The State appeals the Court of Appeals’ decision in State v. Dickey,
The State argues that the Court of Appeals erred in reaching the merits of Dickey’s Descamps/Apprendi argument (raised for the first time on appeal) because Dickey failed to challenge his criminal history score at sentencing and, in fact, stipulated to the accuracy of his criminal history shown in the presentence investigation (PSI) report prepared prior to his sentencing. Alternatively, the State argues that because Descamps involved the classification of a prior crime for purposes of imposing an enhanced sentence under tire federal Armed Career Criminal Act (ACCA), 18 U.S.C. § 924 (2012), Descamps is simply inapplicable to the issue of how Dickey’s prior juvenile adjudication should be classified (i.e., person or nonperson) for purposes of determining his criminal history score and, in turn, sentencing him under the guidelines. Thus, according to the State, Descamps does not provide a basis for vacating Dickey’s sentence.
In his cross-petition for review, Dickey argues that the Court of Appeals erred in concluding that the legal reasoning of State v. Murdock,
Finally, in order to classify a prior burglary conviction or adjudication as a person offense under K.S.A. 2014 Supp. 21-6811(d), a sentencing court must find that the prior burglary involved a “dwelling,” i.e., “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home, or residence.” K.S.A. 2014 Supp. 21-5111(k). But the burglary statute in effect when Dickey committed his prior burglary did not require evidence showing that the structure burglarized was a dwelling. See K.S.A. 1991 Supp. 21-3715. Thus, determining whether Dickey’s prior burglary involved a dwelling would necessarily involve judicial factfinding that goes beyond merely finding the existence of a prior conviction or the statutory elements constituting that prior conviction. Accordingly, we agree with the Court of Appeals that classifying Dickey’s prior burglary adjudication as a person felony violates his constitutional rights as described under Descamps and Apprendi. Consequently, his sentence must be vacated and his case remanded to the district court for resentencing with instructions that his prior burglary adjudication be classified as a nonperson felony.,
Facts
On April 9, 2013, Dickey pled guilty to felony theft. A hearing was conducted on May 16, 2013, to consider sentencing on the theft conviction and whether to revoke Dickey’s probation in four other cases.
Under K.S.A. 2014 Supp. 21-6811(d), in order to classify the 1992 burglaiy adjudication as a person felony, the person who prepared the PSI would have had to conclude that the 1992 burglary involved a “dwelling,” which is defined as “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home, or residence.” K.S.A. 2014 Supp. 21-5111(k). At the time of Dickey’s 1992 adjudication, burglaiy 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.
As can be discerned from the statutory language, K.S.A. 1991 Supp. 21-3715 did not distinguish between a burglaiy of a dwelling versus a burglaiy of a nondwelling. Though the statute proscribed burglary of a “[bjuilding, manufactured home, mobile home, tent or other structure,” it did not require a showing that the structure burglarized be a “dwelling,” i.e., was “used or intended for use as a human habitation, home or residence.” K.S.A. 2014 Supp. 21-5111(k).
A certificate of service sheet attached to the PSI report shows that the report was served upon defense counsel via courthouse mail and U.S. mail on May 2, 2013. Dickey never filed any notice of error pursuant to K.S.A. 2014 Supp. 21-6814(c) (“Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. Such notice shall specify the exact nature of the alleged error.”)- At the sentencing hearing on May 16, Dickey responded affirmatively when die 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. Dickey testified in support of his motion for a downward departure sentence. During this testimony, defense counsel asked: “And you understand that for starters your criminal history A is that correct do you agree with that?” Dickey responded: “Yes, ma’am.”
After hearing the testimony and the arguments of counsel, the district court denied Dickey s motion for downward departure and sentenced Dickey to 16 months’ imprisonment (the standard sentence in the A-9 grid box) and ordered the sentence to run consecutive to his sentences in the four other criminal cases in which his probation was revoked. Dickey filed a timely notice of appeal.
Before the Court of Appeals, Dickey argued that the district court’s classification of his 1992 burglary adjudication—resulting in him having a criminal history score of A—violated his rights under the Sixth Amendment to the United States Constitution as described in Descamps (filed after Dickey’s sentencing) and Ap-prendi. Dickey conceded that he was raising this argument for the first time on appeal and that he failed to raise an objection to his reported criminal history score. But he contended that his argu
The State argued Descamps had no application to this case because Descamps involved judicial factfinding at a federal sentencing hearing to determine whether a prior burglary conviction qualified as a predicate offense under the ACCA for purposes of imposing an enhanced sentence. Thus, according to the State, the case involved application of a federal sentencing statute and not application of constitutional law. Instead of Descamps, the State argued that the outcome of this case was controlled by prior Court of Appeals’ decisions indicating that a pre-KSGA burglary conviction could be properly classified as a person felony if the underlying facts of the prior conviction showed that a dwelling was burglarized. See, e.g., State v. May,
In further support of his argument that his 1992 burglary adjudication should be classified as a nonperson felony, Dickey filed a letter with the Court of Appeals pursuant to Supreme Court Rule 6.09(b) (2014 Kan. Ct. R. Annot. 52) advising it of this court’s
In a published opinion, the Court of Appeals panel agreed with Dickey that his Descamps argument could be raised for the first time on appeal because it only involved a question of law on undisputed facts and was determinative of the case and because consideration of the argument was necessary to serve the ends of justice and to prevent the denial of a fundamental right. Dickey,
“affirmative invitations by Dickey to count his 1992 juvenile adjudication for burglary 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.”50 Kan. App. 2d at 492 .
Accordingly, the panel addressed the merits of Dickey’s Des-camps argument. Before doing so, however, the panel analyzed this court’s decision in Murdock. The panel reasoned that because Murdock addressed the issue of how to classify pre-KSGA out-of-state crimes for sentencing purposes—a situation for which the legislature had provided no explicit statutory guidance—Murdock’s reasoning for classifying such crimes as nonperson offenses was inapplicable to the situation here: how to.classify a pre-KSGA instate burglary conviction or adjudication. The court noted that K.S.A. 2013 Supp. 21-6811(d) specifically applied to the classification of in-state burglary convictions occurring before the enactment of tire KSGA. Accordingly, the panel concluded that “neitiier the analysis nor the holding in Murdock apply to the issue presented in this case.” Dickey,
Judge Pierron filed a concurring opinion, agreeing with the majority that Dickey s 1992 burglary adjudication rnurt be classified as a nonperson felony. But, unlike the majority, Judge Pierron believed that Murdock’s reasoning was applicable to Dickey s case and dictated that his 1992 adjudication be classified as a nonperson felony. Dickey,
The State filed a petition for review arguing that (1) Dickey waived appellate review of the classification of his 1992 burglary adjudication because he failed to challenge the classification at sentencing; and (2) Descamps is inapplicable to the sentencing issue presented here because Descamps involved application of a federal sentencing enhancement statute. Dickey filed a cross-petition for review arguing that Murdock applies to his case and provides an alternative basis for classifying his burglary adjudication as a nonperson felony. This court granted the State’s petition for review as well as Dickey s cross-petition for review.
Waiver
The State argues that the Court of Appeals erred in addressing the merits of Dickey’s challenge to the classification of his prior
Though not relied on by either Dickey or the Court of Appeals as a means for raising his Descamps argument for the first time on appeal, K.S.A. 22-3504(1) specifically authorizes a court to “correct an illegal sentence at any time.” This language has generally been interpreted to mean that “an illegal sentence issue may be considered for the first time on appeal.” State v. Floyd,
In State v. Vandervort,
In addressing whether the defendant was procedurally barred from challenging his criminal history score on appeal, the Vander-vort court quoted State v. McBride,
In McBride—the Court of Appeals decision cited by tire Van-dervort court—the defendant stipulated to his criminal history score at sentencing but subsequently argued on appeal that his prior juvenile adjudication for burglary should have been scored as a nonperson felony instead of as a person felony. The defendant claimed that his resulting sentence was an illegal sentence and, thus, could be corrected at any time pursuant to K.S.A. 22-3504. The Court of Appeals, citing State v. Thomas,
Notably, tire court in Thomas applied the invited-error doctrine to an evidentiary question—not a sentencing issue. The defendant in Thomas claimed that the district court erred in preventing him from presenting evidence at trial showing that the victim, in exchange for a large sum of money, offered to “drop the case” against the defendant.
“The [defendant’s] successful exclusion of similar evidence is significant. It is settled law that one who by his acts invites error is in no position to complain or take advantage of it on appeal. [Citations omitted.] Thus, a party who has had evidence excluded is estopped to complain of the subsequent exclusion of similar evidence offered by him.”220 Kan. at 106 .
This court later relied on Vandervort in State v. Goeller,
More recent cases from this court have interpreted K.S.A. 22-3504 as allowing challenges to criminal ¡history scores and/or clas
The district court and the Court of Appeals concluded that the defendant was procedurally barred from challenging tire accuracy of his criminal history score in a motion to correct an illegal sentence because the defendant had already challenged the score on direct appeal. In other words, the defendant was improperly using a motion to correct an illegal sentence as a substitute for a second appeal. Neal,
“necessarily a challenge to his sentence that the history score helped produce. If the history score is incorrect, it follows that his resulting sentence cannot conform*1031 with the statutory provision in the term of the punishment authorized . . . and, consequently, is an illegal sentence. Accordingly, K.S.A. 22-3504 is the proper vehicle for his claim. [Citation omitted.]”292 Kan. at 631 .
Accordingly, the Neal court proceeded to address the merits of the defendant’s argument.
A similar result was reached in State v. Weber,
The Weber court rejected the State’s waiver argument, stating that
“K.S.A. 22-3504(1) specifically authorizes a court to correct an illegal sentence at any time. We reiterated recently that this means that ‘an illegal sentence issue may be considered for the first time on appeal.’ [Citation omitted.] Moreover, if a prior conviction is erroneously included in the calculation of an enhanced sentence under the Habitual Criminal Act, the resulting sentence is illegal as not conforming to the statutorily authorized term of punishment. [Citation omitted.] Therefore, if the district court erroneously included tire prior Michigan assault conviction in calculating [die defendant’s] enhanced sentence under tire aggravated habitual sex offender provision, the resulting sentence is illegal and is subject to challenge here and now.”297 Kan. at 813-14 .
With regard to the State’s argument concerning defense counsel’s stipulation at sentencing, the Weber court agreed with the State that the defendant “should be bound by his counsel’s stipulation of fact in the district court with respect to his criminal history, i.e., the factual stipulation that Weber was convicted in Michigan of the crime of assault with intent to commit criminal sexual contact in tire second degree.” Weber,
“The legal question of whether [the defendant’s] admitted criminal history was sufficient to meet the requirements of K.S.A. 2009 Supp. 21-4642(c)(l)(B), so as to define him as an aggravated habitual sex offender subject to enhanced sentencing, “ ‘must rest upon the court, uninfluenced by stipulations of the parties.’ ” [Citations omitted.] Therefore, despite the concession of [defense] counsel, ‘we nevertheless must address the accuracy of the purported legal basis of [die defendant’s] concession.’ [Citation omitted]; see also Ritchie Raving, Inc. v. City of Deerfield,275 Kan. 631 , 641,67 P.3d 843 (2003) (‘Stipulations as to what the law is are not effective and not controlling on this court.’).
“Perhaps more to the point here, ‘Kansas law is clear that a defendant can’t agree to an illegal sentence.’ [Citations omitted.] Accordingly, the State’s alleged procedural bar emanating from a defense stipulation ... is simply unavailing.” Weber,297 Kan. at 814-15 .
It appears that the legal reasoning of Neal and Weber is more sensible than the line of cases holding that a defendant waives a subsequent challenge to the classification of prior convictions or to his or her criminal history score if he or she stipulated or failed to object to the classification or score at sentencing. As Weber indicates, a defendant’s stipulation or failure to object at sentencing will prevent the defendant from later challenging the existence of convictions listed in his or her criminal histoiy. But a stipulation or lack of an objection regarding how those convictions should be classified or counted as a matter of law for the purpose of determining the defendant’s criminal histoiy score will not prevent a subsequent challenge under K.S.A. 22-3504(1) of his or her prior convictions. Weber,
The problem with the State’s argument is that Dickey raised a pure legal argument on appeal for why his burglary adjudication was improperly classified as a person felony. As the Court of Appeals’ panel in this case noted:
“Given [die] statutory language [of K.S.A. 2014 Supp. 21-6811(d)], 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,530 U.S. 466 , 490,120 S. Ct. 2348 ,147 L. Ed. 2d 435 (2000) (‘Other tiran tire 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.’ [Emphasis added.]). Dickey claims tire sentencing court violated Apprendi by going beyond the fact that he had a pre-KSGA unclassified prior adjudication for burglary to consider other facts in ultimately deciding that his prior burglary adjudication involved a dwelling and was a person felony, which in turn increased tire penalty for his current crime beyond the prescribed statutory maximum.
“Based on the manner in which Dickey has framed the issue and the cases he relies on in support thereof, tire 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 tire 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 tire United States Supreme Court in Descamps*1034 v. United States, 570 U.S _,133 S. Ct. 2276 ,186 L. Ed. 2d 438 (2013).” Dickey,50 Kan. App. 2d at 481-82 .
Again, the language of K.S.A. 22-3504(1) specifically authorizes a court to “correct an illegal sentence at any time.” This language has generally been interpreted to mean that “an illegal sentence issue may be considered for the first time on appeal.” Floyd,
Though we rely on a different basis tiran the Court of Appeals did to address die merits of Dickey’s argument, we agree widi the Court of Appeals that Dickey’s argument—-a legal challenge to the classification of a prior adjudication for purposes of lowering his criminal history score—can be raised for first time on appeal pursuant to K.S.A. 22-3504(1). See Neal,
Whether a prior conviction or adjudication was properly classified as a person or nonperson crime for criminal history purposes raises a question of law subject to unlimited review. State v. Murdock,
The Applicability of State v. Mubdock
As noted above, before addressing Dickey’s Descamps v. United States, 570 U.S _,
As the Dickey panel recognized, unlike the prior convictions at issue in Murdock, there is a statutorily prescribed mechanism for classifying Dickey s 1992 juvenile adjudication for burglary. K.S.A. 2014 Supp. 21-6811(d) provides that a prior burglary conviction or adjudication will be classified for criminal history purposes as: (1) a person felony if the prior burglary conviction or adjudication involved a dwelling, or (2) a nonperson felony if the prior burglary conviction or adjudication did not involve a dwelling. Accordingly, the classification issue presented in this case is specifically controlled by K.S.A. 2014 Supp. 21-6811(d) and not Murdock. We will now address whether K.S.A. 2014 Supp. 21-6811(d) can be constitutionally applied to Dickey.
Descamps
In a thorough and comprehensive analysis of the United States Supreme Court’s decision in Descamps, the Court of Appeals panel majority concluded that classifying Dickey’s 1992 juvenile adjudication for burglary as a person felony would require judicial fact-finding in violation of Dickey’s constitutional rights as described in
Whether a defendant’s constitutional rights as described under Apprendi were violated by a district court at sentencing raises a question of law subject to unlimited review. State v. Anthony,
Under Apprendi, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond tire prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi is implicated, however, when a district court, for purposes of enhancing a defendant’s sentence for a current conviction, makes findings of fact at sentencing that go beyond merely finding the existence of a prior conviction or the statutory elements that made up the prior conviction. Descamps,
To determine whether a prior conviction qualifies as a predicate offense under die ACCA without violating Apprendi, the Descamps Court held diat a sentencing court must use one of two approaches—the categorical approach or the modified categorical approach. Descamps,
The modified categorical approach applies when the statute forming the basis of the prior conviction is a “divisible statute,” i.e., a statute which includes multiple, alternative versions of the crime and at least one of the versions matches the elements of the generic offense. Descamps,
The Descamps Court clarified that the modified categorical approach is prohibited if the statute is not divisible, i.e., contains one set of elements defining the crime.
“because, in some cases, none of the alternative elements will match any elements of the corresponding generic crime. Post -Descamps, a case involving a prior statute of conviction for burglary containing alternative elements, none of which match any element of a generic statute, is virtually indistinguishable from a case involving a prior statute of conviction for burglary containing a single and indivisible set of elements; thus, the modified approach has no role to play.” (Emphasis added.) Dickey,50 Kan. App. 2d at 487 .
See also Descamps,
The categorical approach and modified categorical approach described in Descamps ensure that sentencing courts, when examining a prior conviction for sentencing purposes, do not engage in factfinding in violation of Apprendi by attempting to determine whether a defendant’s actions satisfied an element not contained within the statute under which the defendant’s prior conviction arose. See Descamps,
Applying Descamps here, K.S.A. 2014 Supp. 21-6811(d) states that a prior burglary conviction or adjudication will be classified as a person felony if the prior burglary involved a “dwelling,” which is defined as “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.” K.S.A. 2014 Supp. 21-5111(k). 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.
Though the burglary statute forming the basis for Dickey s prior juvenile adjudication was comprised of multiple, alternative versions of the crime, none included an element requiring that the structure burglarized be a dwelling, i.e., “used or intended for use as a human habitation, home or residence.” K.S.A. 2014 Supp. 21-5111(k). Consequently, employing either a categorical approach or a modified categorical approach to determine whether Dickey s prior burglary adjudication involved a dwelling would be constitutionally prohibited under Descamps and Apprendi. See Descamps,
Based on the above analysis, the district court was constitutionally prohibited from classifying Dickey s prior burglary adjudication as a person felony because doing so would have necessarily resulted from tire district court making or adopting a factual finding that went beyond simply identifying the statutory elements that constituted the prior burglary adjudication. Because burglary of a “dwelling” (as that term is defined in K.S.A. 2014 Supp. 21-5111[k]) was
Accordingly, we affirm the Court of Appeals’ decision vacating Dickey’s sentence and remand the case to the district court for resentencing with directions that Dickey’s 1992 adjudication for burglary be classified as a nonperson felony for purposes of calculating his criminal history score. Judgment of the district court is reversed and remanded.