                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                               No. 115,111

                                           STATE OF KANSAS,
                                               Appellee,

                                                      v.

                                           MICHAEL F. RUSS,
                                              Appellant.


                                   SYLLABUS BY THE COURT

1.
        The revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6801 et
seq., uses prior municipal ordinance convictions when calculating a person's criminal
history. Under the Act, Kansas classifies a municipal ordinance conviction as a person or
nonperson offense by referring to comparable misdemeanor offenses under the Kansas
criminal code. If the code does not have a comparable offense, the municipal ordinance
conviction is classified as a nonperson crime.


2.
        Generally, an issue is moot when a judgment of the appellate court would be of no
consequence.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed May 5, 2017.
Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed June 28, 2019. Judgment
of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.


        Kai Tate Mann, of Kansas Appellate Defender Office, was on the briefs for appellant.




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        Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.


The opinion of the court was delivered by


        BILES, J.: Michael F. Russ appeals the sentencing court's classification of his prior
misdemeanor convictions for violating a City of Wichita municipal ordinance as person
offenses to calculate his criminal history score. He claims a Kansas Court of Appeals
panel erred by (1) looking beyond the most comparable Kansas offense, i.e., domestic
battery, to analyze his Wichita municipal ordinance domestic battery convictions; and (2)
declining to address as moot an issue concerning his prior conviction of failure to comply
with bond restrictions. See State v. Russ, No. 115,111, 2017 WL 1821215, at *4 (Kan.
App. 2017) (unpublished opinion). We affirm.


        We hold the Wichita domestic battery ordinance is narrower than the comparable
state statute, so the panel did not err when it held the district court properly classified the
municipal violations as person offenses. See State v. Wetrich, 307 Kan. 552, 561, 412
P.3d 984 (2018) (holding that to be "comparable" under K.S.A. 2017 Supp. 21-
6811(e)(3), "the out-of-state crime cannot have broader elements than the Kansas
reference offense"). As to the second error claimed, we hold the panel correctly
determined the issue was moot because it could have no practical effect on the outcome.
See State v. Montgomery, 295 Kan. 837, Syl. ¶ 3, 286 P.3d 866 (2012); State, ex rel., v.
Bissing, 210 Kan. 389, 397, 502 P.2d 630 (1972).


                            FACTUAL AND PROCEDURAL BACKGROUND

        Russ pleaded guilty to attempted second-degree murder, a severity level 3 person
felony, for acts committed in January 2015. A presentence investigation report

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recommended a B criminal history score. See K.S.A. 2016 Supp. 21-6809 (B criminal
history score requires two person felonies). It reflected several prior convictions,
including six Wichita municipal violations classified as person misdemeanors, five of
which were eligible for conversion to a felony. See K.S.A. 2016 Supp. 21-6811(a)
(providing every three prior convictions for class A and B person misdemeanors to be
rated as a person felony).


       The report further recommended aggregating two 1998 domestic battery
convictions and one 1998 conviction for failure to comply with bond restrictions and
converting them into one person felony. It did not convert the other two eligible
convictions—a 2015 domestic battery conviction and a 2015 conviction for violation of a
protective order—leaving them listed as person misdemeanor offenses. Russ did not
object to the criminal history score recommendation.


       The district court sentenced him to 206 months in prison, which was the mitigated
presumptive sentence. See K.S.A. 2016 Supp. 21-6804(a). Russ appealed, arguing the
district court erred by classifying four of his prior municipal ordinance convictions as
person offenses: two 1998 domestic battery convictions, a 2015 domestic battery
conviction, and his 1998 conviction for failure to comply with bond restrictions. Pertinent
to our review, he claimed the domestic battery ordinances were broader than the
counterpart Kansas statute.


       Russ argued the Kansas domestic battery statute prohibited only battery by a
family or household member against a family or household member, while the 2012
ordinance also prohibited battery between persons "in a 'dating relationship,'" and the
1996 ordinance prohibited battery among "domestic partners." Compare K.S.A. 2014
Supp. 21-5414(a), with Wichita Mun. Code § 5.10.025 (2012), and Wichita Mun. Code
§ 5.10.025 (1996). Implicitly relying on the simple battery statute, K.S.A. 2018 Supp. 21-
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5413(a), the panel reasoned that "[r]egardless of the relationship between the batterer and
the victim battered, a battery in Kansas is a person offense." Russ, 2017 WL 1821215, at
*4.


       The panel further held Russ' challenge to the failure-to-comply-with-bond-
restrictions conviction's classification was moot. It reasoned that even if the conviction
was classified differently, his criminal history score would be the same because there
would be enough remaining conversion-eligible misdemeanor convictions to be
aggregated and scored as a person felony. 2017 WL 1821215, at *4.


       Russ petitioned for review, which this court granted. Jurisdiction is proper. K.S.A.
20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-
2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon
petition for review).


      CLASSIFYING THE DOMESTIC BATTERY MUNICIPAL ORDINANCE VIOLATIONS

       Classification of prior offenses for criminal history purposes involves
interpretation of the revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-
6801 et seq., and statutory interpretation is a question of law subject to this court's
unlimited review. Wetrich, 307 Kan. at 555. Russ argues the panel erred by affirming the
sentencing court's classification of his Wichita domestic battery convictions as person
misdemeanors.


       Under the KSGA, when calculating a defendant's criminal history score, a
sentencing court must consider and score prior "convictions and adjudications for
violations of municipal ordinances . . . which are comparable to any crime classified
under the state law of Kansas as a person misdemeanor, select nonperson class B

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misdemeanor or nonperson class A misdemeanor." K.S.A. 2018 Supp. 21-6810(a). The
KSGA further provides: "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).


       In Wetrich, 307 Kan. at 562, the court held "comparable offenses" in K.S.A. 2017
Supp. 21-6811(e)(3) means "the elements of the out-of-state crime cannot be broader than
the elements of the Kansas crime. In other words, 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." Similar to K.S.A. 2017 Supp. 21-6811(e)(3), the statute relevant to the
current case requires the municipal ordinance convictions be "comparable" to any Kansas
misdemeanor. See K.S.A. 2018 Supp. 21-6810(a). Accordingly, when the code does not
have a comparable offense, the municipal ordinance conviction is classified as a
nonperson crime.


       Neither party mentions whether we should extend Wetrich's statutory
interpretation of the term "comparable offense" as used in K.S.A. 2017 Supp. 21-
6811(e)(3) to the same term used in K.S.A. 2018 Supp. 21-6810(a) for scoring municipal
ordinance violations. But that is the logical result for the same reason Wetrich adopted
the identical-or-narrow rule: "further[ing] the KSGA's goal of an even-handed,
predictable, and consistent application of the law across jurisdictional lines." 307 Kan. at
561-62; cf. State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) ("[A] defendant
will receive the benefit of any change in the law that occurs while the direct appeal is
pending.").




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       Applying Wetrich to our case, the panel correctly held Russ' 1998 and 2015
domestic battery ordinance violations were person offenses. K.S.A. 2018 Supp. 21-
5413(a) defines battery as "[k]knowingly or recklessly causing bodily harm to another
person; or . . . knowingly causing physical contact with another person when done in a
rude, insulting or angry manner." Considering how broadly the Kansas statute defines a
simple battery, acts constituting an ordinance violation under the 2012 and 1996 versions
of Wichita Mun. Code § 5.10.025 would always violate the state statute, and its violation
is a person offense. See K.S.A. 2018 Supp. 21-5413(a), (g)(1). The only difference
between the ordinances and the statute is the specific requirement of the relationship
between the batterer and the battered, which makes the scope of the ordinance's
proscribed acts narrower, not broader.


                                         MOOTNESS

       The panel correctly declined to address the matter (question/issue/claim) regarding
Russ' prior conviction of failure to comply with bond restriction. See Russ, 2017 WL
1821215, at *4; Bissing, 210 Kan. at 397 (issue moot when judgment would be of no
consequence). Since all three domestic batteries were properly scored as person
misdemeanors, his criminal history score is certain to include a misdemeanor-conversion
person felony. See K.S.A. 2018 Supp. 21-6811(a). Regardless of the failure to comply
with bond restrictions' classification, Russ' criminal history score remains B. See Sierra
Club v. Moser, 298 Kan. 22, 60, 310 P.3d 360 (2013) (declining to address issues mooted
by other parts of decision); Montgomery, 295 Kan. 837, Syl. ¶ 3 ("An appeal will not be
dismissed as moot unless it clearly and convincingly appears that the actual controversy
has ceased and the only judgment which could be entered would be ineffectual for any
purpose.").


       Affirmed.

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