State v. Moore , 52 Kan. App. 2d 799 ( 2016 )

No. 113,545
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CHARLES H. MOORE,
Appellant.
SYLLABUS BY THE COURT
1.
A defendant's criminal-history score affects the defendant's presumptive sentence
under the Kansas Sentencing Guidelines Act. To determine how to score a defendant's
prior conviction, the district court must determine whether to treat the conviction as a
felony and whether to treat the conviction as a person offense.
2.
Under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), the Sixth Amendment to the United States Constitution requires that any fact that
increases the penalty for a crime beyond the prescribed statutory maximum—other than
the mere fact of a prior conviction—must be submitted to a jury and proved beyond a
reasonable doubt.
3.
In Kansas, a jury verdict, standing alone, authorizes only the sentence the
defendant would receive if he or she had no prior convictions. The district court still may
give the defendant a more severe sentence based on prior convictions under Apprendi, but
only if the district court does not need to make additional factual findings to do so.
4.
The district court determines whether a prior out-of-state conviction is a felony by
looking at whether the crime was classified as a felony in the other state.
5.
The district court determines whether a prior out-of-state conviction is a person
offense by comparing the out-of-state statute under which the defendant was convicted to
the comparable offense in effect in Kansas on the date the crime was committed. To be
comparable, the crimes need only be comparable, not identical.
6.
When determining whether the out-of-state conviction is a person offense, if the
element of the crime that causes it to be a person offense is identical in both the
comparable Kansas offense and the out-of-state offense for which the defendant was
convicted, there is no problem under Apprendi and the offense can be classified as a
person offense even if the two statutes don't match up perfectly in all other respects.
Appeal from Sedgwick County District Court; JOSEPH BRIBIESCA, judge. Opinion filed June 24,
2016. Affirmed.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before GARDNER, P.J., LEBEN, J., and HEBERT, S.J.
LEBEN, J.: In 2005, Charles Moore pled guilty to aggravated indecent liberties
with a child. At sentencing, the district court classified his 1984 Oregon burglary
conviction as a person offense, resulting in a higher criminal-history score and longer
2
sentence than if it had been classified as a nonperson offense. In 2014, he filed a motion
to correct an illegal sentence, which the district court denied.
On appeal, Moore argues that in classifying his Oregon burglary conviction as a
person offense, the district court violated his constitutional rights to a jury trial and due
process because it made a factual finding that increased his sentence but wasn't proved
beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000); Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276,
2288-89, 186 L. Ed. 2d 438 (2013). In State v. Dickey, 301 Kan. 1018, 1036-40, 350 P.3d
1054 (2015), the Kansas Supreme Court relied on Descamps and Apprendi to determine
that the classification of the defendant's prior burglary conviction as a person offense was
unconstitutional. The prior-conviction statute in Dickey criminalized burglary of various
structures but not specifically burglary of a dwelling. Since the classification of burglary
as a person offense depends on whether it involves a dwelling, the district court had gone
into impermissible factfinding when it found that the prior conviction involved a
dwelling—a fact that hadn't been determined by the jury.
But in this case, unlike in Dickey, Moore doesn't argue that the prior-conviction
statute lacked a dwelling element. Instead, he argues that the Oregon statute and the
comparable Kansas statute require different forms of criminal intent and that the district
court in his case engaged in impermissible factfinding about his intent when it found the
two statutes comparable. But the difference between the intent elements isn't relevant to
the person classification of prior burglary convictions, and nothing in the Dickey decision
requires that we look at Moore's intent to determine whether his Oregon crime was a
person or a nonperson offense. We therefore affirm the district court, which denied
Moore's motion to correct an illegal sentence.
3
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, Moore pled guilty to one count of aggravated indecent liberties with a
child. The presentence-investigation report listed Moore's criminal history as "A" based
on his prior convictions, including a 1984 Oregon conviction for first-degree burglary of
a dwelling. At sentencing, Moore initially challenged the validity of the burglary
conviction, but he withdrew his objection when the State presented a certified copy of the
conviction.
The district court sentenced Moore to 494 months in prison based on his criminal-
history score and its finding that he was a persistent sex offender, which doubled his
sentence. See K.S.A. 2004 Supp. 21-4704(j). He did not challenge his criminal-history
score in the direct appeal of his conviction and sentence, and his appeal was dismissed.
State v. Moore, No. 94,309, 2006 WL 903164, at *1 (Kan. App. 2006) (unpublished
opinion).
In December 2014, Moore filed a motion to correct an illegal sentence. He argued
that under State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme
Court order September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251
(2015), cert. denied 136 S. Ct. 865 (2016), the district court was required to recalculate
his criminal-history score and reduce his sentence. The district court denied Moore's
motion, finding that Murdock did not apply. And although Moore had not mentioned the
case in his motion, the court noted that another case dealing with how to calculate
criminal-history scores, State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014),
aff'd 301 Kan. 1018, 350 P.3d 1054 (2015), also didn't apply.
Moore has appealed to this court.
4
ANALYSIS
Moore argues that the district court violated his constitutional rights and imposed
an illegal sentence when it classified his 1984 Oregon burglary conviction as a person
offense, increasing his criminal-history score and, therefore, his sentence.
K.S.A. 22-3504 provides that "[t]he court may correct an illegal sentence at any
time." The Kansas Supreme Court strictly defines an "illegal sentence" as "(1) a sentence
imposed by a court without jurisdiction; (2) a sentence that does not conform to the
applicable statutory provision, either in the character or the term of authorized
punishment; or (3) a sentence that is ambiguous with respect to the time and manner in
which it is to be served." Makthepharak v. State, 298 Kan. 573, 578, 314 P.3d 876
(2013); State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). Defendants can use
K.S.A. 22-3504 to challenge their criminal-history scores because such a challenge meets
the second definition of an illegal sentence: it's a claim that a sentence doesn't conform to
the applicable statutory provision. Dickey, 301 Kan. at 1034 (citing State v. Neal, 292
Kan. 625, 631, 258 P.3d 365 [2011]). But as a general rule, defendants can't use K.S.A.
22-3504 to challenge their sentences on constitutional grounds because a constitutional
challenge doesn't fall within the narrow definition of an illegal sentence. State v. Lee, 304
Kan. 416, 417-18, ___ P.3d ___, 2016 WL 1729385 (2016) (motion to correct illegal
sentence wasn't appropriate way to assert claim that sentence was unconstitutional); State
v. Warrior, 303 Kan. 1008, Syl., 368 P.3d 1111 (2016) ("A motion to correct illegal
sentence under K.S.A. 22-3504[1] is an improper procedural vehicle for a constitutional
claim.").
The State argues that Moore's claim is constitutional and can't be brought under
K.S.A. 22-3504. See Lee, 304 Kan. at 417-18; Warrior, 303 Kan. 1008, Syl. But Dickey
held that when a constitutional challenge impacts a defendant's criminal-history score,
that challenge meets the definition of an illegal sentence: if the criminal-history score is
5
wrong for any reason, the sentence no longer complies with the sentencing statutes.
Dickey, 301 Kan. at 1034 (citing Neal, 292 Kan. at 631); State v. Vasquez, 52 Kan. App.
2d 708, 714-18, ___ P.3d ___, 2016 WL 1728688 (2016) (distinguishing claim that a
sentencing statute is unconstitutional from a claim that a constitutional error caused an
incorrect criminal-history score and illegal sentence); see State v. Luarks, 302 Kan. 972,
975-76, 360 P.3d 418 (2015). Moore's claim can be brought under K.S.A. 22-3504.
The State makes three other procedural arguments, but none keep us from
considering Moore's appeal on the merits. First, Moore can raise his Dickey argument for
the first time on appeal because K.S.A. 22-3504 allows the court to correct an illegal
sentence at any time. Dickey, 301 Kan. at 1027. Second, Moore didn't waive his Dickey
argument by failing to object to his criminal-history score at sentencing: the Kansas
Supreme Court rejected this argument in Dickey and held that a defendant's stipulation or
failure to object at sentencing doesn't prevent the defendant from later challenging how
prior convictions were classified for sentencing purposes. 301 Kan. at 1031. Third, the
State argues that by pleading guilty, Moore waived his right to a jury at sentencing to
determine any facts beyond those to which he pled that would increase his sentence. But
the Kansas Supreme Court has said that under Apprendi, a defendant's guilty plea doesn't
constitute a waiver of his or her due-process rights, including the right to have facts that
increase his or her sentence proved beyond a reasonable doubt. See State v. Cody, 272
Kan. 564, 565-66, 35 P.3d 800 (2001); see also State v. Allen, 283 Kan. 372, 377-78, 153
P.3d 488 (2007). Moore's argument is properly before this court.
Whether a sentence is illegal and whether prior convictions are properly classified
as person or nonperson crimes are questions of law that we review independently,
without any required deference to the district court's conclusions. Luarks, 302 Kan. at
976.
6
We begin our analysis with the Kansas Sentencing Guidelines Act. Under the Act,
a defendant's sentence is based on two factors: the severity of the current offense and the
criminal-history score of the defendant. See K.S.A. 2015 Supp. 21-6804(a) (nondrug
grid); K.S.A. 2015 Supp. 21-6805(a) (drug grid). The severity of the current offense is
simply set forth in Kansas' criminal statutes. See, e.g., K.S.A. 2015 Supp. 21-5807(c)
(listing severity levels for different types of burglary). The criminal-history score, which
is determined by the judge, can range from "I" (no criminal history or one misdemeanor)
to "A" (three or more person felonies). K.S.A. 2015 Supp. 21-6809; K.S.A. 2015 Supp.
21-6804(a).
To calculate the criminal-history score, a court lists all of a defendant's prior
convictions and then classifies each conviction in various ways, including whether it's a
felony or a misdemeanor conviction and whether it's a person or a nonperson conviction.
K.S.A. 2015 Supp. 21-6810. Crimes that cause physical or emotional harm to another
person are generally person offenses and are weighted more heavily, while crimes that
damage property are nonperson offenses and are weighted less heavily. Keel, 302 Kan. at
574-75. So having more prior person convictions will result in a higher criminal-history
score, and a higher criminal-history score will lead to a longer prison sentence. See
K.S.A. 2015 Supp. 21-6804(a); K.S.A. 2015 Supp. 21-6809. For convictions that
occurred in Kansas after the sentencing guidelines became effective in 1993, these
classifications are easy, because they appear in the text of Kansas criminal statutes. Keel,
302 Kan. at 574-75. But for all out-of-state convictions and for pre-1993 Kansas
convictions, the classification process can be less straightforward. See, e.g., K.S.A. 2015
Supp. 21-6811(d), (e).
For an out-of-state conviction, the court makes two classifications after the State
proves that the conviction exists. First, the court determines whether the prior conviction
is a misdemeanor or a felony based on the law of the state where the defendant was
convicted: "An out-of-state crime will be classified as either a felony or a misdemeanor
7
according to the convicting jurisdiction." K.S.A. 2015 Supp. 21-6811(e)(2). And "[i]f a
crime is a felony in another state, it will be counted as a felony in Kansas." K.S.A. 2015
Supp. 21-6811(e)(2)(A). Second, the court determines whether the prior conviction is a
person or a nonperson offense by comparing the prior-conviction statute to the
"comparable offense" in effect in Kansas on the date the current crime was committed.
K.S.A. 2015 Supp. 21-6811(e)(3). Kansas courts have said that "comparable offense"
means what it says: "'the offenses need only be comparable, not identical.'" State v.
Williams, 299 Kan. 870, 873, 326 P.3d 1070 (2014) (quoting State v. Vandervort, 276
Kan. 164, 179, 72 P.3d 925 [2003], overruled on other grounds by Dickey, 301 Kan. at
1032).
Similarly, to classify pre-1993 Kansas convictions as person or nonperson, the
court compares the prior-conviction statute to the "comparable offense" in Kansas in
effect on the date the current crime was committed. K.S.A. 2015 Supp. 21-6810(d)(2);
Keel, 302 Kan. at 581.
Finally, a special rule applies for classifying prior burglary convictions as person
or nonperson: if the prior conviction involved burglary of a dwelling, it's a person crime,
and if it didn't involve a dwelling, it's a nonperson crime. K.S.A. 2015 Supp. 21-6811(d);
State v. Cordell, 302 Kan. 531, 534, 354 P.3d 1202 (2015). This distinction comes from
the justification behind the person/nonperson classification and the definition of
"dwelling": crimes that cause physical or emotional harm to another person are generally
person crimes and are weighted more heavily, Keel, 302 Kan. at 574-75, and whether a
place is a "dwelling" turns on whether it is used or intended to be used as a place for
people to live. K.S.A. 2015 Supp. 21-5111(k). So burglaries of dwellings are more likely
to involve harm to a person and are person offenses. See K.S.A. 2015 Supp. 21-6811(d);
State v. Roose, 41 Kan. App. 2d 435, 439, 203 P.3d 18 (2009).
8
With this review of Kansas sentencing statutes in mind, we turn now to the
relevant constitutional principle. Apprendi held that because of the Sixth Amendment
right to a jury trial, "[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." 530 U.S. at 490. The "prescribed statutory
maximum" is the punishment that's authorized under nothing but the facts found by the
jury. State v. Gould, 271 Kan. 394, 410-11, 23 P.3d 801 (2001). In other words, a Kansas
jury verdict, standing alone, authorizes only the sentence a defendant would receive if he
or she has no criminal history—because the judge, and not the jury, determines a
defendant's criminal-history score. Gould, 271 Kan. at 410-11. Under Apprendi, the court
still can use prior convictions to calculate a defendant's criminal-history score, which
may increase a defendant's sentence. But the court can't increase a defendant's sentence
based on anything except those prior convictions. In Gould, for example, the Kansas
Supreme Court applied Apprendi to hold that upward-departure sentences—increasing
the maximum sentence that a defendant could receive based on aggravating facts found
by the judge—were unconstitutional under Apprendi. 271 Kan. 394, Syl. ¶¶ 2-6.
Apprendi issues also arise, to a more limited extent, when a court looks beyond the
mere existence of a prior conviction to classify it in some way. In Descamps, for
example, the Supreme Court considered how a court should classify prior convictions
when increasing a defendant's sentence under a provision of the federal Armed Career
Criminal Act. See Descamps, 133 S. Ct. at 2282. That Act prescribes a sentence increase
for any felon who possesses a firearm and also has three prior convictions for a "violent
felony" or a "serious drug offense." 18 U.S.C. §§ 922(g), 924(e) (2012). As federal courts
have interpreted the Armed Career Criminal Act, a prior conviction qualifies as a "violent
felony" only if the prior-conviction statute's elements are the same as, or narrower than,
those of the generic offense. 133 S. Ct. at 2281.
9
That rule is derived from the Supreme Court's interpretation of the Armed Career
Criminal Act, not the Constitution, but it has "Sixth Amendment underpinnings," as it
keeps sentencing courts from running afoul of Apprendi. Considering the Apprendi
principle underlying Descamps is illuminating because, broadly speaking, federal
sentencing courts have to look beyond the existence of a prior conviction and determine
whether it qualifies as a "violent felony" or a "serious drug offense" that will increase a
defendant's sentence in the same way that Kansas sentencing courts have to look beyond
the existence of a prior conviction and determine whether it is a person crime that will
increase a defendant's sentence. See Descamps, 133 S. Ct. at 2281-82, 2288-89.
Specifically, in Descamps, the federal sentencing statute defined "violent felony"
as burglary, arson, extortion, or another felony that includes an element of using physical
force against a person. 18 U.S.C. § 924(e)(2)(B) (2012). To determine whether a prior
burglary conviction counts as the type of burglary listed in the definition of "violent
felony," the court compares the elements of the prior-conviction statute to the elements of
the generic offense of burglary. 133 S. Ct. at 2281. To make this comparison without
doing unconstitutional factfinding, federal sentencing courts use what the Supreme Court
has called the categorical and modified-categorical approaches: both are ways to compare
the elements of the prior conviction with elements of the generic offense without looking
into the facts underlying the prior conviction. 133 S. Ct. at 2281.
Under the categorical approach, the court looks only at the elements of the two
offenses. 133 S. Ct. at 2281. The court uses the modified-categorical approach when the
prior-conviction statute is divisible—in other words, when the statute provides alternative
ways of committing the crime. 133 St. Ct. at 2281. Under the modified-categorical
approach, the court can look at a limited set of documents (like indictments and jury
instructions) to determine which of the alternatives the defendant was actually convicted
of. 133 S. Ct. at 2281. So, the modified-categorical approach lets the court look at a few
underlying facts from the prior conviction, but not for sentencing purposes—only to
10
determine which parts of the prior-conviction statute it should compare to the generic
offense. 133 S. Ct. at 2281.
For example, Descamps had a prior burglary conviction from California, and the
California statute was broader than generic burglary because it didn't require proof of
unlawful entry, while generic burglary requires breaking and entering of some kind. The
California statute wasn't divisible because it provided only one way to commit the crime,
but the sentencing court looked at the underlying facts of the prior conviction anyway to
determine whether it had actually involved an unlawful entry. The Supreme Court
reversed, holding that the modified-categorical approach could only be used if the prior-
conviction statute was divisible, to determine which part of the statute the defendant was
convicted under; it couldn't be used to discover other facts about the prior conviction to
make it fit the generic offense. 133 S. Ct. at 2283.
The sentencing court in Descamps had looked at the facts underlying the prior
conviction to determine whether Descamps had actually committed an unlawful entry,
even though he wasn't convicted of a crime that required proof of an unlawful entry. The
court was ultimately trying to determine whether to classify Descamps' prior conviction
as a "violent felony." 18 U.S.C. §§ 922(g), 924(e). And although the Supreme Court
didn't discuss it directly, the unlawful entry, or the breaking-and-entering element, is
arguably what makes burglary a violent felony. See 133 S. Ct. at 2282, 2288-89. So the
sentencing court's factfinding about the breaking-and-entering element in particular
would violate Apprendi: The sentencing court found a fact about the prior conviction and
used that fact to classify the burglary as a violent felony and increase the maximum
sentence that Descamps could receive.
Like in Descamps, Apprendi problems can arise when Kansas courts classify prior
convictions as person or nonperson crimes. See Dickey, 301 Kan. at 1039-40. As
explained earlier, this problem doesn't occur for prior convictions that occurred in Kansas
11
after the Kansas Sentencing Guidelines Act became effective in 1993, because after that
date, Kansas criminal statutes expressly stated whether they were person or nonperson
crimes. But for out-of-state convictions and for pre-1993 in-state convictions, the district
court has to determine whether they involved harm to a person and classify them as
person or nonperson crimes. See K.S.A. 2015 Supp. 21-6811(d), (e)(5) (the facts required
to classify prior burglary convictions and prior out-of-state convictions shall be
established by the State by a preponderance of the evidence); see also K.S.A. 2015 Supp.
21-6810(d) (consider and score pre-1993 Kansas convictions based on comparable
current Kansas offense). This classification is usually made by comparing the prior-
conviction statute to the comparable Kansas statute in effect at the time the current crime
was committed and using the classification in the comparable Kansas statute. Keel, 302
Kan. at 581.
This is what happened in Dickey. There, the district court classified the defendant's
1992 Kansas juvenile adjudication for burglary as a person felony. As discussed, prior
convictions for burglary are scored as person or nonperson offenses based on whether the
prior conviction involved burglary of a dwelling because that's where the potential for
harm to a person occurs. K.S.A. 2015 Supp. 21-6811(d). The 1992 burglary statute didn't
include a dwelling element. Dickey, 301 Kan. at 1039. So the sentencing court would
have had to look at the facts underlying the 1992 conviction, determine that it involved a
dwelling, and then use that fact to classify the conviction as a person felony and increase
the defendant's sentence. This is exactly the type of "judicial factfinding that goes beyond
merely finding the existence of a prior conviction or the statutory elements constituting
that prior conviction" that Apprendi prohibits. 301 Kan. at 1021. So the Dickey court
concluded that "classifying Dickey's prior burglary adjudication as a person felony
violate[d] his constitutional rights." 301 Kan. at 1021.
Here, like in Dickey, Moore challenges the classification of a prior burglary
conviction, but unlike in Dickey, his argument isn't about the dwelling element. Instead,
12
he argues that his prior conviction was wrongly classified as a person offense because the
Oregon burglary statute includes a broader intent element than the Kansas burglary
statute in effect when Moore committed his current crime. Essentially, he argues that
because of this statutory difference, the Kansas burglary statute isn't comparable to the
Oregon statute. And if there is no comparable Kansas crime, the prior conviction must be
classified as nonperson. See K.S.A. 2015 Supp. 21-6811(e)(3) ("If the state of Kansas
does not have a comparable offense in effect on the date the current crime of conviction
was committed, the out-of-state conviction shall be classified as a nonperson crime.").
Because Moore's prior conviction comes from Oregon, the court had to classify it
in two key ways after the State proved that it existed. First, the court had to determine
whether it was a misdemeanor or a felony, based on how Oregon classified it. K.S.A.
2015 Supp. 21-6811(e)(2). Oregon classifies burglary as a felony, Or. Rev. Stat. §
164.225(2), so the sentencing court classified the prior conviction as a felony. K.S.A.
2015 Supp. 21-6811(e)(2)(A). Second, the court had to classify the Oregon conviction as
a person or a nonperson crime by (a) determining the comparable offense in effect in
Kansas on the date the current crime was committed, K.S.A. 2015 Supp. 21-6811(e)(3),
and (b) looking specifically at whether the Oregon statute included a dwelling element
because that's what makes burglary a person offense in Kansas. K.S.A. 2015 Supp. 21-
6811(d).
When determining which Kansas statute is comparable to an out-of-state
conviction, "'the offenses need only be comparable, not identical.'" Williams, 299 Kan. at
873 (quoting Vandervort, 276 Kan. at 179). In other words, a comparable crime "must be
'similar in nature and cover a similar type of criminal conduct.'" State v. Riolo, 50 Kan.
App. 2d 351, 353, 330 P.3d 1120 (2014), rev. denied 302 Kan. ___ (2015) (quoting State
v. Barajas, 43 Kan. App. 2d 639, 643, 230 P.3d 784 [2010]); see State v. Buoy, No.
113,796, 2016 WL 1546422, at *4 (Kan. App. 2016) (unpublished opinion) (comparing
first-degree criminal trespass in Arizona to the Kansas statutes for burglary and criminal
13
trespass and determining that the Kansas criminal-trespass statute is more comparable).
In Williams, the defendant made essentially the same argument that Moore makes here:
that the Kansas offense wasn't comparable because the out-of-state statute required intent
to commit any crime, while the Kansas statute required intent to commit a felony, theft,
or sexual battery. Williams, 299 Kan. at 874. But the Williams court rejected that
argument, stating that "the evidence-based approach Williams promotes is not the
approach used by Kansas courts. Our courts examine the out-of-state crime of conviction
and attempt to find a comparable Kansas crime." 299 Kan. at 874. The court went on to
note specifically: "In this legal review of criminal statutes, there is no review of the
evidence surrounding the out-of-state conviction." 299 Kan. at 875.
Williams was decided before Dickey, but the statutory comparison that the
Williams court describes is consistent with Dickey and doesn't implicate Apprendi
because the court looks only at the statutory elements and not at the facts underlying the
prior conviction. Williams, 299 Kan. at 874-75. Indeed, this comparability analysis is
completely consistent with the categorical approach described in Descamps and Dickey.
Descamps, 133 S. Ct. at 2281; Dickey, 301 Kan. at 1037. A court violates Apprendi if (1)
it makes factual findings about the prior conviction and (2) those findings increase the
maximum sentence that a defendant could receive. 530 U.S. at 490; see also Alleyne v.
United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) (extending
Apprendi to hold that any fact that increases a prescribed statutory minimum sentence,
not just a maximum one, must be proven to a jury). But in the comparable-offense
analysis, the court looks only for comparable statutory elements; it doesn't make any
factual findings about the prior conviction, so the Apprendi rule doesn't come into play.
Williams, 299 Kan. at 874-75; see State v. Friesen, No. 113,495, 2016 WL 1546178, at
*3 (Kan. App. 2016) (unpublished opinion) (describing Apprendi as a limit on the
statutory comparison that prohibits a court from making factual findings beyond
identifying statutory elements).
14
So, having determined that the Oregon burglary is a felony, the court next has to
determine which Kansas statute is comparable. K.S.A. 2015 Supp. 21-6811(e)(3). The
comparable Kansas statute is the one that was in effect in 2004, when Moore committed
the crimes at issue here. Keel, 302 Kan. at 581. (The relevant statutes haven't changed
much in substance since then; the minor changes that have been made do not affect the
arguments here. For the convenience of today's reader, then, we will cite to the most
current statutes in this opinion.) Kansas burglary is: "without authority, entering or
remaining within" either a dwelling or a nondwelling "with intent to commit a felony,
theft or sexually motivated crime therein." (Emphasis added.) K.S.A. 2015 Supp. 21-
5807(a). Kansas burglary is a person crime if it involves a dwelling. K.S.A. 2015 Supp.
21-6811(d). Kansas defines "dwelling" as "a building or portion thereof, a tent, a vehicle
or other enclosed space which is used or intended for use as a human habitation, home or
residence." K.S.A. 2015 Supp. 21-5111(k).
Oregon criminalizes burglary in the second degree as entering or remaining
"unlawfully in a building with intent to commit a crime therein." (Emphasis added.) Or.
Rev. Stat. § 164.215. But Moore concedes that he was convicted of first-degree burglary
in Oregon under Or. Rev. Stat. § 164.225:
"(1) A person commits the crime of burglary in the first degree if the person
violates O.R.S. 164.215 and the building is a dwelling, or if in effecting entry or while in
a building or in immediate flight therefrom the person:
(a) Is armed with a burglar's tool as defined in O.R.S. 164.235 or a deadly
weapon; or
(b) Causes or attempts to cause physical injury to any person; or
(c) Uses or threatens to use a dangerous weapon." (Emphasis added.)
Oregon defines "dwelling" as "a building which regularly or intermittently is occupied by
a person lodging therein at night, whether or not a person is actually present." Or. Rev.
Stat. §§ 164.205(2); 164.225.
15
We note that the Oregon statute is divisible because it provides multiple ways to
commit first-degree burglary: either it involved a dwelling, a burglar's tool, physical
injury to another, or a dangerous weapon. See Descamps, 133 S. Ct. at 2281; Dickey, 301
Kan. at 1037-38. But Moore doesn't argue that the district court erred when it classified
this conviction as a person crime because that classification was based on a factual
finding that the Oregon burglary conviction involved a dwelling. If he had, we would
remand the case for the district court to use the modified-categorical approach and
examine documents related to the Oregon conviction to determine, if it could, under
which of these alternatives Moore was convicted. See Descamps, 133 S. Ct. at 2281;
Dickey, 301 Kan. at 1037-38. If he was convicted under any of the alternatives except the
dwelling option, or if the district court couldn't determine which of the alternatives
formed the basis of the conviction, then the court would have to classify it as a nonperson
crime. See Dickey, 301 Kan. at 1039; State v. Mullens, 51 Kan. App. 2d 1114, 360 P.3d
1107, 1111 (2015). But if the modified-categorical approach showed that Moore was
convicted of first-degree burglary based on the dwelling element, then the Oregon
conviction would be properly classified as a person crime because the Oregon and
Kansas definitions of "dwelling" are similar and both turn on the potential presence of a
person. Compare Or. Rev. Stat. §§ 164.205(2), with K.S.A. 2015 Supp. 21-5111(k).
We do not remand for that purpose, however, because nowhere in his brief on
appeal does Moore argue that the "dwelling" elements of the Oregon and Kansas statutes
aren't identical, and he has not disputed that he was convicted of first-degree burglary of
a dwelling in Oregon. Moore did initially challenge the classification of this conviction at
sentencing, but after he and his counsel reviewed the certified record of the conviction, he
dropped his challenge. And the presentence-investigation report, to which he dropped his
objection, lists the conviction as "Burglary in the First Degree (Dwelling)."
16
Moore instead argues that his prior conviction was wrongly classified as a person
crime because the Oregon burglary statute included a broader intent element than the
comparable Kansas burglary statute, making the crimes not actually comparable and
requiring a nonperson classification. See K.S.A. 2015 Supp. 21-6811(e)(3). Moore is
correct that the Oregon intent element is broader than the Kansas intent element, but he is
wrong that this difference comes into play in deciding whether his Oregon conviction
was a person offense.
Moore's argument is based on the broad rule recited in Descamps that the prior-
conviction statute must be identical or narrower than the elements of the generic offense
to qualify as a violent felony and increase a defendant's sentence. 133 S. Ct. at 2281. But
this identical-or-narrower rule is a federal rule governing interpretation of the Armed
Career Criminal Act. See Taylor v. United States, 495 U.S. 575, 588, 110 S. Ct. 2143,
109 L. Ed. 2d 607 (1990) (The Act "intended that the enhancement provision be triggered
by crimes having certain specified elements, not by crimes that happened to be labeled
'robbery' or 'burglary' by the laws of the State of conviction."). Indeed, the categorical
approach existed before Apprendi was decided; only later did the Court in Descamps
recognize that it helped prevent Apprendi violations. State v. Buell, ___ Kan. App. 2d
___, ___ P.3d ___ (No. 113,881, this day decided), slip. op at 16; see Descamps, 133 S.
Ct. at 2288 (noting that classifying a prior conviction "would (at the least) raise serious
[constitutional] concerns if it went beyond merely identifying a prior conviction"). This
rule served as background in Descamps, in which the court compared a specific
California burglary statute to the generic offense of burglary: Under the Armed Career
Criminal Act, the California burglary statute had to be identical or narrower than generic
burglary. 133 S. Ct. at 2281.
But in Kansas, there's no statutory requirement that an out-of-state offense be
identical or narrower than the comparable Kansas offense. Buell, slip op. at 15; Williams,
299 Kan. at 873. And while the Kansas Supreme Court relied on Descamps to decide
17
Dickey, it focused on the Apprendi principle, not on the identical-or-narrower rule. See
Dickey, 301 Kan. at 1039-40. And it also didn't adopt the identical-or-narrower rule—
doing so would have required overruling past Kansas caselaw holding that the
comparable Kansas offense doesn't have to be identical to the prior-conviction statute and
that the question is whether the statutes prohibit similar conduct. See, e.g., Williams, 299
Kan. at 873 (quoting Vandervort, 276 Kan. at 179); State v. Riolo, 50 Kan. App. 2d at
353 (quoting Barajas, 43 Kan. App. 2d at 643).
So Kansas doesn't require comparable statutes to be identical—but is the
difference between intent elements as meaningful as a difference in dwelling elements
can be when classifying prior convictions as person or nonperson crimes? See Dickey,
301 Kan. at 1038-40. In a word, no.
Moore's Oregon conviction is definitely a felony. See Or. Rev. Stat. § 164.225(2);
K.S.A. 2015 Supp. 21-6811(e)(2)(A). And prior felony convictions are either person or
nonperson, with nonperson being the lower and default option. See, e.g., K.S.A. 2015
Supp. 21-6811(e)(3) (if there's no comparable crime in Kansas, an out-of-state felony is a
nonperson felony). So a nonperson classification doesn't implicate Apprendi because the
classification doesn't increase a defendant's sentence—it only shows the fact of a prior
conviction, as expressly permitted under Apprendi. 530 U.S. at 490. But changing the
classification to "person" will increase a defendant's sentence because crimes that cause
physical or emotional harm to another person are weighted more heavily in the
sentencing guidelines. Buell, slip op. at 7; Keel, 302 Kan. at 574-75; see K.S.A. 2015
Supp. 21-6804(a); K.S.A. 2015 Supp. 21-6809.
For burglary convictions, the dwelling element is the only thing that separates
person burglary from nonperson burglary; in other words, the level of intent required for
nonperson burglary is the same as person burglary. K.S.A. 2015 Supp. 21-6811(d); see
K.S.A. 2015 Supp. 21-5807; Buell, slip op. at 16. So intent is irrelevant to the person
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classification of Moore's Oregon burglary conviction. As such, there's no reason to use
the Descamps categorical or modified-categorical approach to avoid an Apprendi
problem because the difference in the statutes isn't related to increasing Moore's sentence.
Buell, slip op. at 16.
We recognize that in some earlier cases, other panels of this court have reached
the opposite conclusion and have remanded cases similar to this one for application of the
categorical or modified-categorical approaches. These panels have concluded, although
without much explanation, that Dickey adopted the identical-or-narrower rule from
Descamps and that such a result was mandated by Apprendi, Descamps, and Dickey.
Mullens, 51 Kan. App. 2d at 1119-20 (remanding for the modified-categorical approach
on the intent elements in the Texas and Kansas burglary statutes); see State v. Gonzales,
No. 107,798, 2016 WL 299042, at *7 (Kan. App. 2016) (unpublished opinion), petition
for rev. filed on other grounds February 22, 2016 (same for "in or on" element of the
Arizona burglary statute); State v. Lewis, No. 113,438, 2016 WL 1546133, at *5 (Kan.
App. 2016) (unpublished opinion) (same for " building or habitation " element of the
Texas burglary statute); State v. Morris, No. 111,783, 2016 WL 299056, at *4-5 (Kan.
App. 2016) (unpublished opinion), petition for rev. filed February 5, 2016 (affirming
sentence because prior Kansas battery and assault conviction statutes were narrower than
comparable Kansas statutes); see also State v. Smith, No. 113,297, 2016 WL 1391767, at
*9-10 (Kan. App. 2016) (unpublished opinion), petition for rev. filed April 29, 2016
(remanding for modified-categorical approach to compare both the dwelling and intent
elements of the South Carolina and Kansas burglary statutes); State v. Sturgis, No.
112,544, 2015 WL 9286956, at *18 (Kan. App. 2015) (unpublished opinion), petition for
rev. filed January 14, 2016 (same for intent element of Michigan home-invasion statute).
Another panel of our court, in the Buell opinion also filed today, is in agreement
with us that we need not look at additional documents and facts under the modified-
categorical approach to determine which part of a divisible statute applied to the
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defendant unless one of those divisible alternatives has a meaningful impact on the
person classification of the prior conviction. Buell, slip. op. at 16. The modified-
categorical approach is just a tool to figure out which part of the statute the defendant was
convicted under, nothing more. 133 S. Ct. at 2285. And if we don't need to know which
part of the statute the defendant was convicted under, either to choose the comparable
Kansas statute or to determine whether, within that comparable statute, the element
relevant to the person classification matches the prior conviction statute, then we don't
need to do the modified-categorical approach. Cf. Lewis, 2016 WL 1546133, at *5 (an
example of where the modified-categorical approach would be appropriate because the
prior-conviction statute criminalized burglary of a "building or habitation" and only
"habitation" fit the Kansas definition of "dwelling").
As a group, Mullens, Gonzales, Smith, and Sturgis (four of the six cases listed
above) all involved a prior burglary or home-invasion conviction from another state. See,
e.g., Mullens, 51 Kan. App. 2d at 1118. They began their analyses by pointing out the
differences between the prior-conviction statute and the comparable Kansas statute. See,
e.g., 51 Kan. App. 2d at 1116-17. In doing so, none of them discussed or cited the Kansas
caselaw that says "comparable" doesn't mean "identical." See, e.g., 51 Kan. App. 2d at
1118-20. Then they stated that Dickey adopted the Descamps analysis, noted that the out-
of-state prior-conviction statutes were divisible, and remanded for the district court to
apply the modified-categorical approach to determine both (1) which section of the prior-
conviction statute the defendant was convicted under and (2) whether that section was
identical to or narrower than the Kansas statute. See, e.g., 51 Kan. App. 2d at 1118-20.
They did this without regard for how or why Kansas courts classify crimes as person or
nonperson, even though for burglary crimes, the only element relevant to the
person/nonperson classification is whether the crime involved a dwelling. Accordingly, in
our view, these cases reached the wrong result because they overlooked the Kansas
definition of "comparable" and adopted the broad identical-or-narrower rule from
Descamps.
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We do not lightly disagree with prior decisions reached by our court. But panels of
our court are allowed to do so. See State v. Urban, 291 Kan. 214, 223, 239 P.3d 837
(2010). And such disagreement can alert the Kansas Supreme Court to conflicting rulings
that it may need to resolve. See K.S.A. 20-3018(b) (providing that the Supreme Court
may review Court of Appeals decision when in conflict with another). Or it may be that
our court will collectively adopt the approach taken today in Buell and Moore. Time will
tell on that front.
In sum, to classify out-of-state convictions as person or nonperson offenses for
sentencing purposes, first we compare statutory elements to determine which Kansas
statute is "comparable." K.S.A. 2015 Supp. 21-6811(e). The Descamps categorical and
modified-categorical approaches are consistent with this comparison and provide
protection against unconstitutional factfinding because they direct courts to focus on
statutory elements rather than underlying facts. See Dickey, 301 Kan. at 1038-39. Second,
the court classifies the conviction as person or nonperson based on that comparable
Kansas crime. K.S.A. 2015 Supp. 21-6811(e)(3). If the element of the comparable Kansas
crime that causes it to be a person crime is narrower than that same element as it exists in
the prior-conviction statute, we have an Apprendi problem like the dwelling issue in
Dickey. 301 Kan. at 1039-40. But if other elements of the two statutes don't match up
perfectly, there's no Apprendi problem because the court doesn't rely on those elements to
make the person/nonperson classification.
So here, Moore's Oregon burglary is comparable to a Kansas burglary, and the
differences in the statutes aren't relevant to the person classification. Moore's Oregon
burglary conviction was correctly classified as a person crime, and the district court
properly denied Moore's motion to correct an illegal sentence.
We therefore affirm the district court's judgment.
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