State v. Dickey
301 Kan. 1018
| Kan. | 2015Background
- Defendant Jeff Dickey pled guilty to felony theft (2013). A presentence investigation (PSI) assigned him criminal history category A based on three person felonies, including a 1992 Kansas juvenile burglary adjudication.
- The 1992 burglary statute did not distinguish dwelling vs. non‑dwelling; the KSGA (post‑1993) classifies prior burglaries as person felonies only if they involved a "dwelling."
- Dickey did not object at sentencing to the PSI or criminal history score and affirmatively answered that he agreed with the A score. He later appealed, arguing the person‑felony classification violated Apprendi/Descamps.
- The Court of Appeals vacated the 16‑month sentence, holding classifying the 1992 adjudication as a person felony required impermissible judicial factfinding under Descamps/Apprendi and that Murdock did not control.
- The Kansas Supreme Court granted review and affirmed: legal challenge to classification may be raised on appeal under K.S.A. 22‑3504(1); K.S.A. 2014 Supp. 21‑6811(d) cannot be applied to count the 1992 adjudication as a person felony without unconstitutional factfinding, so the adjudication must be scored as nonperson for resentencing.
Issues
| Issue | Plaintiff's Argument (Dickey) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Dickey waived appellate review by failing to object/stipulating to criminal history at sentencing | Issue implicates Apprendi/constitutional right; may be raised first on appeal under K.S.A. 22‑3504(1) and appellate jurisdiction statute | Stipulation/ failure to object invites error and bars appellate challenge | Court: No waiver for pure legal challenge to classification; K.S.A. 22‑3504(1) allows raising illegal‑sentence claim on appeal; prior contrary caselaw overruled where inconsistent |
| Whether Murdock applies to classify Dickey’s pre‑KSGA in‑state burglary adjudication | Murdock should not be applied to in‑state pre‑KSGA burglaries governed by K.S.A. 2014 Supp. 21‑6811(d) | State asserted Murdock reasoning distinguishes pre‑KSGA crimes; urged applicability | Court: Murdock (about pre‑KSGA out‑of‑state crimes) is inapplicable; K.S.A. 21‑6811(d) controls in‑state burglary classification |
| Whether Descamps/Apprendi prohibit classifying a pre‑KSGA burglary as a person felony when statute lacks dwelling element | Classifying as person felony would require judicial factfinding beyond the prior‑conviction fact, violating Apprendi/Descamps | State argued Descamps only addresses federal ACCA context and is inapplicable; contended facts could be proven at sentencing (preponderance) | Court: Descamps/Apprendi apply; because 1991 statute lacked a dwelling element, classifying as person felony would require impermissible factfinding—must be scored nonperson |
| Remedy and disposition | Vacate sentence and remand for resentencing with burglary scored nonperson | Opposed to vacatur based on waiver/Descamps inapplicability | Court: Vacate sentence and remand; instruct district court to score 1992 adjudication as nonperson felony |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (categorical/modified categorical rules limit judicial factfinding when assessing prior convictions for enhancement)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact other than prior conviction that increases penalty beyond statutory maximum must be submitted to a jury)
- State v. Murdock, 299 Kan. 312 (2014) (pre‑KSGA out‑of‑state crimes must be classified as nonperson offenses)
- State v. Neal, 292 Kan. 625 (2011) (illegal‑sentence vehicle allows appellate consideration of criminal history classification even if not objected to at sentencing)
- State v. Weber, 297 Kan. 805 (2013) (defendant bound by counsel’s factual stipulation to convictions but legal effect of convictions for enhancement is for the court to decide)