Lead Opinion
Jeff Dickey appeals from the sentence imposed by the district court after he pled guilty to one count of felony theft. Relying on Apprendi v. New Jersey,
Facts
On December 7, 2012, Dickey was charged with felony theft in Saline County, Kansas. Dickey pled guilty to the charge on April 9, 2013. A hearing was held on May 16, 2013, to consider sentencing on the theft conviction and whether to revoke Dickey’s probation in four other cases. A presentence investigation (PSI) report was prepared prior to the hearing. Attached to the PSI was a criminal history worksheet, which reflected that Dickey had 55 prior offenses, including 3 person felonies, 12 nonperson felonies, and 40 nonperson misdemeanors. The individual who prepared tire PSI designated Dickey’s criminal histoiy as category A based on a finding that Dickey had three adult prior convictions or juvenile adjudications for person felonies. See K.S.A. 2013 Supp. 21-6809 (offender falls into criminal history category A when offender’s criminal histoiy includes three or more adult convictions or juvenile adjudications for person felonies, in any combination). One of the three offenses scored as a person felony in Dickey’s criminal histoiy was a juvenile adjudication for burglary committed in October 1992, which was before the legislature enacted the Kansas Sentencing Guidelines Act (KSGA).
At the sentencing hearing, Dickey responded affirmatively when the court asked whether he had reviewed his criminal history and responded negatively when the court subsequently asked whether he had an objection to any of the convictions listed. During testimony elicited on direct examination by his attorney in support of Dickey’s motion for a downward departure sentence, Dickey said he understood he had been placed in the criminal history category of A. After hearing the testimony and tire arguments of counsel, the district court denied Dickey’s motion for downward departure and sentenced Dickey to 16 months’ imprisonment, to run consecutive to his sentences in the four other criminal cases in which his probation was revoked.
Analysis
At issue is whether Dickey was deprived of his constitutional rights when the sentencing court counted his 1992 juvenile adjudication for burglary as a person felony for criminal history purposes to enhance his current sentence beyond the maximum authorized by law. The right to appeal from the district court’s decision on this issue is specifically authorized by K.S.A. 2013 Supp. 21-6820(e)(3), which provides appellate courts with jurisdiction to consider a defendant’s claim that the sentencing court erred “in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.”
We note, as a preliminary matter, that Dickey raises this claim for the first time on appeal. Although our Supreme Court has held that constitutional issues generally cannot be raised for the first time on appeal, the court has recognized exceptions when:
“ ‘(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.’ [Citations omitted.]” State v. Gomez,290 Kan. 858 , 862,235 P.3d 1203 (2010).
Two exceptions apply in this case. First, the claim of error asserted involves only a question of law on undisputed facts and is determinative of the case. See State v. Conley,
Second, consideration of issues implicating Apprendi generally are necessaiy to serve the ends of justice. See Conley,
Standard of review
The issue presented in this case requires us to interpret several different Kansas statutes. Interpretation of a statute is a question of law over which appellate courts have unlimited review. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. State v. Murdock,
State v. Murdock
In considering whether the sentencing court improperly scored Dickey’s criminal history based on misclassification of the pre-KSGA burglary adjudication in Kansas as a person felony, we are mindful that our Supreme Court recently issued an opinion in Murdock addressing a similar claim, albeit in the context of an out-of-state offense and the crime of robbery instead of burglaiy. This factual distinction is significant, as the court itself demonstrated by beginning its analysis with K.S.A. 21-4711(e), which, before recod-ification of the criminal code, governed the classification of out-of-state crimes and convictions.
“The state of Kansas shall classify the [prior out-of-state] crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.” K.S.A. 21-4711(e).
See K.S.A. 2013 Supp. 21-6811(e) (same).
The court easily found Murdock’s prior out-of-state robbery convictions were comparable to the Kansas crime of robbery. The more difficult question was whether the sentencing court was required to compare Murdock’s out-of-state robbery offenses to robbery under the version of the Kansas statute in effect at the time the prior crimes were committed or to robbery under the current version of the Kansas statute. In answering this question, the court found indistinguishable its earlier analysis in State v. Williams,
Applying that rule, the court proceeded to compare Murdock’s prior out-of-state robbery convictions to robbery as defined in K.S.A. 21-3426 (Ensley 1981) to classify the convictions as person or nonperson for purposes of calculating his criminal history. But the penalty provision of the pre-1993 statute did not designate robbery as person or nonperson, instead classifying it only as a class C felony. In the absence of such a designation, Murdock argued his prior out-of-state convictions necessarily had to be scored as nonperson offenses under K.S.A. 21-4710(d)(8), which provided that “[ujnless otherwise provided by law, unclassified felonies and misdemeanors, shall be considered and scored as nonperson crimes for the purpose of determining criminal history.” See K.S.A. 2013 Supp. 21-6810(d)(6) (same). Although the court specifically rejected Murdock’s suggestion that K.S.A. 21-4710(d)(8) provided a mechanism to draw a distinction between current sentencing statutes and the pre-1993 criminal statutes, the majority nevertheless held, as a matter of law,«that all pre-1993 out-of-state convictions must be scored as nonperson offenses based on controlling precedent in Williams. Three of the justices in Murdock dissented from that part of tire majority’s holding that required all out-of-state crimes committed prior to 1993 be classified as nonperson offenses. Although limited to out-of-state convictions, the dissent expressed concern that “all in-state convictions prior to 1993, regardless of how violent or heinous, appear to be subject to the same outcome” because the majority’s decision was based on the court’s prior holding in Williams as controlling precedent on the issue. Murdock,
Based on our review of the opinion and the analysis upon which the holding is based, the court in Murdock appears to have considered and resolved two separate and distinct issues before reaching its final decision. First, the court extended its prior holding in Williams to conclude as a matter of law that when classifying a prior out-of-state conviction as person or nonperson, a prior out-of-state crime — whether committed before or after Kansas adopted the KSGA — must be compared to the comparable offense under the Kansas statute in effect at the time the prior out-of-state crime was committed. Murdock,
Significantly, both of the issues considered in Murdock were resolved by the court in the context of a prior out-of-state conviction for tire crime of robbery. Conversely, this case presents a prior adjudication for the crime of burglary committed in Kansas. Given these distinctions, our first task is to determine whether the holding announced by the court in Murdock on either one of tírese issues applies to this case..
We first examine tire court’s holding that any prior conviction for an out-of-state crime must be compared to the comparable offense under the Kansas statute in effect at the time the prior out-of-state crime was committed. The stated rationale by the court for this holding was (1) the lack of statutory guidance
“In the absence of a statutoiy directive, we are left with our decision in Williams that the comparable Kansas offense should be determined as of the date the out-of-state offenses were committed. Even though the State seeks a different rule in this appeal, we must emphasize we adopted the current rule at the State’s urging in Williams. See291 Kan. at 559 (State argued this court should score the Washington offenses according to their Kansas equivalents when the Washington offenses were committed).
“Our analysis in Williams is indistinguishable from the analysis applicable to the circumstances presented here, and tire same policy considerations continue to apply. Using tire date the prior out-of-state crime was committed to calculate a defendant’s criminal history score is ‘consistent with our fundamental rule of sentencing for a current in-state crime: sentencing in accordance with tire penalty provisions in effect at tire time the crime was committed.’291 Kan. at 560 . Moreover, fixing the penalty parameters as of tire date the crime was committed is fair, logical, and easy to apply.291 Kan. at 560 .” Murdock, 299 at 317-18.
Again, we find it significant that the statute to which the Mur-dock court refers as failing to provide necessary guidance is K.S.A. 21-4711(e), which applies only to classification of prior out-of-state crimes, while the case here does not involve a prior out-of-state crime. The facts here present a prior adjudication for the crime of burglaiy committed in Kansas. Thus, unlike the absence of statutory guidance as in Murdock, the applicable statute here specifically provides that a past burglary adjudication occurring prior to July 1, 1993, should be scored for criminal history purposes in the current case:
(1) as a prior person felony if the prior adjudication would be classified under the current statute as tire burglary of a dwelling; and
(2) as a prior nonperson felony if the prior adjudication would be classified under the current statute as the burglary of a nondwelling. K.S.A. 2013 Supp. 21-6811(d) (formerly K.S.A. 21-4711[d]).
Given the specific type of offense committed by Dickey in 1992 was a burglary adjudication, we are bound by the statutory provision set forth above governing the manner in which a criminal history score must be calculated for a burglary adjudication occurring prior to July 1, 1993. Pursuant to K.S.A. 2013 Supp. 21-6811(d), we conclude that Dickeys prior burglary adjudication must be compared to the current version of the burglary statute in considering whether it should be scored as a person or nonperson crime in his criminal history and expressly decline to rely on the holding in Murdock in coming to that conclusion.
We now move on to examine the second and seemingly more divisive issue decided in Murdock: that all prior out-of-state convictions committed before Kansas adopted the KSGA must be scored as nonperson offenses. Like the first issue, the rationale given by the majority of the members of the court for this holding was (1) the absence of a statutory mechanism to determine whether a pre-KSGA conviction should be scored as a person or nonperson crime for criminal histoiy purposes and (2) the analysis it conducted under similar facts in Williams.
“We hold that Murdock’s two prior out-of-state convictions must be scored as nonperson offenses under K.S.A. 21-4710(d)(8) following our controlling Williams precedent. We recognize this rule results in the classification of all pre-1993 crimes as nonperson felonies — an outcome the State characterizes as unreasonable. But the solution to the State’s complaint sits with the legislature.
“As noted above, tire legislature enacted K.S.A. 21-4724(c)(l), instructing the Department of Corrections to recalculate certain inmates’ criminal history classifications ‘as if tire [prior] crime were committed on or after July 1, 1993.’ The legislature can amend the KSGA to address this issue as well if it deems an amendment appropriate.” Murdock,299 Kan. at 319 .
Based on the statutory framework in Kansas for classifying an offender’s criminal history as set forth above, it is clear that the legislature intended to create a separate and distinct rule to govern classification when the prior conviction or adjudication was committed out of state. See K.S.A. 2013 Supp. 21-6811(e). And the court’s rationale in Murdock was based on statutory interpretation of the legislative mandate in that subsection of the statute and the absence of any other applicable legislature mandates in the statutory framework as a whole. Conversely, the issue here is governed by K.S.A. 2013 Supp. 21-6811(d), a subsection of the statute that governs classification when the prior offense was burglary, because Dickey’s pre-KSGA adjudication was for a burglary that was committed in Kansas. Because both the legal analysis and the holding in Murdock are firmly tethered to the text of K.S.A. 21-4711(e) and the absence of any other applicable legislature mandate, neither the analysis nor the holding in Murdock apply to the issue presented in this case.
Classifying Dickey’s 1992 adjudication for burglary
At the time of Dickey’s 1992 adjudication, burglary was defined as
“knowingly and without authority entering into or remaining within any: (1) Building, manufactured home, mobile home, tent or other structure, with intent to commit a felony or theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.
“Burglary as described in subsection (1) is a class D felony. Burglary as described in subsection (2) is a class E felony.” K.S.A. 1991 Supp. 21-3715.
In 1993, the legislature adopted the KSGA, which classified burglaries as either person or nonperson crimes. Also in 1993, K.S.A. 21-3715 reclassified burglaries of dwellings as person felonies, while other burglaries were nonperson felonies. See K.S.A. 21-3715 (Furse 1995); L. 1993, ch. 291, sec. 74. As we noted in the preceding section, the sentencing statute in effect when Dickey committed the current offense, however, provides that a past burglary adjudication occurring prior to July 1,1993, should be scored for criminal history purposes:
(1) as a prior person felony if the prior adjudication would be classified under the current statute as the burglary of a dwelling; and
(2) as a prior nonperson felony if the prior adjudication would be classified under the current statute as the burglary of a nondwelling. K.S.A. 2013 Supp. 21-6811(d).
The statute also provides that the State has the burden to establish by a preponderance of the evidence the facts necessary for the court to determine how the prior adjudication would be classified under the current statute. K.S.A. 2013 Supp. 21-6811(d).
Given this statutory language, it might appear as if the question presented on appeal — whether the sentencing court erred in counting Dickey s prior juvenile adjudication for burglary as a person felony and enhancing his sentence — can be answered by deciding whether the State established by a preponderance of the evidence that the 1992 juvenile adjudication for burglary involved a dwelling. But that is not the claim of error asserted by Dickey here. See Apprendi v. New Jersey,
Based on the manner in which Dickey has framed the issue and the cases he relies on in support thereof, the question of whether the 1992 burglary actually involved a dwelling is irrelevant. Instead, the relevant question is whether the sentencing court was constitutionally permitted to go beyond the fact that Dickey had a prior adjudication for burglary in 1992 to determine that Dickey s prior adjudication for burglary qualified as a person felony and then to use that determination to enhance his current sentence. In order to answer that question, we must apply the analysis set forth by the United States Supreme Court in Descamps v. United States, 570 U.S_,
In Descamps, the Government sought to use the defendant’s prior burglary conviction in California to increase his current sentence under the federal Armed Career Criminal Act (ACCA), a sentence enhancement statute based on prior convictions that is similar to California’s three strikes law. See 18 U.S.C. § 924(e) (2012); Cal. Penal Code § 667(b-i) (West 2010); Cal. Penal Code § 1170.12(a)-(d) (West 2010). Unlike the definition for generic burglary under the ACCA, the California burglary statute in effect at die time of the defendant’s prior burglary conviction did not require that there be an unlawful entry; therefore, the definition in the California statute was much broader than the ACCA definition of burglary. See Cal. Penal Code § 459 (West 2010). In order to resolve a federal circuit court split on whether the sentencing court could look beyond the elements of a prior statutory conviction when the prior statute of conviction contains a single and “indivisible” set of elements that is broader than the elements in the corresponding offense as set forth in the ACCA, die Court granted certiorari. : ■
The Descamps Court began its analysis by reviewing its earlier decisions resolving issues similar to, but distinct from, the one presented. The first of those decisions was Taylor v. United States,
But the Taylor Court disagreed, concluding instead that the proper inquiry for a sentencing court in this situation is not whether the defendant’s actual conduct constituted a crime of violence (e.g., whether he, in fact, brought a gun, confronted any individuals inside the house, or conducted his crime in any particularly “violent” way) but whether the elements of the crime of conviction necessarily matched the elements of the corresponding crime under the ACCA. For purposes of determining if such a match existed, tire Court generically defined burglary under the ACCA as “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”
The Taylor decision went on to acknowledge, however, a “narrow range of cases” in which the sentencing court may look beyond the elements of a prior conviction to examine the charging papers and jury instructions to determine whether the prior conviction constitutes a predicate offense under the ACCA.
In Shepard v. United States,
The Court then addressed dre issue presented by tire divisible nature of the Massachusetts burglary statute. Because the burglary statute encompassed “boats and cars” as well as buildings, it was impossible to tell from the statutory elements of the crime of conviction upon which of these alternative offenses Shepard’s conviction was based. The Government argued that the sentencing court should be able to look to tire facts in the police reports or complaint applications to determine whether Shepard’s convictions fell within the generic ACCA definition of burglary. But the Supreme Court was not persuaded by this argument, holding instead that the sentencing court is'“generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” to determine if the defendant had pleaded guilty to entering a building or, alternatively, a car or boat. Shepard,
Authored by Justice Souter, the majority in Shepard based its holding on the statutory framework of the ACCA. In Part III of the opinion, however, Justice Souter reasoned that the rationale for placing limits on the sentencing court in looking beyond the prior statutory conviction for purposes of sentencing enhancement, while focusing on the ACCA, likewise implicates the Sixth Amendment jury trial concerns expressed in Apprendi. Shepard,
The Supreme Court’s most recent opinion discussing application of the categorical approach and its “modified” counterpart is Des-camps. Like the defendants in Taylor and Shepard, Descamps was convicted of being a felon in possession of a firearm and the Government sought to enhance his sentence based on a prior conviction for burglaiy. Arguing the categorical approach was applicable, Descamps maintained die sentencing court could not count his prior burglary conviction as a predicate offense under the ACCA because the California statute under which he pleaded guilty was broader than the corresponding generic offense under the ACCA in that it did not require an unlawful entry and was not divisible in any way. Not persuaded by Descamps’ argument, the district court determined the modified categorical approach was appropriate. After reviewing the record of the plea colloquy, the district court determined Descamps admitted the elements of a generic burglary when entering his plea based on the prosecutor s proffer that the crime “ ‘ “involve[d] the breaking and entering of a grocery store” ’ ” and Descamps’ subsequent failure to object to that statement.
Applying the same analysis as in Taylor and Shepard, the Supreme Court reversed the decision of the district court. Descamps,
There are two important aspects of the Descamps decision that stand out. The first is that the modified categorical approach can be applied only when dealing with a divisible statute drat “sets out one or more elements of the offense in the alternative.”
The second is that application of the modified categorical approach must only “focus on the elements, rather than the facts, of a crime.”
Utilizing the legal principles dictated by Descamps, we begin by examining the pre-1993 burglary statute under which Dickey was adjudicated in order to determine whether the categorical approach or the
In this case, the burglaiy statute forming the basis for Dickey s prior juvenile adjudication was comprised of multiple, alternative versions of the crime but none included an element relating to whether the structure was a dwelling:
“Burglary is knowingly and without authority entering into or remaining within any: (1) Building, manufactured home, mobile home, tent or other structure, with intent to commit a felony or theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.
“Burglary as described in subsection (1) is a class D felony. Burglary as described in subsection (2) is a class E felony.” K.S.A. 1991 Supp. 21-3715.
Because none of the alternatives in the prior version of the statute include any element relating to whether the structure was a dwelling, the sentencing court was permitted to engage in only a categorical comparison of the prior and current burglary statutes to determine whether to use the prior adjudication to increase Dickey s current sentence. Under that approach, we compare only the elements of the burglary statute forming the basis of the defendant’s prior conviction or adjudication and the elements of the generic offense, which in this case is the current version of the burglary statute. The prior conviction or adjudication will qualify as a predicate crime for sentence enhancement purposes under the categorical approach only if the elements of the prior statute “are the same as, or narrower than, those of the generic offense.” Descamps,
The “generic” offense is found within K.S.A. 2013 Supp. 21-5807(a)(1), which sets forth the current elements of burglary, a person felony, as “without authority, entering into or remaining within any [d]welling, with intent to commit a felony, theft or sexually motivated crime therein.” (Emphasis added.) The crucial element triggering the classification of the generic offense as a person felony is that the structure burglarized “is a dwelling.” In comparing the 1991 version with the current one, it is clear that the prior version of the burglary statute under which Dickey was adjudicated did not include any element relating to whether the structure was a dwelling. See K.S.A. 1991 Supp. 21-3715. Because the elements in the statute criminalizing Dickey s prior adjudication sweep more broadly than the elements in the current burglary statute, we can categorically say that Dickey’s prior adjudication for burglary would not have involved a dwelling and thus would not have been a person felony under the current burglary statute. See K.S.A. 2013 Supp. 21-6811(d).
Based on this analysis, the sentencing court erred in invoking the modified categorical approach to look behind Dickey’s conviction in search of record evidence to determine whether Dickey’s prior adjudication involved a dwelling, which in turn would
Before moving on to the final issue of invited error, we find it essential to our decision today that the United States Supreme Court adopted as a majority in Descamps what it had supported as a plurality in Shepard: its ruling was grounded not only in the statutory construction of the ACCA but also in the Sixth Amendment right to jury trial under Apprendi. After first applying a statutory construction analysis under the ACCA as it did in Shepard, the Court turned to die “Sixth Amendment underpinnings” of the analysis. The Court held that a sentencing court’s factfinding “would (at die least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction. Those concerns, we recognized in Shepard, counsel against allowing a sentencing court to ‘make a disputed’ determination ‘about what the defendant and state judge must have understood as the factual basis of the prior plea.’ ” Descamps,
Invited error
The State argues the invited error doctrine precludes Dickey from pursuing his claim for relief on appeal. For the reasons stated below, we are not persuaded by this argument.
Like judicial estoppel, the doctrine of invited error precludes a party from asking a district court to rule a given way and thereafter challenging the court’s ruling on appeal. See State v. Hargrove,
The criminal history worksheet prepared prior to sentencing reflected that Dickey had 55 prior offenses, including 3 person felonies, 12 nonperson felonies, and 40 nonperson misdemeanors. Attached to the original worksheet was a supplemental criminal histoiy worksheet which set forth a table presenting additional information about each of the prior offenses. The table was 11 columns wide, 61 -rows long, and spanned four pages. The following information is embedded in-the table at row 57, which is located on page four of the supplemental worksheet, which in turn is attached to the PSI:
[[Image here]]
On page one of the supplemental worksheet, there was a list of 22 different conviction codes and corresponding classifications, one of which identified the conviction code
As can be seen, the last column of the worksheet identified a prior PSI as the source for the limited information provided about this 1992 adjudication. The conviction code “JFP” was denoted on another page of the worksheet as “Juvenile Felony Person.” Significantly, the State contends the doctrine of invited error applies here based solely on the following questions directed to Dickey at his sentencing hearing about this embedded information:
“THE COURT: And, Mr. Dickey, have you reviewed your criminal history as set forth in die criminal history worksheet attached to the PSI?
“MR. DICKEY: Yes, ma’am.
“THE COURT: Do you have any objection to any of the convictions listed in that document?
“MR. DICKEY: No ma’am.
[[Image here]]
“Q. [DEFENDANT’S COUNSEL:] Okay and we are here today to ask the Court to consider two things; one of them to .. . ask the Court to consider you— to place you on probation in diis particular case, the primary case, and to ask the Court to modify the sentences in the probation violation cases, is that correct?
“A. [MR. DICKEY:] Yes, ma’am.
“Q. And you understand that for starters your criminal history A is that correct do you agree with that?
“A. Yes ma’am.”
There is no dispute that Dickey told the court that he had reviewed his criminal history worksheet; he did not object to any of the convictions listed; and in response to his attorney’s question about whether he understood that he had a criminal history score of A, he responded affirmatively. But it is completely irrational to equate these fleeting and perfunctory responses to routine and prefatory questions to invited error. Neither the record evidence nor cases cited by the State support its argument that the “Yes, ma’am,” “No, ma’am,” “Yes, ma’am,” and “Yes, ma’am” were affirmative invitations by Dickey to count his 1992 juvenile adjudication for burglaiy as a person felony. To construe Dickey to have invited the court to do so for purposes of precluding him from pursuing his claim for relief not only counters the underlying purpose of the doctrine but also unnecessarily thwarts the ends of justice.
Based on the analysis in Descamps v. United States,
Sentence vacated and case remanded with directions.
[[Image here]]
Concurrence Opinion
concurring: I agree with the majority that the crime in question must be classified as a nonperson felony. However, I believe we need only cite to State v. Murdock,