                           NOT DESIGNATED FOR PUBLICATION

                                             No. 120,573

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                   v.

                                     JOHN JOSEPH MUFFOLETTO,
                                             Appellant.

                                    MEMORANDUM OPINION

        Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed May 1, 2020.
Sentence vacated and remanded with directions.


        Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.


        Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before HILL, P.J., GREEN and WARNER, JJ.


        PER CURIAM: Under Kansas law, out-of-state convictions are categorized for
criminal-history purposes as person or nonperson offenses. This determination is made by
contrasting the crime of conviction with Kansas offenses to determine whether those
offenses are "comparable." See K.S.A. 2018 Supp. 21-6811(e)(3). Based on this
principle, John Muffoletto appeals the district court's ruling classifying two Texas
convictions for abandoning or endangering a child as person felonies. Because the Texas
statute giving rise to his convictions is broader than the Kansas offense the district court
relied upon, we agree that the court erred in finding these offenses comparable. We




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therefore reverse the district court's ruling, vacate Muffoletto's sentence, and remand for
resentencing.


       Muffoletto pleaded guilty to possession of methamphetamine. The presentence-
investigation report identified two Texas convictions for abandoning a child, stemming
from an incident in 1996. The report classified these convictions as person felonies. Over
Muffoletto's objection, the district court accepted this classification at sentencing,
concluding the Texas offense comparable to Kansas' crime of aggravated endangering a
child. The court then sentenced him, based on a criminal-history score of A, to 37
months' imprisonment followed by 12 months' postrelease supervision. Muffoletto
appeals.


       Courts calculate a defendant's criminal-history score by examining where his or
her prior convictions fall along two axes: whether the crime is a misdemeanor or a felony,
and whether it is a person or nonperson crime. Out-of-state felony convictions are
classified as felonies in Kansas. K.S.A. 2018 Supp. 21-6811(e)(2)(A). But the question
whether a conviction was for a person or nonperson offense involves a more nuanced
analysis. When Muffoletto pleaded guilty to and was sentenced for his current offense,
courts decided the person/nonperson classification by determining whether there were
"comparable offenses under the Kansas criminal code in effect on the date the current
crime of conviction was committed." K.S.A. 2018 Supp. 21-6811(e)(3).


       To be a comparable offense, "the elements of the out-of-state crime must be
identical to, or narrower than, the elements of the Kansas crime to which it is being
referenced." State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018). If no
comparable Kansas offense exists, the crime must be classified as a nonperson offense.
K.S.A. 2018 Supp. 21-6811(e)(3). The determination as to whether an out-of-state crime
is comparable to a Kansas offense—which requires a comparison of the statutory



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elements of each crime—is a question of law over which appellate courts have unlimited
review. See State v. Keel, 302 Kan. 560, Syl. ¶ 4, 357 P.3d 251 (2015).


       In 1996 and 1998, a Texas court convicted Muffoletto of abandoning or
endangering a child. During that time, a person committed this Texas offense "if, having
custody, care, or control of a child younger than 15 years, he intentionally abandons the
child in any place under circumstances that expose the child to an unreasonable risk of
harm." Tex. Penal Code Ann. § 22.041(b) (1993). The district court concluded this
offense was comparable to the Kansas crime of aggravated endangering of a child, that is
"[r]ecklessly causing or permitting a child under the age of 18 years to be placed in a
situation in which the child's life, body or health is endangered." K.S.A. 2018 Supp. 21-
5601(b)(1).


       In reaching this conclusion, the district court focused on the "unreasonable risk of
harm" language in the Texas statute, concluding this was in essence identical to the
Kansas element of placing a child "in a situation in which the child's life, body or health
is endangered." Muffoletto disagrees, arguing the Texas crime is broader than the Kansas
offense because there may be situations where a child is exposed to an unreasonable risk
of harm but where the child's life, body, or health is not actually endangered. We agree
with Muffoletto.


       Both the Texas and Kansas statutes have sections that criminalize exposing a child
to an unreasonable risk of harm. Compare Tex. Penal Code Ann. § 22.041(b) (1993) with
K.S.A. 2018 Supp. 21-5601(a). Both contain sections that criminalize exposing a child to
actual or imminent danger. Compare Tex. Penal Code Ann. § 22.041(c) with K.S.A. 2018
Supp 21-5601(b)(1). These statutes demonstrate a legislative intent to treat individuals
who place children in actual danger differently from those who place children in potential
danger. See State v. Martin, No. 110,556, 2015 WL 5224697, at *9 (Kan. App. 2015)
(unpublished opinion), rev. denied 305 Kan. 1256 (2016); Castillo v. State, No. 08-04-


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00377-CR, 2006 WL 1710062, at *5 (Tex. App. 2006) (unpublished opinion). Exposing a
child to a risk of harm is broader than exposing a child to actual harm.


       The district court and the parties only compared the scope of the Texas statute to
K.S.A. 2018 Supp. 21-5601(b)(1). We similarly limit our review to that comparison. As
the "unreasonable risk of harm" provision under Tex. Penal Code Ann. § 22.041(b)
(1993) is broader than the "is endangered" language under K.S.A. 2018 Supp. 21-
5601(b)(1), the district court erred in classifying Muffoletto's Texas offense as a person
felony. See Wetrich, 307 Kan. at 564. We reverse the district court's decision, vacate
Muffoletto's sentence, and remand the case for resentencing.


       Sentence vacated and remanded for resentencing.




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