State v. Gales

• Decision Date: 04 December 2020
• Docket Number: No. 119,302,119,302
• Citation: 476 P.3d 412
• Parties: STATE of Kansas, Appellee, v. Gregory Lynn GALES, Appellant.
• Court: Kansas Supreme Court

476 P.3d 412

STATE of Kansas, Appellee,

v.Gregory Lynn GALES, Appellant.

No. 119,302

Supreme Court of Kansas.

Opinion filed December 4, 2020.

Kristen B. Patty, of Wichita, was on the briefs for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the briefs for appellee.

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

Gregory Lynn Gales challenges the district court's denial of his motion to correct an illegal sentence. He argues his prior 1976 California juvenile adjudication for burglary was improperly scored as a person crime, resulting in a longer prison sentence for his 2001 second-degree murder conviction in Kansas. We agree the district court erred when it looked beyond the elements of the prior crime to score Gales' burglary adjudication as a person offense. We further hold the Court of Appeals panel considering his challenge to the district court's ruling committed a different error by arbitrarily focusing on just a portion of the California statute's definition of burglary when it decided the out-of-state conviction was comparable to the Kansas crime of burglary of a dwelling.

In this somewhat peculiar situation, the statutory rules for classifying Gales' California crime result in an ambiguity, so the rule of lenity requires us to construe the statute in his favor. We reverse a Court of Appeals panel that upheld the person classification, vacate Gales' sentence, and remand his case to the district court for resentencing with the burglary adjudication to be scored as a nonperson offense.

FACTUAL AND PROCEDURAL BACKGROUND

Gales was convicted in 2001 of intentional second-degree murder and arson. The crimes occurred in September 2000. The district court originally sentenced him to 267 months' imprisonment for the murder and imposed a consecutive, 19-month prison term for the arson.

To determine the sentence for the murder conviction, the court applied a criminal history score of D. That score results when the offender's criminal history includes one person felony and no nonperson felonies. K.S.A. 21-4709. Gales' amended presentence investigation report reflected just one person felony—a 1976 California juvenile adjudication listed simply as "Burglary (residence)." The report did not identify the California statute he violated.

In 2014, Gales moved pro se to correct his 2001 sentence. He argued the California burglary adjudication was improperly scored as a person felony, citing State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014) ( Murdock I ) (holding out-of-state convictions for crimes predating the Kansas Sentencing Guidelines Act must be scored as nonperson felonies). The district court denied the motion. It held Gales was not entitled to any benefit from Murdock I because his 2001 sentence was final before Murdock I was decided. He appealed.

As Gales' appeal was pending, this court decided State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015) (holding pre-KSGA Kansas burglaries must be scored as nonperson felonies), and State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015) (overruling Murdock I ). In Dickey , the court held a pre-KSGA Kansas burglary conviction must be scored as a nonperson felony under a statute that provided a prior burglary should be scored as a person felony if it involved a dwelling, but as a nonperson felony if it did not. It concluded the pre-KSGA Kansas burglary statute did not have an element that included a dwelling, so the sentencing court was "constitutionally prohibited from classifying Dickey's prior burglary adjudication as a person felony because doing so would have necessarily resulted from the district court making or adopting a factual finding that went beyond simply identifying the statutory elements that constituted the prior burglary adjudication." 301 Kan. at 1039, 350 P.3d 1054.

In considering Gales' illegal sentence claim, a Court of Appeals panel rejected various procedural bars the State raised. It vacated his sentence and remanded to the district court for resentencing. State v. Gales , No. 114,027, 2016 WL 5844573 (Kan. App. 2016) (unpublished opinion) ( Gales I ). The Gales I panel held remand was appropriate to determine whether Gales' prior California burglary adjudication involved a dwelling under the modified categorical analysis articulated in Dickey . 2016 WL 5844573, at *2-3.

The Dickey court described that analysis as follows:

"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. Naturally, when a defendant's prior conviction arises under a divisible statute, a sentencing court cannot determine whether a defendant's prior conviction constitutes a predicate offense under the ACCA by merely examining the elements of the statute. Thus, without running afoul of Apprendi [v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) ], a sentencing court is permitted to look beyond the elements of the statute and examine a limited class of documents to determine ‘which of a statute's alternative elements formed the basis of the defendant's prior conviction.’ [Citations omitted.]" Dickey , 301 Kan. at 1037-38, 350 P.3d 1054.

In Gales' case, the Gales I panel noted the parties agreed the 1976 California burglary statute did not require evidence the burgled structure was a dwelling. Gales I , 2016 WL 5844573, at *2. The panel held that,

"[C]lassifying Gales' 1976 California burglary as a person offense required the sentencing court to go beyond merely finding the existence of this prior adjudication or comparing the statutory elements constituting burglary. There is no indication in the record that the sentencing court examined the appropriate documents to see whether Gales' California burglary was committed in a dwelling. Those documents would have included the charging documents, plea agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well as findings of fact and conclusions of law from a bench trial. See Johnson v. United States , 559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010). Thus, classifying Gales' 1976 burglary adjudication as a person offense violated his Sixth Amendment constitutional rights as described in Apprendi and Descamps [v. United States , 570 U.S. 254, 267, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013) ]. Whether Gales' prior California burglary adjudication should be properly scored as a person or nonperson offense requires us to remand to the district court for additional findings as provided by Dickey , 301 Kan. at 1039-40 ." Gales , 2016 WL 5844573, at *3.

On remand, the district court conducted an evidentiary hearing. The State offered three exhibits into evidence. Exhibit 1 contained six documents: The California charging document, the judgment, a probation officer's report and recommendation, two orders finding Gales committed additional violations, and an order committing Gales to the state Youth Authority. Exhibit 2 contained five documents, but only one was not included in Exhibit 1, i.e., minutes from an October 1976 hearing finding Gales had received stolen property and ordering him to continue juvenile hall detention. Exhibit 3 contained one document, a January 7, 1976, probation officer's report.

The California charging document that resulted in the burglary adjudication alleged that Gales "on or about August 30, 1975, in the County of Placer, State of California, did wilfully enter the RESIDENCE and building occupied by NATHAN KELLER with the intent to commit a felony and theft therein; thereby violating Section 459 of the Penal Code. BURGLARY." The journal entry adjudicating Gales as a juvenile court ward found "[t]he allegations of the petition are true and correct beyond a reasonable doubt that minor is in violation of Section 459 PC (1ct) and Sec 488 PC (4cts); thereby coming within the provisions of Section 602 of the Juvenile Court Law."

A January 1976 probation officer's report recited some background facts. According to that document, police obtained jewelry from a burglary at "the Keller residence" that had not been reported. The victims confirmed the burglary but said they did not want their insurance rates to go up so they did not report the crime. The officer's report also contains details of a conversation with police in which Gales admitted participating in the burglary. He said a pocketknife was used to slip the front door latch, then he and two accomplices went to a bedroom and took jewelry, but they decided not to steal guns in the home's guest cottage. The report quoted a signed statement Gales made when interviewed in juvenile hall as saying: "Mike Munoz and Tony Munoz and [I] went in the house and took some jewelry and left. Mike told me to get the guns. [I] said no and he came back the next day and got the guns. [I don't] know who was with him then that day." Gales objected to these documents because they were not certified.

At a 2018 hearing following the panel's remand, the district court overruled Gales' criminal history score objection and imposed its original 267-month sentence for the murder conviction, applying a D criminal history score. The court concluded the panel's decision required it to apply the "modified categorical approach" to determine if the burglary adjudication involved a dwelling "because of the fact that the prior conviction from California is a divisible statute." And after reviewing the State's exhibits, it ruled "[f]rom the information from the modified categorical approach, an examination of those documents from the Placer County Court, the Court would find that the out-of-state burglary is in fact a person offense. Therefore, the original criminal history score of D is correct."

Gales moved for reconsideration, arguing again that the file-stamped, but...