377 P.3d 1174
Kan. Ct. App.2016Background
- Derrick Buell pleaded guilty (Feb 2015) to robbery and attempted kidnapping; PSI listed two 2002 Florida juvenile adjudications: "burglary of a dwelling" and "burglary of a dwelling while armed."
- At sentencing Buell objected that the "while armed" adjudication should not be treated as a Kansas "person" felony because Florida's intent element is broader than Kansas'. He did not object below to classification of the other Florida adjudication.
- The district court classified both Florida adjudications as person felonies, scored Buell's criminal history as category A, and sentenced him to a total of 122 months' imprisonment.
- On appeal Buell argued the court engaged in unconstitutional judicial factfinding in violation of Apprendi and Descamps by treating his Florida adjudications as person offenses. The State raised preservation and waiver arguments and defended the scoring.
- The Kansas Court of Appeals held the challenges were properly considered and affirmed: Florida adjudications were felonies, Kansas burglary is the comparable offense, and use of the Descamps/categorical framework did not require impermissible factfinding given the record and statutory divisibility.
Issues
| Issue | Buell's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the district court unconstitutionally classified Buell's prior Florida juvenile burglary adjudications as person felonies (thereby increasing his criminal history score) | Florida burglary is broader (criminalizes intent to commit any offense) than Kansas burglary (requires intent to commit felony/theft/sexual battery); using those adjudications as person felonies required impermissible judicial factfinding under Apprendi/Descamps | The issue is waived or not preserved; Buell waived jury at sentencing; and the Florida adjudications are comparable to Kansas burglary so classification was proper | Affirmed. Court found adjudications were felonies and comparable to Kansas burglary; Descamps' framework applied but did not require unconstitutional factfinding given divisibility and concessions in the record |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (facts increasing penalty beyond statutory maximum must be submitted to a jury)
- Descamps v. United States, 133 S. Ct. 2276 (categorical and modified categorical approaches for determining whether prior convictions qualify for sentence enhancements)
- Taylor v. United States, 495 U.S. 575 (categorical approach origins for ACCA predicate offenses)
- Shepard v. United States, 544 U.S. 13 (permissible documents under the modified categorical approach)
- State v. Dickey, 301 Kan. 1018 (Kansas adoption of Descamps analysis for KSGA person/nonperson classification)
- State v. O'Connor, 299 Kan. 819 (Kansas held Florida burglary comparable to Kansas burglary)
- State v. Williams, 299 Kan. 870 (rejected argument that differing intent elements prevent comparability)