Counting Lessons for Lawyers: A “Third or Subsequent” Conviction Requires a Preexisting First and Second Conviction for Drug-Crime Sentencing

State v. Bell, No. 125,770, 2024 WL 5174550 (Kan. Ct. App. Dec. 20, 2024).

Author: Carson Schmidt, Staff Editor

Issue: When sentencing for drug crimes, does K.S.A. § 21-6805(f)(1) use the “inclusive rule” for “third or subsequent felony [drug] conviction[s]”—such that when a defendant with one prior conviction is concurrently convicted of two separate felony drug convictions, each crime scores the other as its second prior conviction and is itself designated as a third conviction?

Answer: No. Under K.S.A. § 21-6805(f)(1), a third or subsequent conviction requires having preexisting first and second convictions. In such circumstances, only one of the crimes may be designated as a third conviction.

Facts: On July 14, 2022, Brandon Steven Russell Bell pled no contest to two separate charges for possession of methamphetamine.  He had one prior conviction for a felony drug crime.  The district court applied the inclusive rule, designating the convictions for possession as a third felony conviction.  

According to the district court’s interpretation, a third or subsequent conviction triggers “a presumptive term of imprisonment.”  Thus, Bell received two consecutive sentences of 30 months in prison.  Bell appealed, arguing that the district court erred in its statutory interpretation. 

Discussion: The Kansas Court of Appeals considered whether the legislature intended for the inclusive rule from K.S.A. § 21-6810(a) to apply to third or subsequent convictions under K.S.A. § 21-6805(f)(1). 

Bell cited State v. Unruh, 177 P.3d 411 (Kan. Ct. App. 2008), which determined that the inclusive rule does not apply to sentencing for unlawful manufacturing of a controlled substance. The inclusive rule was inconsistent with the legislature’s intent since “a defendant would never have a first conviction” in some situations.^[1]

The State cited State v. Shipley, 510 P.3d 1194, 1200 (Kan. Ct. App. 2022), which held that convictions from separate and concurrent cases count as prior convictions.

The Kansas Court of Appeals noted that the Shipley court only addressed its issue in the context of grading a defendant’s criminal history.  The court agreed with the Unruh court’s logic, stating that the legislature could not have intended to use the inclusive rule for K.S.A. § 21-6805(f)(1) since ordered sequences logically require that a second conviction must exist before a third can arise.

The court added that “which conviction becomes second or third is left to the district court’s discretion.”  It vacated Bell’s sentence and remanded the case for resentencing.

Key Authorities: K.S.A. 21-6805(f)(1); K.S.A. 21-6810(a); State v. Unruh, 177 P.3d 411 (Kan. Ct. App. 2008); State v. Shipley, 510 P.3d 1194 (Kan. Ct. App. 2022).

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^[1]  Unruh, 177 P.3d 39 Kan. App. at 419.