Apples and . . . More Apples: When Crimes are Comparable for Sentencing
State v. McCray, No. 125,798, (Kan. Dec. 12, 2025).
Staff Editor Keith Marshall
February 23, 2026
Issue: When Kansas courts decide whether an out-of-state conviction counts as a “person” crime for sentencing, do they consider the manner of liability?
Answer: Not for crimes committed before Kansas revised the Sentencing Guidelines Act (KSGA) in 2019, where the manner of liability—such as aiding and abetting—does not factor into the court’s analysis.
Facts: Xavier McCray pled guilty to criminal possession of a firearm by a convicted felon for conduct in 2016. At sentencing, his criminal history score included a prior Illinois conviction for aggravated discharge of a firearm, which the Kansas presentence investigation (PSI) report classified as a person felony.
McCray objected. He argued that his Illinois conviction should not count as a person crime because he was charged based on a co-defendant’s actions under a theory of third-party liability. In his view, Illinois’ liability rules were broader than Kansas’ aiding-and-abetting law, making the conviction not “comparable.”
The district court rejected that argument and counted the conviction as a person felony. The Kansas Supreme Court affirmed.
Discussion: Because McCray’s Kansas crime occurred in 2016, the court applied the pre-2019 version of the Kansas Sentencing Guidelines Act (KSGA). At that time, courts classified out-of-state convictions by asking whether they were “comparable” to Kansas offenses. Although the statute did not define “comparable,” Kansas case law—particularly State v. Wetrich—established an elements-based test: an out-of-state offense is comparable if its elements are identical to or narrower than the Kansas offense.
Here, McCray urged the court to consider the theory of liability used in his Illinois case. He argued that because he was held liable for another person’s conduct, the court should compare Illinois’ third-party liability rules with Kansas law and conclude that they are not "comparable" under the statute.
The Kansas Supreme Court rejected that approach. It emphasized three key points. First, the KSGA’s language focuses on comparing offenses, not liability theories. Nothing in the statute directs courts to analyze how liability was established. Second, Kansas law does not treat aiding and abetting (or other forms of accomplice liability) as separate crimes. Rather, those doctrines simply extend liability for the same underlying offense.Third, the Legislature is presumed to know the law. If it intended courts to consider liability theories in criminal-history scoring, it could have said so—but it did not.
Taken together, these principles led the court to reaffirm an elements-only rule: sentencing courts compare statutes, not theories of liability.
Key Authorities:
Kan. Stat. Ann. § 21-6811(e)(3) (Supp. 2015) (classifying out of state convictions as person crimes based on whether there is a comparable Kansas statute).
State v. Wetrich, 412 P.3d 984 (2018) (holding that an out of state crime is comparable to a Kansas person crime when the elements of the out of state statute are identical to or narrower than the Kansas statute).
Kan. Stat. Ann. § 21-6811(e)(3) (Supp. 2019) (replacing the comparable language with specific elements to classify felony person crimes).