State v. Dickey

• Decision Date: 22 May 2015
• Docket Number: 110,245.
• Citation: 350 P.3d 1054,301 Kan. 1018
• Parties: STATE of Kansas, Appellee, v. Jeff DICKEY, Appellant.
• Court: Kansas Supreme Court

301 Kan. 1018

350 P.3d 1054

STATE of Kansas, Appellee

v.Jeff DICKEY, Appellant.

110,245.

Supreme Court of Kansas.

May 22, 2015.

Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Anna M. Jumpponen, assistant county attorney, argued the cause, and Charles Ault–Duell, assistant county attorney, Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

Opinion

The opinion of the court was delivered by ROSEN, J.:

The State appeals the Court of Appeals' decision in State v. Dickey, 50 Kan.App.2d 468, 329 P.3d 1230 (2014), vacating Jeff Dickey's 16–month prison sentence for theft (a severity level 9 nonperson felony) and remanding for resentencing. The Court of Appeals reached this decision after concluding that the district court violated Dickey's constitutional rights as described in Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by classifying Dickey's prior 1992 in-state juvenile adjudication for burglary as a person felony—resulting in Dickey having a criminal history score of A and placing him in the A–9 grid box of the Kansas Sentencing Guidelines.

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 the 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, 299 Kan. 312, 323 P.3d 846 (2014) (holding that all out-of-state crimes occurring prior to July 1, 1993—the date the Kansas Sentencing Guidelines Act (KSGA) was implemented—must be classified as nonperson crimes) was inapplicable to determining whether his 1992 in-state juvenile adjudication for burglary was properly classified as a person felony.

Though we rely on a different legal basis than that cited by the Court of Appeals for reaching the merits of Dickey's Descamps/Apprendi argument, we agree with the panel's conclusion that Dickey's legal challenge to the classification of his prior burglary adjudication can be raised for the first time on appeal. Furthermore, we also agree with the panel that because the Kansas Sentencing Guidelines Act (KSGA) provides a specific method for classifying prior burglaries for criminal history purposes, see K.S.A. 2014 Supp. 21–6811(d), neither Murdock 's legal reasoning nor holding has any applicability to the classification issue raised in this case.

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.

A PSI report was prepared prior to the hearing showing that Dickey had 55 prior convictions, including 3 person felonies, 12 nonperson felonies, and 40 nonperson misdemeanors. The individual who prepared the PSI report designated Dickey's criminal history score an “A” based on the finding that Dickey had three prior adult convictions or juvenile adjudications for person felonies. See K.S.A. 2014 Supp. 21–6809 (offender falls into criminal history category A when offender's criminal history 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 was a 1992 juvenile adjudication for burglary, which occurred prior to the enactment of the KSGA and the classification of crimes in Kansas as either person or nonperson.

Under K.S.A. 2014 Supp. 21–6811(d), in order to classify the 1992 burglary 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, 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.

As can be discerned from the statutory language, K.S.A. 1991 Supp. 21–3715 did not distinguish between a burglary of a dwelling versus a burglary of a nondwelling. Though the statute proscribed burglary of a “[b]uilding, 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).

Notably, if a defendant challenges the person/nonperson classification of a prior burglary for criminal history purposes under K.S.A. 2014 Supp. 21–6814(c), then the State has the burden to prove by a preponderance of the evidence the facts required for the classification (i.e., whether the prior burglary involved a dwelling or nondwelling). See K.S.A. 2014 Supp. 21–6811(d).

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 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. 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 Apprendi. 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 argument implicated Apprendi and that based on State v. Conley, 270 Kan. 18, 30–31, 11 P.3d 1147 (2000), issues implicating Apprendi could be raised for the first time on appeal because such claims (1) involved only questions of laws arising on undisputed facts and are determinative of the case; and (2) consideration of such issues are necessary to prevent the denial of fundamental rights. Dickey also maintained that his argument could be raised for the first time on appeal pursuant to K.S.A. 2014 Supp. 21–6820(e)(3), which states: “In any appeal, the appellate court may review a claim that ... the sentencing court...