State v. Horselooking, 400 P.3d 189

Defendant Alvin P. Horselooking, Jr. pled no contest to aggravated battery and DUI (events Aug 19, 2015); PSI scored his criminal history as B based in part on a 2013 Kickapoo Nation conviction for residential burglary.
The Kickapoo Nation Tribal Code does not label offenses as "felonies" or "misdemeanors," though it distinguishes more/less serious crimes via penalties (including banishment).
District court, relying on Kansas Court of Appeals precedent, compared the tribal burglary to Kansas residential burglary (a person felony) and scored the tribal conviction as a felony.
Horselooking argued the tribal conviction should not be scored as a felony because the tribal code does not use felony/misdemeanor labels; alternatively it should be a misdemeanor or unscoreable.
The Court of Appeals majority rejected Hernandez/Lackey’s judicial gap‑filling approach, applied the rule of lenity because K.S.A. 2015 Supp. 21‑6811(e) is silent as to how to classify convictions from jurisdictions that do not distinguish felonies/misdemeanors, and held the tribal burglary must be scored as a misdemeanor (class A misdemeanor under the statute’s cross‑reference).
The court vacated Horselooking’s sentence and remanded for resentencing using the corrected criminal history score; a dissent would have treated the tribal burglary as felony‑equivalent based on the tribe’s punishment scheme (banishment, longer jail terms).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a tribal conviction from a jurisdiction that does not label crimes as felonies or misdemeanors must be classified by comparing to the most comparable Kansas offense	Horselooking: KSGA provides no mechanism; silence means conviction should be treated favorably to defendant (misdemeanor under rule of lenity)	State: Under Hernandez/Lackey, courts should compare to the most comparable Kansas crime; if comparable Kansas crime is a felony, count as a felony	Held: KSGA is silent on this gap; court declines to adopt Hernandez/Lackey gap‑filling; applies rule of lenity and classifies the tribal burglary as a misdemeanor (class A misdemeanor under statutory cross‑reference)

State v. Hernandez, 24 Kan. App. 2d 285 (Kan. Ct. App. 1997) (held sentencing court should compare to most comparable Kansas offense when convicting jurisdiction does not distinguish felonies/misdemeanors)
State v. Lackey, 45 Kan. App. 2d 257 (Kan. Ct. App. 2011) (followed Hernandez and applied comparable‑Kansas‑offense method to municipal convictions)
State v. Keel, 302 Kan. 560 (Kan. 2015) (explained when statute is silent courts must determine whether omission is a "silence gap" and often defer to legislature)
State v. Jordan, 303 Kan. 1017 (Kan. 2016) (rules on interpreting criminal statutes and applying rule of lenity)
State v. Kessler, 276 Kan. 202 (Kan. 2003) (statutory control over sentencing authority and limits on judicially supplying omissions)