The opinion of the court was delivered by
Richard Luarks raises two challenges to the district court’s calculation of his criminal history score and his resulting 172-month prison sentence. He generally contends the court erred by over-classifying all three of his pre-Kansas Sentencing Guidelines Act (KSGA) convictions as person felonies. And he also argues the classification as a person felony of one of those convictions— for burglary—was unconstitutional because it was based on a fact that was never proven to a jury beyond a reasonable doubt.
Luarks’ arguments are controlled by our recent decisions in State v. Keel,
Accordingly, with only two person felony convictions attributable to Luarks instead of the three calculated by the district court, we vacate Luarks’ sentence and remand to that court for resentencing.
Facts and Procedural History
In 2011, a juiy convicted Luarks of one count of aggravated
After Luarks’ conviction, court services prepared a presentence investigation report (PSI). The criminal histoiy worksheet in the PSI listed 18 prior convictions, including 3 adult person felony convictions before the KSGA became effective in 1993. See K.S.A. 21-4701 et seq.; L. 1992, ch. 239, § 1 (effective July 1, 1993). The person felonies in Luarks’ criminal histoiy worksheet are for the following convictions: (1) a 1981 conviction for attempted rape, (2) a 1986 conviction for aggravated battery, and (3) a 1981 conviction for burglaiy of a residence (collectively the “disputed convictions”). No other person felonies are contained in Luarks’ criminal history.
Based on the disputed convictions, Luarks’ criminal histoiy score was calculated as A. See K.S.A. 2014 Supp. 21-6809 (offender falls into criminal history categoiy A when offender’s criminal history includes three or more adult convictions or juvenile adjudications for person felonies, in any combination). At sentencing, Luarks did not object to his criminal history score, and the district court found it was correct and uncontroverted. Based in part on this finding, the court sentenced him to 172 months’ imprisonment.
A panel of the Court of Appeals affirmed Luarks’ convictions and sentence. State v. Luarks, No. 106,643,
This court granted Luarks’ petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
Analysis
Before proceeding to the merits of Luarks’ arguments, we must first determine whether they are preserved for appellate review. Luarks did not object at sentencing to his criminal histoiy score. So the State contends this failure precludes appellate review of Luarks’ constitutional argument, although it apparently concedes we may consider his statutory argument.
In addressing whether Dickey’s failure to object precluded appellate consideration of his motion, we concluded a defendant’s failure to object to “how [prior] convictions should be classified or counted as a matter of law for tire purpose of determining the defendant’s criminal history score will not prevent a subsequent challenge under K.S.A. 22-3504(1).”
Dickey’s rationale permits our consideration of Luarks’ arguments. Although Luarks has not filed a motion to correct illegal sentence under K.S.A. 22-3504(1), the substance of his arguments is that the district court imposed an illegal sentence—i.e., one that does not comply with the applicable statutory provision regarding the term of punishment authorized—because the court misclassified several prior convictions. See
Issue: The district court did not err by classifying Luarks’ convictions for attempted rape and aggravated battery as person felonies under KS.A. 2014 Supp. 21-6810(d)(6); but it did err by classifying his conviction for burglary as a person felony under KS.A. 2014 Supp. 21-6811(d).
Luarks first asserts the district court erred by classifying the disputed convictions as person felonies under K.S.A. 2014 Supp. 21-6810(d)(6). It provides that “unclassified felonies . . . shall be con
Standard of review
Whether a prior conviction should be classified as a person or nonperson offense under K.S.A. 2014 Supp. 21-6810 requires interpretation of the KSGA, which is a question of law subject to unlimited review. Keel,
Discussion
Luarks’ first argument is controlled by Keel—a case in which this court considered and rejected an indistinguishable argument. There, the majority held “the legislature intended for all prior convictions and adjudications—including convictions and adjudications occurring before implementation of the KSGA—to be considered and scored for purposes of determining an offender’s criminal history score.”
Based on this court’s holding in Keel, we reject Luarks’ argument that all pre-KSGA convictions are necessarily “unclassified” and therefore nonperson offenses. Rather, we must examine the statutes under which the disputed convictions arose and determine the comparable KSGA offenses from July 2010—the date of Lu-arks’ current crime of conviction.
As for Luarks’ remaining disputed conviction—the 1981 burglary—it is most logically addressed in a separate manner from the other two convictions. He argues the district court’s classification of the burglary as a person crime violated his constitutional rights under Descamps v. United States, 570 U.S. -,
Our decision in Dickey controls Luarks’ argument and requires us to vacate his sentence and remand to the district court for re-sentencing. In Dickey, we addressed an argument identical to Lu-arks’. There, we held that “in order to classify a prior burglary conviction ... 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,’ ” which is defined by statute 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.’ ”
We reach the same conclusion here. The statute under which Luarks was convicted of burglary in 1981, K.S.A. 21-3715 (Weeks), defined burglaiy as:
“[K]nowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.
“Burglaiy is a class D felony.”
Like the statute in Dickey, the burglaiy statute here does not include a dwelling element. So the district court’s person classification necessarily required a judicial finding of fact, i.e., that the statutorily-required “structures” that Luarks burglarized were dwellings. See Dickey,
Without this prohibited finding, Luarks’ 1981 burglary conviction should have been classified as a nonperson crime. That classification would have resulted in a lower criminal history score— two person felony convictions instead of three—and thus a lower presumptive sentence for Luarks under the Kansas Sentencing Guidelines. See K.S.A. 2014 Supp. 21-6809 (computing criminal history categories based upon number and types of convictions); K.S.A. 21-6804(q) (defining presumptive sentence). Accordingly, we vacate Luarks’ sentence and remand for resentencing.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded with directions.