State v. Dickey
329 P.3d 1230
Kan. Ct. App.2014Background
- Defendant Jeff Dickey pleaded guilty to felony theft (charged Dec 2012; plea Apr 9, 2013). Sentencing occurred May 16, 2013.
- Presentence report scored Dickey in criminal history category A based on three person-felony priors, including a 1992 Kansas juvenile adjudication for burglary (pre-KSGA).
- Under K.S.A. 2013 Supp. 21-6811(d), pre-1993 burglary adjudications are scored as person felonies only if they would be classified under the current statute as burglary of a dwelling; the State bears the preponderance burden to prove this.
- At sentencing Dickey did not object to the criminal history worksheet and acknowledged he understood he was scored as category A.
- The district court considered record evidence to conclude the 1992 adjudication involved a dwelling and treated it as a person felony, increasing his criminal-history score and the applicable sentence.
- On appeal Dickey argued (relying on Apprendi and Descamps) the district court violated his Sixth Amendment rights by looking beyond statutory elements of the 1992 burglary adjudication to enhance his sentence beyond the statutory maximum; the Kansas appellate court vacated the sentence and remanded for resentencing with history score B.
Issues
| Issue | Plaintiff's Argument (Dickey) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the sentencing court could look beyond the statutory elements of Dickey’s 1992 juvenile burglary adjudication to determine it was a person felony for enhancement purposes | District court impermissibly relied on record facts to classify the pre‑1993 adjudication as a person felony; Apprendi/Descamps forbid factfinding beyond the prior conviction itself | The court’s review of the PSI and worksheet was permissible; Dickey’s failure to object / affirmative acknowledgments invited the error | Court held Descamps controls: prior statute was indivisible and broader than current person‑burglary elements, so the court could not look beyond statutory elements; the 1992 adjudication cannot be counted as a person felony for enhancement and must be scored as nonperson (history B). |
| Whether Dickey may raise the Apprendi/Descamps claim for the first time on appeal | Claim is a pure legal question on admitted facts and determinative; exception to forfeiture applies (also Descamps decided while case pending) | Invited‑error doctrine / waiver because Dickey affirmed the worksheet and did not object at sentencing | Court permitted review: Apprendi/Descamps issues may be raised on appeal under exceptions (legal question on admitted facts; ends of justice), and invited‑error did not bar relief given the narrow, perfunctory nature of the acknowledgments. |
| Whether K.S.A. 2013 Supp. 21-6811(d) authorized the sentencing court to resolve dwelling status by factfinding | Even if statute requires dwelling comparison, Apprendi/Descamps limit the court to statutory elements of the prior adjudication, not factual inquiry | Statute assigns State burden by preponderance to prove dwelling; court may rely on PSI/records to satisfy statute | Court held statutory scheme does not overcome Apprendi/Descamps limits; because the prior statute lacked a dwelling element and was broader, it cannot serve as a person‑felony predicate. |
| Whether State v. Murdock requires a different result for pre‑1993 priors | N/A (Dickey distinguishes Murdock as addressing out‑of‑state priors) | State relied on Murdock precedent about pre‑1993 classification rules | Court distinguished Murdock as dealing with out‑of‑state priors and statutes; K.S.A. 21‑6811(d) specifically governs in‑state pre‑1993 burglaries, so Murdock’s holding did not control. |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (fact other than prior conviction that increases penalty beyond statutory maximum must be submitted to a jury and proved beyond a reasonable doubt)
- Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach applies only to divisible statutes; courts may not consult facts beyond statutory elements when prior statute is indivisible)
- Taylor v. United States, 495 U.S. 575 (1990) (formal categorical approach to determine whether prior conviction qualifies as predicate under ACCA)
- Shepard v. United States, 544 U.S. 13 (2005) (limits on sources sentencing court may consult under the modified categorical approach; plea colloquy and a narrow set of documents only)
- State v. Murdock, 299 Kan. 312 (2014) (classification rules for out‑of‑state and pre‑KSGA convictions; distinguished by the court here as inapplicable to in‑state burglary adjudication)
- Griffith v. Kentucky, 479 U.S. 314 (1987) (new constitutional rules apply to cases pending on direct review)