Description: Wichita, Kansas possession of heroin criminal defense lawyer represented the Defendant.



Anthony McKimmy contends he is serving an illegal sentence because a prior out-of-state conviction was improperly scored as a person felony crime. He is correct. We thus vacate McKimmy's sentence and remand for resentencing.

McKimmy pled guilty to possession of heroin, a severity level 5 drug felony. That crime occurred in April 2016. On December 1, 2020, the district court sentenced McKimmy to 32 months in prison. The court suspended the prison component of his sentence and placed McKimmy on probation for 18 months. The district court sentenced
McKimmy using a criminal history score of C. McKimmy did not object to his criminal history when he was sentenced. McKimmy's presentence investigation report listed one prior person felony-a 2018 Illinois conviction for grooming under 720 Ill. Comp. Stat. § 5/11-25 (2018).

Since then, McKimmy has violated the conditions of his probation many times and has served several jail sanctions. In September 2023, the district court imposed a 180-day prison sanction after McKimmy failed several drug tests. Two weeks later, he filed a notice of appeal. The State tells us that McKimmy's probation has since been revoked and he is serving his underlying sentence.

For the first time, McKimmy in this appeal contends that his Illinois grooming conviction was wrongly scored as a person felony. He maintains that the identical-to-or-narrower test adopted in Wetrich controls this issue. State v. Wetrich, 307 Kan. 522, 555, 412 P.3d 984 (2018). The State agrees.

Outcome: Sentence vacated and case remanded.

State v. McKimmy, 126,941 (Kan. App. Sep 06, 2024)

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