STATE OF KANSAS, Appellee, v. CHARLES H. MOORE, Appellant.
No. 113,545
Kansas Court of Appeals
June 24, 2016
(377 P.3d 1162) | 799
Opinion filed June 24, 2016.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Before GARDNER, P.J., LEBEN, J., and HEBERT, S.J.
LEBEN, J.: In 2005, Charles Moore pled guilty to aggravated indecent liberties with a child. At sentencing, the district court classified his 1984 Oregon burglary conviction as a person offense, resulting in a higher criminal-history score and longer sentence than if it had been classified as a nonperson offense. In 2014, he filed a motion to correct an illegal sentence, which the district court denied.
On appeal, Moore argues that in classifying his Oregon burglary conviction as a person offense, the district court violated his constitutional rights to a jury trial and due process because it made a factual finding that increased his sentence but wasn‘t proved beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 2288-89, 186 L. Ed. 2d 438 (2013). In State v. Dickey, 301 Kan. 1018, 1036-40, 350 P.3d 1054 (2015), the Kansas Supreme Court relied on Descamps and Apprendi to determine thаt the classification of the defendant‘s prior burglary conviction as a person offense was unconstitutional. The prior-conviction statute in Dickey criminalized burglary of various structures but not specifically burglary of a dwelling. Since the classification of burglary as a person offense depends on whether it involves a dwelling, the district court had gone into impermissible factfinding when it found that the prior conviction involved a
But in this case, unlike in Dickey, Moore doesn‘t argue that the prior-conviction statute lacked a dwelling element. Instead, he argues that the Oregon statute and the comparable Kansas statute require different forms of criminal intent and that the district court in his case engaged in impermissible fаctfinding about his intent when it found the two statutes comparable. But the difference between the intent elements isn‘t relevant to the person classification of prior burglary convictions, and nothing in the Dickey decision requires that we look at Moore‘s intent to determine whether his Oregon crime was a person or a nonperson offense. We therefore affirm the district court, which denied Moore‘s motion to correct an illegal sentence.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, Moore pled guilty to one count of aggravated indecent liberties with a child. The presentence-investigation report listed Moore‘s criminal history as “A” based on his prior convictions, including a 1984 Oregon conviction for first-degree burglаry of a dwelling. At sentencing, Moore initially challenged the validity of the burglary conviction, but he withdrew his objection when the State presented a certified copy of the conviction.
The district court sentenced Moore to 494 months in prison based on his criminal-history score and its finding that he was a persistent sex offender, which doubled his sentence. See
In December 2014, Moore filed a motion to correct an illegal sentence. He argued that under State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016), the district court was required to reсalculate his criminal-history score and reduce his sentence. The district court denied Moore‘s motion, finding that Murdock did not apply. And although Moore had not mentioned the case in his motion, the court noted that another case dealing with how to calculate criminal-history scores, State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), aff‘d 301 Kan. 1018, 350 P.3d 1054 (2015), also didn‘t apply.
Moore has appealed to this court.
ANALYSIS
Moore argues that the district court violated his constitutional rights and imposed an illegal sentence when it classified his 1984 Oregon burglary conviction as a person offense, increasing his criminal-history score and, therefore, his sentence.
The State argues that Moore‘s claim is constitutional and can‘t be brought under
The State makes three other procedural arguments, but none keep us from considering Moore‘s appeal on the merits. First, Moore can raise his Dickey argument for the first time on appeal because
Whether a sentence is illegal and whether prior convictions are properly classified as person or nonperson crimes are questions of law that we review independently, without any required deference to the district court‘s conclusions. Luarks, 302 Kan. at 976.
We begin our analysis with the Kansas Sentencing Guidelines Act. Under the Act, a defendant‘s sentencе is based on two factors: the severity of the current offense and the criminal-history score of the defendant. See
To calculate the criminal-history score, a court lists all of a defendant‘s prior convictions and then classifies each conviction in various ways, including whether it‘s a felony or a misdemeanor conviction and whether it‘s a person or a nonperson conviction.
For an out-of-state conviction, the court makes two classifications after the State proves that the conviction exists. First, the court determines whether the prior conviction is a misdemeanor or a felony based on the law of the state where the defendant was
Similarly, to classify pre-1993 Kansas convictions as person or nonperson, the court compares the prior-conviction statute to the “comparable offense” in Kansas in effect on the date the current crime was committed.
Finally, a special rule applies for classifying prior burglary convictions as person or nonperson: if the prior conviction involved burglary of a dwelling, it‘s a person crime, and if it didn‘t involve a dwelling, it‘s a nonperson crime.
With this review of Kansas sentencing statutes in mind, we turn now to the relevant constitutional principle. Apprendi held that because of the Sixth Amendment right to a jury trial, “[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 “prescribed statutory maximum” is the punishment that‘s authorized under nothing but the facts found by the jury. State v. Gould, 271 Kan. 394, 410-11, 23 P.3d 801 (2001). In other words, a Kansas jury verdict, standing alone, authorizes only the sentence a defendant would receive if he or she has no criminal history—because the judge, and not the jury, determines a defendant‘s criminal-history score. Gould, 271 Kan. at 410-11. Under Apprendi, the court still can use prior convictions to calculate a defendant‘s criminal-history score, which may increase a dеfendant‘s sentence. But the court can‘t increase a defendant‘s sentence based on anything except those prior convictions. In Gould, for example, the Kansas Supreme Court applied Apprendi to hold that upward-departure sentences—increasing the maximum sentence that a defendant could receive based on aggravating facts found by the judge—were unconstitutional under Apprendi. 271 Kan. 394, Syl. ¶¶ 2-6.
Apprendi issues also arise, to a more limited extent, when a court looks beyond the mere existence of a prior conviction to classify it in some way. In Descamps, for example, the Supreme Court considered how a court should classify prior convictions when increasing a defendant‘s sentence under a provision of the federal Armed Career Criminal Aсt. See Descamps, 133 S. Ct. at 2282. That Act prescribes a sentence increase for any felon who possesses a firearm and also has three prior convictions for a “violent felony” or a “serious drug offense.”
That rule is derived from the Supreme Court‘s interpretation of the Armed Career Criminal Act, not the Constitution,
Specifically, in Descamps, the federal sentencing statute defined “violent felony” as burglary, arson, extortion, or another felony that includes an element of using physical force against a person.
Under the categorical approach, the court looks only at the elements of the two offenses. 133 S. Ct. at 2281. The court uses the modified-сategorical approach when the prior-conviction statute is divisible—in other words, when the statute provides alternative ways of committing the crime. 133 S. Ct. at 2281. Under the modified-categorical approach, the court can look at a limited set of documents (like indictments and jury instructions) to determine which of the alternatives the defendant was actually convicted of. 133 S. Ct. at 2281. So, the modified-categorical approach lets the court look at a few underlying facts from the prior conviction, but not for sentencing purposes—only to determine which parts of the prior-conviction statute it should compare to the generic offense. 133 S. Ct. at 2281.
For examplе, Descamps had a prior burglary conviction from California, and the California statute was broader than generic burglary because it didn‘t require proof of unlawful entry, while generic burglary requires breaking and entering of some kind. The California statute wasn‘t divisible because it provided only one way to commit the crime, but the sentencing court looked at the underlying facts of the prior conviction anyway to determine whether it had actually involved an unlawful entry. The Supreme Court reversed, holding that the modified-categorical approach could only be used if the prior-conviction statute was divisible, to determine which part of the statute the defendant was convicted undеr; it couldn‘t be used to discover other facts about the prior conviction to make it fit the generic offense. 133 S. Ct. at 2283.
The sentencing court in Descamps had looked at the facts underlying the prior conviction to determine whether Descamps had actually committed an unlawful entry, even though he wasn‘t convicted of a crime that required proof of an unlawful entry. The court was ultimately trying to determine whether to classify Descamps’ prior conviction as a “violent felony.”
Like in Descamps, Apprendi problems can arise when Kansas courts classify prior convictions as person or nonperson crimes. See Dickey, 301 Kan. at 1039-40. As explained earlier, this problem doesn‘t occur for prior convictions that occurred in Kansas after the Kansas Sentencing Guidelines Act became effective in 1993, because after that date, Kansas criminal statutes expressly stated whether they were person or nonperson crimes. But for out-of-state convictions
This is what happened in Dickey. There, the district court classified the defendant‘s 1992 Kansas juvenile adjudication for burglary as a person felony. As discussed, prior convictions for burglary are scored as person or nonperson offenses based on whether the prior conviction involved burglary of a dwelling because that‘s where the potential for harm to a person occurs.
Here, like in Dickey, Moore challenges the classification of a prior burglary conviction, but unlike in Dickey, his argument isn‘t about the dwelling element. Instead, he argues that his prior conviction was wrongly classified as a person offense because the Oregon burglary statute includes a broader intent element than the Kansas burglary statute in effect when Moore committed his current crime. Essentially, he argues that because of this statutory difference, the Kansas burglary statute isn‘t comparable to the Oregon statute. And if there is no comparable Kansas crime, the prior conviction must be classified as nonperson. See
Because Moore‘s prior conviction comes from Oregon, the court had to classify it in two key ways after the State proved that it existed. First, the court had to determine whether it was a misdemeanor or a felony, based on how Oregon classified it.
When determining which Kansas statute is comparable to an out-of-state conviction, “‘the offenses need only be comparable, not identical.‘” Williams, 299 Kan. at 873 (quoting Vandervort, 276 Kan. at 179). In other words, a comparable crime “‘must be similar in nature and cover a similаr type of criminal conduct.‘” State v. Riolo, 50 Kan. App. 2d 351, 353, 330 P.3d 1120 (2014), rev. denied 302 Kan. 1019 (2015) (quoting State v. Barajas, 43 Kan. App. 2d 639, 643, 230 P.3d 784 [2010]); see State v. Buoy, No. 113,796, 2016 WL 1546422, at *4 (Kan. App. 2016) (unpublished opinion) (comparing first-degree criminal trespass in Arizona to the Kansas statutes for burglary and criminal trespass and determining that the Kansas criminal-trespass statute is more comparable). In Williams, the defendant made essentially the
Williams was decided before Dickey, but the statutory comparison that the Williams court describes is consistent with Dickey and doesn‘t implicate Apprendi because the court looks only at the statutory elements and not at the facts underlying the prior conviction. Williams, 299 Kan. at 874-75. Indeed, this comparability analysis is completely consistent with the categorical approach described in Descamps and Dickey. Descamps, 133 S. Ct. at 2281; Dickey, 301 Kan. at 1037. A court violates Apprendi if (1) it makes factual findings about the prior conviction and (2) those findings increase the maximum sentence that a defendant could receive. 530 U.S. at 490; see also Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) (extending Apprendi to hold that any fact that increases a prescribed statutory minimum sentence, not just a maximum one, must be proven to a jury). But in the comparable-offense analysis, the court looks only for comparable statutory elements; it doesn‘t make any factual findings about the prior conviction, so the Apprendi rule doesn‘t come into play. Williams, 299 Kan. at 874-75; see State v. Friesen, No. 113,495, 2016 WL 1546178, at *3 (Kan. App. 2016) (unpublished opinion) (describing Apprendi as a limit on the statutory comparison that prohibits a court from making factual findings beyond identifying statutory elements).
So, having determined that the Oregon burglary is a felony, the court next has to determine which Kansas statute is comparable.
Oregon criminalizes burglary in the second degree as entering or remaining “unlawfully in a building with intent to commit a crime therein.” (Emphasis added.)
“(1) A person commits the crime of burglary in the first degree if the person violates O.R.S. 164.215 and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:
(a) Is armed with a burglar‘s tool as defined in O.R.S. 164.235 or a deadly weapon; or
(b) Causes or attempts to cause physical injury to any person; or
(c) Uses or threatens to use a dangerous weapon.” (Emphasis added.)
Oregon defines “dwelling” as “a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.”
We note that the Oregon statute is divisible because it provides multiple ways to commit first-degree burglary: either it involved a dwelling, a burglar‘s tool, physical injury to
We do not remand for that purpose, however, because nowhere in his brief on appeal does Moore argue that the “dwelling” elements of the Oregon and Kansas statutes aren‘t identiсal, and he has not disputed that he was convicted of first-degree burglary of a dwelling in Oregon. Moore did initially challenge the classification of this conviction at sentencing, but after he and his counsel reviewed the certified record of the conviction, he dropped his challenge. And the presentence-investigation report, to which he dropped his objection, lists the conviction as “Burglary in the First Degree (Dwelling).”
Moore instead argues that his prior conviction was wrongly classified as a person crime because the Oregon burglary statute included a broader intent element than the comparable Kansas burglary statute, making the crimes not actually compаrable and requiring a nonperson classification. See
Moore‘s argument is based on the broad rule recited in Descamps that the prior-conviction statute must be identical or narrower than the elements of the generic offense to qualify as a violent felony and increase a defendant‘s sentence. 133 S. Ct. at 2281. But this identical-or-narrower rule is a federal rule governing interpretation of the Armed Career Criminal Act. See Taylor v. United States, 495 U.S. 575, 588, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990) (The Act “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.“). Indeed, the categorical approach existed before Apprendi was decided; only later did the Court in Descamps recognize that it helped prevent Apprendi violations. State v. Buell, 52 Kan. App. 2d 818, 830, 377 P.3d 1174 (2016); see Descamps, 133 S. Ct. at 2288 (noting that classifying a prior conviction “would (at the least) raise serious [constitutional] concerns if it went beyond merely identifying a prior conviction“). This rule served as background in Descamps, in which the court compared a specific California burglary statute to the generic offense of burglary: Under the Armed Career Criminal Act, the California burglary statute had to be identical or narrower than generic burglary. 133 S. Ct. at 2281.
But in Kansas, there‘s no statutory requirement that an out-of-state offense be identical or narrower than the сomparable Kansas offense. Buell, 52 Kan. App. 2d at 829-30; Williams, 299 Kan. at 873. And while the Kansas Supreme Court relied on Descamps to decide Dickey, it focused on the Apprendi principle, not on the identical-or-narrower rule. See Dickey, 301 Kan. at 1039-40. And it also didn‘t adopt the identical-or-narrower rule—doing
So Kansas doesn‘t require comparable statutes to be identical—but is the difference between intent elements as meaningful as a difference in dwelling elements can be when classifying prior convictions as person or nonperson crimes? See Dickey, 301 Kan. at 1038-40. In a word, no.
Moore‘s Oregon conviction is definitely a felony. See
For burglary convictions, the dwelling element is the only thing that separatеs person burglary from nonperson burglary; in other words, the level of intent required for nonperson burglary is the same as person burglary.
We recognize that in some earlier cases, other panels of this court have reached the opposite conclusion and have remanded cases similar to this one for application of the categorical or modified-categorical approaches. These panels have concluded, although without much explanation, that Dickey adopted the identical-or-narrower rule from Descamps and that such a result was mandated by Apprendi, Descamps, and Dickey. Mullens, 51 Kan. App. 2d at 1119-20 (remanding for the modified-categorical approach on the intent elements in the Texas and Kansas burglary statutes); see State v. Gonzales, No. 107,798, 2016 WL 299042, at *7 (Kan. App. 2016) (unpublished opinion), rev. denied 305 Kan. 1254 (2016) (same for “in or on” element of the Arizona burglary statute); State v. Lewis, No. 113,438, 2016 WL 1546133, at *5 (Kan. App. 2016) (unpublished opinion) (same for “building or habitation” element of the Texas burglary statute); State v. Morris, No. 111,783, 2016 WL 299056, at *4-5 (Kan. App. 2016) (unpublished opinion), rev. denied 305 Kan. 1256 (2016) (affirming sentence because prior Kansas battery and assault conviction statutes were narrower than comparable Kansas statutes); see also State v. Smith, No. 113,297, 2016 WL 1391767, at *9-10 (Kan. App. 2016) (unpublished opinion), rev. denied 305 Kan. 1257 (2016) (remanding for modified-categorical approach to compare both the dwelling and intent elements of the South Carolina and Kansas burglary statutes); State v. Sturgis, No. 112,544, 2015 WL 9286956, at *18 (Kan. App. 2015) (unpublished opinion), rev. granted 305 Kan. 1257 (2016) (same for intent element of Michigan home-invasion statute).
Another panel of our court, in the Buell opinion also filed today, is in agreement with us that we need not look at additional documents and facts under the modified-categorical approach to determine which part of a divisible statute applied to the defendant unless one of those divisible alternatives has a meaningful impact on the person classification
As a group, Mullens, Gonzales, Smith, and Sturgis (four of the six cases listed above) all involved a prior burglary or home-invasion conviction from another state. See, e.g., Mullens, 51 Kan. App. 2d at 1118. They began their analyses by pointing out the differences betweеn the prior-conviction statute and the comparable Kansas statute. See, e.g., 51 Kan. App. 2d at 1116-17. In doing so, none of them discussed or cited the Kansas caselaw that says “comparable” doesn‘t mean “identical.” See, e.g., 51 Kan. App. 2d at 1118-20. Then they stated that Dickey adopted the Descamps analysis, noted that the out-of-state prior-conviction statutes were divisible, and remanded for the district court to apply the modified-categorical approach to determine both (1) which section of the prior-conviction statute the defendant was convicted under and (2) whether that section was identical to or narrower than the Kansas statute. See, e.g., 51 Kan. App. 2d at 1118-20. They did this without regard for how or why Kansas courts classify crimes as person or nonpеrson, even though for burglary crimes, the only element relevant to the person/nonperson classification is whether the crime involved a dwelling. Accordingly, in our view, these cases reached the wrong result because they overlooked the Kansas definition of “comparable” and adopted the broad identical-or-narrower rule from Descamps.
We do not lightly disagree with prior decisions reached by our court. But panels of our court are allowed to do so. See State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010). And such disagreement can alert the Kansas Supreme Court to conflicting rulings that it may need to resolve. See
In sum, to classify out-of-state convictions as person or nonperson offenses for sentencing purposes, first we compare statutory elements to determine which Kansas statute is “comparable.”
So here, Moore‘s Oregon burglary is comparable to a Kansas burglary, and the differences in the statutes aren‘t relevant to the person classification. Moore‘s Oregon burglary conviction was correctly classified as a person crime, and the district court properly denied Moore‘s motion to correct an illegal sentence.
We therefore affirm the district court‘s judgment.