State v. Fahnert, 115058

Defendant Lee Fahnert pled guilty (June 26, 2015) to attempted theft with two or more priors (nonperson severity level 10). A PSI classified his 2007 Missouri burglary conviction as a prior person felony, contributing to a criminal-history score of B.
Fahnert objected, arguing the Missouri conviction was for burglary of a non-dwelling and thus should be a nonperson felony under Kansas law; he asked for time to file a written objection. The court granted a continuance.
The State submitted Missouri conviction documents asserting the prior was burglary of a residence; the district court reviewed those documents, overruled the objection, and sentenced Fahnert to 10 months imprisonment.
The legal dispute centered on whether the sentencing court could look beyond statutory elements to underlying plea documents to classify the out-of-state burglary as a Kansas "person" burglary (dwelling) without violating Apprendi/Descamps.
The court analyzed K.S.A. 2016 Supp. 21-6811(e) (classification of out-of-state convictions) and K.S.A. 2016 Supp. 21-6811(d) (classification of prior burglary convictions), and applied the categorical/modified categorical frameworks from Descamps, Mathis, and Kansas precedent in Dickey.

Issue	Plaintiff's Argument (Fahnert)	Defendant's Argument (State)	Held
Whether the district court properly classified the 2007 Missouri burglary as a person felony by consulting plea/conviction documents to find it was a burglary of a dwelling	Missouri statute lacks a "dwelling" element; court impermissibly relied on facts beyond statutory elements, violating Apprendi/Descamps	Court may use documents to determine which alternative element applied (modified categorical approach) and the Missouri conviction was for a residence	Court held the sentencing court erred: it improperly engaged in judicial factfinding beyond statutory elements; prior Missouri burglary must be classified as nonperson felony; sentence vacated and remanded for resentencing
Whether K.S.A. 21-6811(d) (burglary-specific test) or 21-6811(e) (out-of-state comparability test) governs classification of an out-of-state burglary	Apply 21-6811(e): require comparability of statutory elements; if not comparable, classify as nonperson	Apply 21-6811(d): focus only on whether prior burglary involved a dwelling	Court held 21-6811(e) governs when the prior offense is both out-of-state and a burglary, so comparability (elements-only) controls

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 jury)
Descamps v. United States, 570 U.S. 254 (2013) (categorical and modified categorical approaches; courts must compare statutory elements, not underlying facts)
Mathis v. United States, 136 S. Ct. 2243 (2016) (modified categorical approach applies only to divisible statutes listing alternative elements; listed means do not create separable elements)
State v. Dickey, 301 Kan. 1018 (2015) (Kansas adoption of Descamps principles; sentencing factfinding beyond existence/elements of prior conviction implicates Apprendi)