State v. Lewis
| Decision Date | 15 November 2019 |
| Docket Number | Nos. 118,118,403,118,402,401,s. 118 |
| Citation | 451 P.3d 887 (Table) |
| Parties | STATE of Kansas, Appellee, v. Harold L. LEWIS, Appellant. |
| Court | Kansas Court of Appeals |
Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Powell, P.J., Atcheson and Gardner, JJ.
This case, remanded by the Kansas Supreme Court, requires us to revisit the classification of Harold L. Lewis' criminal history. Applying the law that was in effect at the time of Lewis' sentencing, we find that his Texas conviction in 1978 for burglary of a habitation is comparable to the Kansas crime of residential burglary, a person crime. Because the district court correctly classified his criminal history, we affirm.
Harold L. Lewis pleaded guilty to possession of cocaine in case No. 05 CR 3213 for a crime he committed in August 2005. At the same plea hearing, he pleaded no contest to forgery in case No. 06 CR 247, committed in January 2006. In case No. 07 CR 428, Lewis pleaded no contest to aggravated battery, criminal possession of a firearm, and aggravated escape from custody, committed in February 2007. The district court sentenced Lewis in 2007 in all three cases using a criminal history score of B. That score was based in part on Lewis' 1978 Texas conviction for burglary of a habitation, which the district court scored as a person felony.
In 2014, Lewis moved to correct an illegal sentence based on State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015), arguing that the district court should have classified his pre-1993 person convictions as nonperson convictions. The district court denied that motion and held that Murdock did not apply retroactively to Lewis' cases. Lewis appealed, arguing that the district court imposed an illegal sentence by erroneously classifying his 1978 Texas burglary of a habitation conviction as a person felony under State v. Dickey , 301 Kan. 1018, 1034, 350 P.3d 1054 (2015). State v. Lewis , No. 113,438, 2016 WL 1546133 (Kan. App. 2016) (unpublished opinion).
A panel of this court agreed with the State that Texas' definition of habitation fit within Kansas' definition of dwelling, but we reversed and remanded the case anyway. We directed the district court: (1) to review court documents from the 1978 case and determine whether the prior conviction involved burglary of a habitation; and (2) to determine whether Texas' 1978 burglary statute was comparable to the Kansas burglary statute in effect when Lewis committed his current crimes of conviction. Lewis , 2016 WL 1546133, at *5.
At the hearing on remand, Lewis argued that the district court should score his 1978 Texas conviction as a nonperson felony because the facts showed his crime involved a separate garage without an entrance to the house. The district court rejected that argument, determined that Lewis' Texas burglary involved a crime comparable to Kansas' person burglary, and found it was properly scored as a person crime. Lewis appealed. All three cases were consolidated on appeal.
Lewis argued to a second panel of this court that his sentence was illegal because the district court had erroneously classified his 1978 Texas burglary conviction as a person felony. He contended that Texas' burglary of a habitation was not comparable to Kansas' burglary of a dwelling because Texas' definition of habitation was broader than Kansas' definition of dwelling, encompassing both nondwelling buildings or structures and unenclosed property that would not constitute burglary of a dwelling in Kansas.
We agreed, applying State v. Wetrich , 307 Kan. 552, 412 P.3d 984 (2018). That case held that for an out-of-state conviction to be comparable to a Kansas crime under K.S.A. 2017 Supp. 21-6811(e)(3), the elements of the out-of-state crime must be identical to or narrower than the elements of the Kansas crime to which it is being compared. Wetrich , 307 Kan. 552, Syl. ¶ 3. Yet that construction of the statute was contrary to the way the court had analyzed the statute in the past. See, e.g., State v. Williams , 299 Kan. 870, 873, 326 P.3d 1070 (2014) () (quoting State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 [2003], overruled on other grounds by Dickey , 301 Kan. 1018 [2015] ).
We held that the elements of Lewis' 1978 Texas burglary of a habitation conviction were broader than and thus not comparable to the elements of his Kansas burglary. State v. Lewis , No. 118,401, 2018 WL 6711263, at *5 (Kan. App. 2018) (unpublished opinion). The State petitioned for review and the Kansas Supreme Court granted that petition. On review, the Kansas Supreme Court summarily vacated our decision and "remand[ed] this matter to the Court of Appeals for consideration in light of State v. Weber , 309 Kan. 1203, 442 P.3d 1044 (2019) ; State v. Newton , 309 Kan. 1070, 442 P.3d 489 (2019) ; and State v. Dubry , 309 Kan. 1229, 444 P.3d 328 (2019)." We now consider Lewis' argument in light of those cases.
Weber , Newton , and Dubry were decided the same day. They held that Wetrich was a change in the law and that a subsequent change in law regarding consideration of prior out-of-state convictions does not render a sentence, which was legal when imposed, illegal for purposes of a collateral attack. Those cases underscored State v. Murdock , 309 Kan. 585, 591, 439 P.3d 307 (2019) (Murdock II ), which held:
309 Kan. at 591.
Thus our prior decision erred in applying Wetrich . We must determine the legality of Lewis' sentence under K.S.A. 22-3504 by the law in effect at the time his sentence was pronounced—2007, not based on Wetrich , decided in 2018.
Under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., a district court must classify each prior out-of-state conviction as a "person" or "nonperson" crime. K.S.A. 21-4711(e) provides:
(Emphasis added.)
In 2007, when Lewis was sentenced, Kansas caselaw construed this statute to mean "[f]or purposes of determining criminal history, the offenses need only be comparable, not identical." Vandervort , 276 Kan. at 179. Weber , 309 Kan. at 1206.
As Weber makes clear, the "closest approximation" test controlled the determination of comparability for purposes of criminal history until Wetrich was decided in 2018.
309 Kan. at 1209.
Thus in Weber , as in Newton and Dubry , the legality of the defendant's sentence was determined by the comparability test applied in Vandervort , not the identical elements test imposed later by Wetrich.
Weber , 309 Kan. at 1209.
Weber , Newton , and Dubry each applied the pre-Wetrich closest approximation test and upheld the categorizations of comparable out-of-state crimes as person crimes in Kansas. We apply that same test here.
Lewis was convicted of burglary of a habitation in 1978 under the following Texas statute:
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