State v. Dickey

• Decision Date: 27 June 2014
• Docket Number: No. 110,245.,110,245.
• Citation: 50 Kan.App.2d 468,329 P.3d 1230
• Parties: STATE of Kansas, Appellee, v. Jeff DICKEY, Appellant.
• Court: Kansas Court of Appeals

50 Kan.App.2d 468

329 P.3d 1230

STATE of Kansas, Appellee,

v.Jeff DICKEY, Appellant.

No. 110,245.

Court of Appeals of Kansas.

June 27, 2014.

Syllabus by the Court

1. Although constitutional issues generally cannot be raised for the first time on appeal, appellate courts have recognized an exception 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.

2. 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.

3. Kansas is required by statute to classify prior out-of-state crimes as person or nonperson. In designating a crime as person or nonperson, Kansas shall refer to comparable offenses. If Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime. K.S.A. 2013 Supp. 21–6811(e).

4. The Kansas Supreme Court has interpreted K.S.A. 21–4711(e)—recodified as K.S.A. 2013 Supp. 21–6811(e), the statute governing classification of a prior out-of-state crime as person or nonperson, to require a prior out-of-state crime—whether committed before or after Kansas adopted the Kansas Sentencing Guidelines Act—to be compared to the comparable offense under the Kansas statute in effect at the time the prior out-of-state crime was committed.

5. The Kansas Supreme Court has interpreted the statute governing classification of a prior out-of-state crime as person or nonperson to require all pre-Kansas Sentencing Guidelines Act out-of-state convictions to be scored as nonperson offenses.

6. When the pre-Kansas Sentencing Guidelines Act conviction or adjudication is a burglary, Kansas is required by statute to score the offense for criminal history purposes in a current case (1) as a prior person felony if the prior burglary conviction or adjudication would be classified under the current statute as the burglary of a dwelling and (2) as a prior nonperson felony if the prior conviction or adjudication would be classified under the current statute as the burglary of a nondwelling. K.S.A. 2013 Supp. 21–6811(d).

7. Burglary was defined in 1992 as knowingly and without authority entering into or remaining within any: (1) building, manufactured home, mobile home, tent, or other structure with the 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 the intent to commit a felony or theft therein. Burglary as described in subsection (1) was a class D felony. Burglary as described in subsection (2) was a class E felony. See K.S.A. 1991 Supp. 21–3715.

8. When the elements of the statute in effect at the time of a prior conviction are the same as, or narrower than, the elements of the statute for a comparable offense in effect at the time of sentencing, then the prior conviction will qualify as a predicate conviction for sentence enhancement purposes.

9. When the elements of a statute in effect at the time of a prior conviction sweep more broadly than the elements of the statute for a comparable offense in effect at the time of sentencing, then the prior conviction cannot qualify as a predicate conviction for sentence enhancement purposes, even if the particular facts underlying the prior conviction establish that the defendant actually committed the offense under the statute in effect at the time of sentencing.

10. To determine the proper approach for comparing the elements of a statute in effect at the time of a prior conviction and the elements of the statute for a comparable offense in effect at the time of sentencing, the sentencing court first must determine whether the statute in effect at the time of a prior conviction was divisible or indivisible. A statute is divisible if it sets out one or more elements of the offense in the alternative and, by contrast, a statute is indivisible if it contains a single, indivisible set of elements.

11. If the statute in effect at the time of a prior conviction had a single, indivisible set of elements, sentencing courts must apply the categorical approach to determine whether the elements of a statute in effect at the time of a prior conviction are the same, more narrow, or more broad than the elements of the statute for a comparable offense in effect at the time of sentencing.

12. Under the categorical approach, the sentencing court may look only to the elements of the statute in effect at the time of the prior conviction and not to the particular facts underlying the conviction.

13. If the statute in effect at the time of the prior conviction was divisible or based on multiple, alternative elements that effectively created several different crimes, a sentencing court may apply the modified categorical approach to determine whether the elements of a statute in effect at the time of a prior conviction are the same, more narrow, or more broad than the elements of the statute for a comparable offense in effect at the time of sentencing.

14. Under the modified categorical approach, the sentencing court may consult the trial record, including any charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms, but only for the limited purpose of identifying which of the multiple alternative means of the crime the defendant was convicted under the statute in effect at the time of the prior conviction.

15. If the statute in effect at the time of the prior conviction was divisible but none of the alternative elements match any of the corresponding elements of the comparable offense within the statute in effect at the time of sentencing, a sentencing court may not apply the modified categorical approach to determine whether the elements of a statute in effect at the time of a prior conviction are the same, more narrow, or more broad than the elements of the statute for a comparable offense in effect at the time of sentencing.

16. Although the pre-Kansas Sentencing Guidelines Act version of the burglary statute was divisible, none of the alternative elements match any of the corresponding elements of the post-Kansas Sentencing Guidelines Act version of the burglary statute; thus, a sentencing court must use the categorical approach to look only to the elements of the statute in effect at the time of the prior conviction, not to the particular facts underlying the conviction, to determine whether the elements of a statute in effect at the time of a prior conviction are the same, more narrow, or more broad than the elements of the statute for a comparable offense in effect at the time of sentencing.

17. Looking only to the elements as required under the categorical approach, the pre-Kansas Sentencing Guidelines Act version of the Kansas burglary statute defined burglary more broadly than the current guidelines version does in that it did not include any element relating to whether the structure was a dwelling; thus, a prior conviction or adjudication under the pre-Kansas Sentencing Guidelines Act burglary statute cannot be used as a predicate conviction for sentence enhancement purposes, even if the particular facts underlying the conviction establish that the defendant actually committed the offense under the statute in effect at the time of sentencing.

18. The Sixth Amendment to the United States Constitution requires that any fact, except the fact of a prior conviction, used to increase a sentence beyond the prescribed statutory maximum, must be submitted to a jury and proven beyond a reasonable doubt.

19. 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. As a judicially created rule, the doctrine of invited error should be tailored as necessary to serve its particular purpose without unnecessarily thwarting the ends of justice.

Samuel Schirer, of Kansas Appellate Defender Office, for appellant.

Charles Ault–Duell, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., PIERRON and STANDRIDGE, JJ.

STANDRIDGE, J.

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, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), Dickey contends the district court violated his constitutional rights by classifying a 1992 juvenile adjudication for burglary as a person felony, which enhanced the penalty for his sentence beyond the statutorily prescribed maximum. Applying the holdings in Apprendi and Descamps to the facts presented here, we agree the district court erred by examining record evidence to determine whether Dickey's prior adjudication constituted a person felony for purposes of enhancing his current sentence. Although we find error, we believe it is significant to point out that Descamps was decided on June 30, 2013, so the district court in this case did not have the benefit of its guidance when sentencing Dickey on May 16, 2013. But under the analysis that is now required by Descamps, we necessarily must find that the district court was precluded from looking beyond the statutory elements of Dickey's 1992 prior burglary adjudication to determine whether it would now qualify as a person felony for purposes of enhancing the penalty for his current crime of...