360 P.3d 1107
Kan. Ct. App.2015Background
- Mullens pled no contest (per plea agreement) to aggravated escape and was sentenced to 18 months plus postrelease supervision; his PSI listed a 2003 Texas juvenile adjudication for "Burglary of Habitation" classified as a Kansas "person" felony for criminal-history scoring.
- At sentencing Mullens and counsel reviewed and accepted the PSI as accurate; he did not object to the burglary classification in district court but timely appealed after sentencing.
- Kansas law (K.S.A. 2014 Supp. 21-6811(d)) requires burglary adjudications to be scored as person felonies if they correspond to K.S.A. 21-5807(a)(1) (dwelling + intent to commit felony, theft, or sexually motivated crime); the State must establish facts for classification by a preponderance of the evidence.
- Mullens argued on appeal that the Texas burglary statute is broader because it allows culpability based on intent to commit an assault (which can be a misdemeanor), so his Texas adjudication might not match the Kansas person felony definition; he contends the district court impermissibly made factual findings about the prior adjudication in violation of Apprendi/Descamps.
- The court found the Texas statute divisible and therefore required application of the modified categorical approach (per Descamps/Dickey) — the sentencing court should have examined limited documents (charging papers, plea colloquy, etc.) to identify which statutory alternative formed the basis of the Texas adjudication.
- Because the district court made an implicit factual finding classifying the Texas adjudication as a Kansas person felony without reviewing permissible documents, the appellate court vacated the sentence and remanded for resentencing with directions to inspect the authorized documents to determine classification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mullens may raise a legal challenge to the prior-adjudication classification for the first time on appeal | Mullens: Dickey allows raising a legal challenge on appeal under K.S.A. 22-3504(1) | State: Failure to object in district court amounted to a stipulation, barring review or relieving State of proof burden | Court: Mullens may raise the issue on appeal; Dickey controls and precludes State's stipulation argument |
| Whether the sentencing court erred by classifying the Texas burglary as a person felony without examining permissible documents, implicating Apprendi/Descamps | Mullens: Texas statute is divisible and could encompass misdemeanor-assault-based burglary that does not correspond to Kansas person burglary; district court impermissibly made factual findings without using the modified categorical approach | State: The statutes are comparable as a matter of law and no factual inquiry was required; Mullens’ acceptance of the PSI amounted to stipulation | Court: Texas statute is divisible; sentencing court should have used the modified categorical approach and examined authorized documents. Failure to do so was error; vacated and remanded for document review and resentencing |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (establishes that facts increasing punishment beyond statutory maximum must be proved to a jury beyond a reasonable doubt)
- Descamps v. United States, 570 U.S. 254 (requires categorical/modified categorical analysis for determining whether prior conviction matches generic offense)
- State v. Dickey, 301 Kan. 1018 (Kan. 2015) (applies Descamps in Kansas and permits raising classification challenges on direct appeal; identifies permissible documents for modified categorical inquiry)
- State v. Keel, 302 Kan. 560 (Kan. 2015) (statutory interpretation is reviewed de novo)