State v. Luarks
360 P.3d 418
Kan.2015Background
- In 2011 Richard Luarks was convicted of aggravated battery; a PSI listed 18 priors including three pre-KSGA adult convictions characterized as person felonies: 1981 attempted rape, 1986 aggravated battery, and 1981 burglary of a residence.
- The district court scored Luarks in criminal-history category A (three or more adult person felonies) and sentenced him to 172 months; Luarks did not object to the score at sentencing.
- A Court of Appeals panel affirmed; this court granted review.
- Luarks challenged the district court’s classification of all three pre-KSGA convictions as person felonies and separately argued the burglary classification violated the Sixth Amendment because it rested on a judicial fact (that the burglary was of a dwelling) not proven to a jury.
- The State argued the KSGA requires pre-KSGA convictions be classified by comparison to post-KSGA statutes and that Luarks’ burglary admission showed it was a dwelling burglary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-KSGA convictions must be treated as "unclassified" (nonperson) under K.S.A. 2014 Supp. 21-6810(d)(6) | Luarks: pre-KSGA crimes were unclassified so should be treated as nonperson felonies | State: legislature intended all priors be classified and scored by comparing to post-KSGA statutes | Rejected Luarks; follow State v. Keel — classify priors by comparing prior statute to the comparable post-KSGA statute in effect when current crime occurred |
| Whether the 1981 burglary conviction could be classified as a person felony under K.S.A. 2014 Supp. 21-6811(d) without a jury finding that the structure was a "dwelling" | Luarks: classification relied on a judicial finding that the burglary was of a dwelling; that fact was not proven to a jury beyond a reasonable doubt, violating Apprendi/Descamps | State: Luarks’ admission to burgling a residence shows the prior was of a dwelling and supports person classification | Held for Luarks: under State v. Dickey (and Descamps/Apprendi), the burglary statute lacked a dwelling element, so judicial finding that it was a dwelling is a prohibited fact-finding; burglary must be treated as nonperson for scoring |
Key Cases Cited
- State v. Keel, 302 Kan. 560, 357 P.3d 251 (Kan. 2015) (pre-KSGA priors are classified by comparing to comparable post-KSGA statutes)
- State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (Kan. 2015) (prior burglary lacking dwelling element cannot be upgraded to person offense by judicial factfinding)
- State v. Cordell, 302 Kan. 531, 354 P.3d 1202 (Kan. 2015) (applying Dickey regarding burglary/dwelling issue)
- Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (sentencing court cannot rely on judicial factfinding to change classification when statute elements do not match)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (any fact other than prior conviction that increases punishment must be found by a jury)
Result: The court affirmed classification for attempted rape and aggravated battery, vacated Luarks’ sentence because the 1981 burglary must be treated as a nonperson offense for scoring, and remanded for resentencing.