open court, as the authority to admit to prior criminal history
belongs to the defendant; and (2) where the defendant and/or his or her counsel had no
opportunity prior to sentencing to review the criminal history worksheet. 276 Kan. at 177.


       In State v. Goeller, 276 Kan. 578, 77 P.3d 1272 (2003), the defendant claimed on
appeal that the district court erred by including a felony conviction in his criminal history
that either was or could have been used to increase the severity level of his possession of
marijuana sentence. The court noted that generally, under K.S.A. 21-4721(e), an
appellate court has jurisdiction to consider whether the district court erred in determining
the appropriate classification of the defendant's prior convictions. 276 Kan. at 585.
However, the court cited Vandervort for the general rule that a defendant who invites
error by stipulating to his or her criminal history cannot request a correction of sentence
under K.S.A. 22-3504 after pronouncement of the sentence. Goeller, 276 Kan. at 585.
Without any further analysis, the court refused to reach the merits of the defendant's
argument. 276 Kan. at 585.


       State v. McCarley, 287 Kan. 167, 171, 195 P.3d 230 (2007), involved a stipulation
by the State to the severity level of the defendant's crime. The defendant was convicted of
a severity level 5 aggravated battery, but the PSI report incorrectly listed the conviction
as a severity level 8 crime. At the sentencing hearing, both counsel agreed that the report
was correct, and the district court mistakenly sentenced the defendant as though he had
been convicted of a severity level 8 aggravated battery. After the time for appeal had
expired, the State filed a motion to correct an illegal sentence, and the district court
denied the motion. The Court of Appeals affirmed the district court relying in part on its

                                              20
analysis that even if the sentence was illegal, the State had agreed to the severity level
and the doctrine of invited error precluded any challenge. See 287 Kan. at 171.


       Our Supreme Court determined that when a sentence is imposed for a crime for
which the defendant was not convicted, the sentence is illegal and void. 287 Kan. at 174-
75. The court held that under the specific circumstances of the case, the sentence must be
set aside and the defendant must be resentenced for the crime of actual conviction. 287
Kan. at 175. Our Supreme Court determined that the doctrine of invited error was
inapplicable because the alleged invited error leading to the illegal sentence concerned a
matter of the court's jurisdiction. 287 Kan. at 176.


       In State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010), the defendant
claimed he received an illegal sentence under K.S.A. 22-3504 because the district court
improperly classified him as a persistent sex offender. The State claimed the defendant
stipulated to his criminal history score at sentencing; thus, he could not complain about
the score on appeal. Our Supreme Court recognized the general rule that a litigant may
not invite and lead a trial court into error and then complain of the trial court's action on
appeal. 290 Kan. at 533. But the court determined that "this rule does not preclude [the
defendant's] motion to correct an illegal sentence." 290 Kan. at 533. The court considered
the merits of the defendant's claim and determined that the district court erred in
classifying the defendant as a persistent sex offender. 290 Kan. at 537-39.


       Finally, in State v. Weber, 297 Kan. 805, 813-14, 304 P.3d 1262 (2013), our
Supreme Court reinforced the idea that there is a distinction between stipulating to a prior
crime's existence and stipulating to an incorrect legal consequence of that crime. The
Weber court addressed, among other things, whether the district court erred in enhancing
the defendant's sentence based upon the finding that a prior out-of-state crime constituted
a sexually violent crime that sufficed, in part, to justify designating the defendant as an
aggravated habitual sex offender. The State contended that the defendant's challenge was

                                              21
barred because the defendant's trial counsel stipulated that he should be sentenced as an
aggravated habitual sex offender, but our Supreme Court disagreed. 297 Kan. at 813.


       "[W]e view the State's reliance on trial counsel's stipulation to be misguided. Initially,
       counsel had objected to the inclusion of the two Michigan convictions in Weber's
       criminal history score. After the State provided the defense with certified copies of the
       Michigan journal entries, defense counsel advised the sentencing judge that the defense
       was withdrawing its objection to criminal history. Accordingly, we agree with the State
       that Weber should be bound by his counsel's stipulation of fact in the district court with
       respect to his criminal history, i.e., the factual stipulation that Weber was convicted in
       Michigan of the crime of assault with intent to commit sexual contact in the second
       degree. But that factual stipulation does not answer the question before us, which is:
       what is the legal effect of that prior conviction on the imposition of an enhanced
       sentence. . . .
                "Inexplicably, defense trial counsel also conceded that the life without parole
       sentence . . . was mandated for Weber, which would suggest that defense counsel was
       stipulating to the legal effect of the admitted fact of the Michigan assault conviction. But
       we do not permit parties to stipulate '"as to the legal conclusions from admitted facts."'
       [Citation omitted.] The legal question of whether Weber's admitted criminal history was
       sufficient . . . to define him as an aggravated habitual sex offender subject to enhanced
       sentencing, '"must rest upon the court, uninfluenced by stipulations of the parties."'
       [Citations omitted.] Therefore, despite the concession of Weber's counsel, 'we
       nevertheless must address the accuracy of the purported legal basis of [Weber's]
       concession.' [Citations omitted.]
                "Perhaps more to the point here, 'Kansas law is clear that a defendant can't agree
       to an illegal sentence.' [Citations omitted.]" 297 Kan. at 814-15.


       In sum, earlier Kansas Supreme Court cases recognized the general rule, subject to
certain exceptions, that a defendant who invites error by stipulating to his or her criminal
history cannot challenge the criminal history on appeal. These earlier cases drew no
distinction between a stipulation to the factual basis for the defendant's criminal history
classification and a stipulation to its legal effect. But in Weber, the court reinforced the


                                                    22
idea that there is a distinction between stipulating to a prior crime's factual existence and
stipulating to an incorrect legal consequence of that crime. 297 Kan. at 813-15. The
Weber court made it clear that a defendant cannot agree to an illegal sentence. 297 Kan.
at 815.


          Returning to our facts, Ruiz did not personally admit his criminal history in open
court, nor was he requested to do so by the judge. The only stipulation at the sentencing
hearing was made by Ruiz' counsel. As the Vandervort court noted, "'[i]t is not defense
counsel's place to admit to his or her client's prior offenses.' [Citation omitted.]" 276 Kan.
at 175. See K.S.A. 2014 Supp. 21-6814(a). Based on this fact alone, Ruiz should not be
barred from challenging his criminal history on appeal under the invited error doctrine.


          But even if Ruiz had personally stipulated to his criminal history at sentencing, he
would not be barred from claiming an error on appeal under the circumstances of this
case. Ruiz is not challenging the factual existence of his California convictions. Rather,
he is challenging the legal effect of scoring his out-of-state convictions as person offenses
for criminal history purposes. By challenging the classification of his prior out-of-state
crimes, Ruiz challenges the accuracy of his criminal history score, thereby alleging an
illegal sentence. See State v. Neal, 292 Kan. 625, 630-31, 258 P.3d 365 (2011) (stating
that where a criminal history score is incorrect, the resulting sentence is an illegal
sentence).


          Although this court has been inconsistent in its application of the invited error
doctrine under the circumstances presented in Ruiz' case, under the Donaldson/Weber
rationale, we find that because Ruiz challenges only the legal effect of the classification
of his prior out-of-state crimes as person offenses, the invited error doctrine does not
apply to bar his appeal. In addition, under the rationale in Weber, Ruiz alleges an illegal
sentence, and the invited error doctrine does not bar such a challenge on appeal. Thus, we


                                                23
reject the State's claim that Ruiz invited any error that may have occurred by stipulating
to his criminal history, and we will address the merits of Ruiz' argument on appeal.


       Ruiz argues that under Murdock the district court erred by classifying his 1991
California convictions involving child sex offenses as person offenses for criminal
history purposes. Kansas did not begin categorizing crimes as person or nonperson
offenses until 1993 when the KSGA was adopted. See K.S.A. 21-4701 et seq.; L. 1992,
ch. 239, sec. 1 (KSGA effective July 1, 1993). K.S.A. 21-4711(e) governs the
classification of out-of-state convictions for criminal history purposes. This statute
provides that Kansas shall classify out-of-state crimes as person or nonperson by
referring to comparable Kansas offenses. The comparable Kansas offenses must be
determined as of the date the defendant committed the out-of-state crimes. See State v.
Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010).


       In State v. Murdock, 299 Kan. 312, Syl. ¶ 5, 323 P.3d 846 (2014), modified by
Supreme Court order September 19, 2014, a divided Kansas Supreme Court held that
when calculating a defendant's criminal history that includes out-of-state convictions
committed prior to the 1993 enactment of the KSGA, the out-of-state convictions must be
classified as nonperson offenses. Based on the holding in Murdock, out-of-state pre-
KSGA convictions for crimes such as murder, rape, and aggravated indecent liberties
with a child must be scored as nonperson offenses for criminal history purposes—a result
that clearly was never intended by the legislature when it enacted the sentencing
guidelines. The Murdock majority absolved itself of any blame for this absurd result by
stating that the solution to the problem sits with the legislature. 299 Kan. at 319.


       The Court of Appeals is duty bound to follow Kansas Supreme Court precedent
absent some indication the Supreme Court is departing from its previous position. State v.
Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946
(2012). Applying our Supreme Court's holding in Murdock, which we are duty bound to

                                             24
do, we conclude that Ruiz' 1991 California convictions involving child sex offenses must
be classified as nonperson felonies for criminal history purposes. Thus, we vacate Ruiz'
sentence and remand for resentencing using the correct criminal history score. We do not
reach the final issue that the district court erred by sentencing Ruiz based on his criminal
history without requiring the State to prove it to a jury beyond a reasonable doubt.


       Affirmed in part, vacated in part, and remanded with directions.




                                             25
