STATE OF KANSAS, Appellee, v. DERRICK BUELL, Appellant.
No. 113,881
Court of Appeals of Kansas
June 24, 2016
377 P.3d 1174
Opinion filed June 24, 2016.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin
Before POWELL, P.J., ARNOLD-BURGER, J., and BURGESS,
POWELL, J.: Derrick Buell appeals from his sentences for robbery and attempted kidnapping, arguing the district court erred in classifying his 2002 Florida juvenile adjudications of burglary of a dwelling and burglary of a dwelling while armed as person offenses. Buell claims that by doing so, the district court violated his constitutional rights as articulated in Apprendi and Descamps. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2015, pursuant to a plea agreement, Buell pled guilty to robbery and attempted kidnapping. According to the presentence investigation report (PSI), Buell‘s criminal history included two 2002 Florida juvenile adjudications, one labeled as burglary of a dwelling and one labeled as burglary of a dwelling while armed. At his sentencing, Buell objected to the classification of the adjudication for burglary of a dwelling while armed as a person felony, arguing there was no comparable Kansas offense because of the different intent requirements of burglary in
Buell timely appeals.
DID THE DISTRICT COURT INCORRECTLY CLASSIFY BUELL‘S PRIOR FLORIDA JUVENILE ADJUDICATIONS WHEN CALCULATING BUELL‘S CRIMINAL HISTORY SCORE?
On appeal, Buell argues the district court erred in classifying both of his 2002 Florida burglary juvenile adjudications as person offenses. Specifically, Buell argues the district court had to make improper factual determinations in order to find these Florida burglaries comparable to Kansas’ burglary statute, violating his rights under the Sixth and Fourteenth Amendments to the United States Constitution as articulated by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). In response, the State makes a number of arguments: First, the issue is not properly preserved for appeal; second, Buell waived his right to a jury at sentencing and, therefore, there was no error in the district court‘s failure to submit any facts to a jury; and third, the district court did not err in calculating Buell‘s criminal history score. We will address each argument in turn.
A. Preservation
The State first argues the issue was not properly preserved for appeal because Buell‘s failure to object to the inclusion of his Florida adjudication for burglary of a dwelling in calculating his criminal history score was a de facto admission that the prior adjudication was comparable to Kansas’ burglary statute to make it a person felony.
The State is correct that, in general, a party‘s failure to raise an issue below precludes appellate review. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). However, the State‘s argument falls short for two reasons. First, Buell did object to the classification of his Florida adjudication for burglary of a dwelling while armed as a person felony before the district court; second, as to the other Florida adjudication, our Supreme Court has recently held that a “legal challenge to the classification of [a] prior burglary adjudication can be raised for the first time on appeal.” State v. Dickey, 301 Kan. 1018, 1021, 350 P.3d 1054 (2015). To this, the State argues that Dickey was wrongly decided. However, we are “duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position.” State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. 1012 (2015). As there is no such indication from our Supreme Court that it is departing from Dickey, we are bound to follow it. Therefore, Buell may raise this argument for the first time on appeal.
B. Waiver of Right to Jury at Sentencing
The State next argues that Buell waived his right to a jury trial at sentencing. Specifically, the State argues that because Buell waived his right to a jury trial, he also waived his right to have a jury determine the existence of facts beyond those to which he pled that increased his sentence. See State v. Williams, 259 Kan. 432, 436, 913 P.2d 587 (1996).
However, our Supreme Court has rejected this argument in the context of upward departure sentences. “[A] defendant‘s admission to each of the elements of the criminal offense in conjunction with a guilty plea ‘“is in no way an admission that the sentencing factors used to increase [his or her] sentence were proved beyond a reasonable doubt.“‘” State v. Horn, 291 Kan. 1, 10, 238 P.3d 238 (2010) (quoting State v. Cody, 272 Kan. 564, 565, 35 P.3d 800 [2001]). While a defendant may specifically waive the right to have a jury decide sentence-enhancing factors, “[a] waiver of the trial jury, standing alone, does not effectively waive the defendant‘s right to have a jury for the upward durational departure sentence proceeding.” 291 Kan. at 11. Accordingly, we reject the State‘s contention that Buell‘s jury trial waiver constituted a waiver of his right to require each fact used to enhance his sentence beyond the statutory maximum to be proven to a jury beyond a reasonable doubt.
C. Calculation of Criminal History Score
Having dispensed with the State‘s procedural roadblocks, we now turn to the merits of Buell‘s appeal: whether the district court improperly made findings of fact in order to classify Buell‘s prior Florida burglary adjudications as person felonies, thereby increasing his sentence beyond the statutory maximum. The question presented involves the interpretation of three statutes: (1)
Our analysis begins with the KSGA. The KSGA provides that criminal sentences are essentially based on two controlling factors: the criminal history of the defendant and the severity level of the crime committed, with person crimes having a greater impact. See
1. Classification of Buell‘s Florida burglary adjudications falls under K.S.A. 2015 Supp. 21-6811(e) .
Because Buell‘s 2002 Florida burglary juvenile adjudications are at issue, two sections of
“(1) Out-of-state convictions and juvenile adjudications shall be used in classifying the offender‘s criminal history.
“(2) An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction:
(A) If a crime is a felony in another state, it will be counted as a felony in Kansas.
. . . .
“(3) The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime.
“(4) Convictions or adjudications occurring within . . . other state systems . . . are considered out-of-state convictions or adjudications.
“(5) The facts required to classify out-of-state adult convictions and juvenile adjudications shall be established by the state by a preponderance of the evidence.”
Subsection (e) requires out-of-state convictions or adjudications to be used in calculating a defendant‘s criminal history score. Whether the out-of-state conviction or adjudication is to be classi-fied as a misdemeanor or felony depends upon the convicting jurisdiction. Then, the out-of-state conviction or adjudication must be classified as a person or nonperson crime, and this is done by referring to the comparable Kansas offense in effect at the time the defendant committed his underlying crime. If there is no comparable Kansas crime, then the out-of-state adjudication is scored as a nonperson offense.
2. Buell‘s Florida burglary adjudications are felonies.
In accordance with
3. Buell‘s Florida burglary adjudications are person crimes.
Having determined that both Florida adjudications are felonies, our next task is to classify them as person or nonperson. According to the KSGA, we do this by referring to the comparable Kansas offenses in effect at the time the current crime of conviction was committed.
With respect to the Florida burglary statute, our Supreme Court has already specifically answered the question of what Kansas crime is comparable: “Obviously, the comparable Kansas offense for a Florida burglary would be our version of burglary.” O‘Connor, 299 Kan. at 823. The Kansas burglary statute in effect at the time Buell committed his current crimes states in relevant part:
“(a) Burglary is, without authority, entering into or remaining within any:
(1) Dwelling, with intent to commit a felony, theft or sexual battery therein;
(2) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein; or
(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft or sexual battery therein.
. . . .
“(c)(1) Burglary as defined in:
(A) Subsection (a)(1) is a severity level 7, person felony;
(B) subsection (a)(2) is a severity level 7, nonperson felony;
(C) subsection (a)(3) is a severity level 9, nonperson felony.
(2) Aggravated burglary is a severity level 5, person felony.”
K.S.A. 2011 Supp. 21-5807 .
It appears Buell was adjudicated under
“(1)(a) . . . ‘burglary’ means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
. . . .
“(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:
. . . .
(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon[.]
. . . .
“(3) Burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:
(a) Dwelling, and there is another person in the dwelling at the time the offender enters or remains.
(b) Dwelling, and there is not another person in the dwelling at the time the offender enters or remains.”
However, Buell contends that the Kansas burglary statute is not comparable. Ignoring O‘Connor and relying instead on Apprendi and Descamps, he argues the Florida burglary statute is not comparable as it criminalizes a broader range of conduct than the Kansas burglary statute because the intent required to commit burglary in Florida is broader than in Kansas. The Florida statute criminalizes conduct in which a person enters into or remains in a dwelling with the intent to commit an offense therein, whereas the Kansas burglary statute criminalizes conduct in which a person enters into or remains within a dwelling with the intent to commit a felony, theft, or sexual battery.
“Under Apprendi, ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ 530 U.S. at 490. The policy rationale behind Apprendi is that a court violates the United States Constitution if it invades the jury‘s territory by finding facts at sentencing. See Shepard v. United States, 544 U.S. 13, 25, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (plurality opinion) (‘[T]he Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury‘s finding of any disputed fact essential to increase the ceiling of a potential sentence.‘). A narrow exception exists for judicial factfinding regarding the existence of a prior conviction because of the procedural safeguards which attach to such a fact. Apprendi, 530 U.S. at 488. As a result, in the typical case under our sentencing guidelines, tabulating a defendant‘s prior convictions to determine the criminal history score, which usually has the effect of increasing a defendant‘s sentence, does not violate a defendant‘s jury trial rights. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002).” Dickey, 301 Kan. at 1036.
Buell correctly points out that when the district court is required to rely on facts outside of the mere fact of a prior conviction, then Apprendi is implicated. In Descamps, 133 S. Ct. 2276, the United States Supreme Court held that a defendant‘s prior conviction for burglary under California law could not be counted as a predicate offense for burglary under the federal Armed Career Criminal Act (ACCA), which increases the sentences of defendants who have three prior convictions for violent felonies. Unlike the ACCA‘s “general burglary” definition, the California burglary statute at issue did not require unlawful entry as do most burglary laws; it provided that a “person who enters” certain locations “with intent to commit grand or petit larceny or any felony is guilty of burglary.”
To determine whether a prior conviction qualified as a sentence enhancer under the ACCA, the Descamps Court held that a sentencing court must use one of two approaches—the categorical approach or the modified categorical approach. 133 S. Ct. at 2281-84, 2287; see also Dickey, 301 Kan. at 1036-39 (detailed discussion of categorical versus modified categorical approaches). Under the categorical approach, the sentencing court is to simply “compare the elements of the statute forming the basis of the defendant‘s conviction with the elements of the ‘generic’ crime.” 133 S. Ct. at 2281. If the elements of the prior conviction are the same as or narrower than the elements of the corresponding crime under the ACCA, then the prior conviction may be counted as a predicate offense for sentence enhancement purposes under the ACCA. 133 S. Ct. at 2281, 2283.
The modified categorical approach applies when the statute defining the elements of the prior offense in state law is broader than the corresponding generic offense as defined in the ACCA. Descamps, 133 S. Ct. at 2281, 2283-84. However, this approach may only be utilized when the prior conviction involves a “divisible statute,” meaning a statute which comprises multiple, alternative versions of the crime, at least one of which matches the elements of the generic offense. 133 S. Ct. at 2281-82, 2284-85. In such an instance, the sentencing court is permitted to look beyond the elements in the statutes and examine limited extra-statutory materials to determine “which of a [prior] statute‘s alternative elements formed the basis of the defendant‘s prior conviction.” Descamps, 133 S. Ct. at 2284. Such extra-statutory materials include charging documents, plea agreements, jury
Our Supreme Court in Dickey, a case which involved how to properly score a pre-KSGA Kansas burglary as either a person or nonperson crime, explicitly adopted the Descamps categorical/modified categorical approach in “determining whether a prior burglary conviction should be classified as a person or nonperson felony under the KSGA.” 301 Kan. at 1039. The court ultimately held that although the pre-KSGA Kansas burglary statute under which Dickey had previously been convicted was divisible, as it had “multiple, alternative versions of the crime, none included an element requiring that the structure burglarized be a dwelling.” 301 Kan. at 1039. Therefore, it was constitutionally impermissible to classify Dickey‘s prior burglary adjudication as a person crime because to do so would have required judicial factfinding beyond merely identifying the statutory elements. 301 Kan. at 1039-40.
In our view, Buell‘s reliance on Descamps and its categorical/modified categorical approach is inapplicable for the reasons he states. First, under the KSGA, there need not be matching ele-ments for an out-of-state offense to be comparable to a Kansas offense. Williams, 299 Kan. at 873. Our Supreme Court‘s holding in O‘Connor, 299 Kan. at 823, reflects that the comparability between the Florida definition of burglary and the Kansas definition of burglary is obvious despite their differing elements. Moreover in Williams, the defendant made an argument similar to the one Buell makes before us: because Ohio‘s burglary statute did not require the same specificity of intent as the Kansas burglary statute, they were not comparable. Our Supreme Court rejected this argument, holding that in determining the comparability of an out-of-state offense with a Kansas offense, there need not be a review “of the identicalness of the elements of the crimes identified in the out-of-state and in-state statutes.” 299 Kan. at 875. While it is true that O‘Connor and Williams predate Dickey, it is significant in our view that Dickey did not overrule O‘Connor or Williams, nor did it reject the long-standing comparability approach utilized in these cases. See 301 Kan. at 1039; State v. Moore, 52 Kan. App. 2d 799, 814, 377 P.3d 1162 (2016), (Dickey did not adopt “identical or narrower rule” because doing so would have required overruling prior caselaw establishing that comparable offenses do not have to be identical).
The requirement that crimes merely be comparable differs from the federal ACCA, which “intended that the enhancement provision be triggered by crimes having certain specified elements, not by crimes that happened to be labeled ‘robbery’ or ‘burglary’ by the laws of the State of conviction.” Taylor v. United States, 495 U.S. 575, 588, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990). In fact, we observe that the categorical approach existed before Apprendi and was created by the federal courts to apply the enhancement provisions in the ACCA. 495 U.S. at 588. Only later was this approach, and its modified version, recognized as suitable to prevent Apprendi violations. Descamps, 133 S. Ct. at 2288. That difference is exposed in the present case because without any impermissible judicial factfinding and in accordance with
Second, the Descamps rubric is not applicable because intent is irrelevant in the next step of the KSGA analysis. Remember that under Apprendi, 530 U.S. at 490, it is impermissible to rely on a fact that has not been proven to enhance a defendant‘s punishment beyond the statutory maximum. See State v. Gould, 271 Kan. 394, 411, 23 P.3d 801 (2001) (maximum punishment is that authorized by jury‘s verdict). It is undisputed that Buell‘s Florida burglary adjudications were felonies. As the lowest form of a felony under the KSGA is a nonperson felony (noncomparable out-of-state felonies are nonperson
The only way to enhance Buell‘s punishment is to classify his Florida burglaries as person felonies because having two person felonies in his criminal history increases Buell‘s criminal history score, thereby increasing the sentencing range for his crimes. Disregarding aggravated burglary, in Kansas only one element separates a person felony burglary from a nonperson felony burglary—whether the burglary was committed in a dwelling.
Therefore, contrary to Buell‘s argument and consistent with Dickey, use of the modified categorical approach as described in Descamps is required when examining whether a dwelling was involved in Buell‘s Florida burglary convictions in order to prevent any improper judicial factfinding. See Dickey, 301 Kan. at 1039. However, unlike the burglary statute forming the basis for Dickey‘s prior juvenile burglary adjudication which did not contain an element requiring the structure burglarized to be a dwelling, Flori-da‘s burglary statute is divisible, and the provisions under which Buell was convicted do contain alternative elements which include burglarizing a dwelling. See 301 Kan. at 1039;
Affirmed.