State v. Moore

• Decision Date: 24 June 2016
• Docket Number: No. 113,545,113,545
• Citation: 377 P.3d 1162,52 Kan.App.2d 799
• Parties: State of Kansas, Appellee, v. Charles H. Moore, Appellant.
• Court: Kansas Court of Appeals

52 Kan.App.2d 799

377 P.3d 1162

State of Kansas, Appellee,

v.Charles H. Moore, Appellant.

No. 113,545

Court of Appeals of Kansas.

Opinion filed June 24, 2016.

Joanna Labastida, 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 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 that 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 dwelling—a fact that hadn't been determined by the jury.

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 factfinding 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 burglary 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 K.S.A. 2004 Supp. 21–4704(j)

. He did not challenge his criminal-history score in the direct appeal of his conviction and sentence, and his appeal was dismissed. State v. Moore , No. 94,309, 2006 WL 903164, at *1 (Kan. App. 2006) (unpublished opinion).

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 ––– U.S. ––––, 136 S.Ct. 865, 193 L.Ed.2d 761 (2016), the district court was required to recalculate 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.

K.S.A. 22–3504

provides that “[t]he court may correct an illegal sentence at any time.” The Kansas Supreme Court strictly defines an “illegal sentence” as “(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.” Makthepharak v. State , 298 Kan. 573, 578, 314 P.3d 876 (2013) ; State v. Trotter , 296 Kan. 898, 902, 295 P.3d 1039 (2013). Defendants can use K.S.A. 22–3504 to challenge their criminal-history scores because such a challenge meets the second definition of an illegal sentence: it's a claim that a sentence doesn't conform to the applicable statutory provision. Dickey , 301 Kan. at 1034, 350 P.3d 1054 (citing State v. Neal , 292 Kan. 625, 631, 258 P.3d 365 [2011] ). But as a general rule, defendants can't use K.S.A. 22–3504 to challenge their sentences on constitutional grounds because a constitutional challenge doesn't fall within the narrow definition of an illegal sentence. State v. Lee , 304 Kan. 416, 417–18, 372 P.3d 415 (2016) (motion to correct illegal sentence wasn't appropriate way to assert claim that sentence was unconstitutional); State v. Warrior , 303 Kan. 1008, Syl., 368 P.3d 1111 (2016) (“A motion to correct illegal sentence under K.S.A. 22–3504 [1] is an improper procedural vehicle for a constitutional claim.”).

The State argues that Moore's claim is constitutional and can't be brought under K.S.A. 22–3504

. See

Lee , 304 Kan. at 417–18, 372 P.3d 415; Warrior , 303 Kan. 1008, Syl., 368 P.3d 1111.

But Dickey held that when a constitutional challenge impacts a defendant's criminal-history score, that challenge meets the definition of an illegal sentence: if the criminal-history score is wrong for any reason, the sentence no longer complies with the sentencing statutes. Dickey , 301 Kan. at 1034, 350 P.3d 1054 (citing Neal , 292 Kan. at 631, 258 P.3d 365 ); State v. Vasquez , 52 Kan.App.2d 708, 714–18, 371 P.3d 946 (2016) (distinguishing claim that a sentencing statute is unconstitutional from a claim that a constitutional error caused an incorrect criminal-history score and illegal sentence); see State v. Luarks , 302 Kan. 972, 975–76, 360 P.3d 418 (2015)

. Moore's claim can be brought under K.S.A. 22–3504.

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 K.S.A. 22–3504 allows the court to correct an illegal sentence at any time. Dickey , 301 Kan. at 1027, 350 P.3d 1054. Second, Moore didn't waive his Dickey argument by failing to object to his criminal-history score at sentencing: the Kansas Supreme Court rejected this argument in Dickey and held that a defendant's stipulation or failure to object at sentencing doesn't prevent the defendant from later challenging how prior convictions were classified for sentencing purposes. 301 Kan. at 1031, 350 P.3d 1054. Third, the State argues that by pleading guilty, Moore waived his right to a jury at sentencing to determine any facts beyond those to which he pled that would increase his sentence. But the Kansas Supreme Court has said that under Apprendi, a defendant's guilty plea doesn't constitute a waiver of his or her due-process rights, including the right to have facts that increase his or her sentence proved beyond a reasonable doubt. See State v. Cody , 272 Kan. 564, 565–66, 35 P.3d 800 (2001) ; see also State v. Allen , 283 Kan. 372, 377–78, 153 P.3d 488 (2007). Moore's argument is properly before this court.

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, 360 P.3d 418

.

We begin our analysis with the Kansas Sentencing Guidelines Act. Under the Act, a defendant's sentence is based on two factors: the severity of the current offense and the criminal-history score of the defendant. See K.S.A. 2015 Supp. 21–6804(a)

(nondrug grid); K.S.A. 2015 Supp. 21–6805(a) (drug grid). The severity of the current offense is simply set forth in Kansas' criminal statutes. See, e.g. , K.S.A. 2015 Supp. 21–5807(c) (listing severity levels for different types of burglary). The criminal-history score, which is determined by the judge, can range from “I” (no criminal history or one misdemeanor) to “A” (three or more person felonies). K.S.A. 2015 Supp. 21–6809

; K.S.A. 2015 Supp. 21–6804(a).

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. K.S.A. 2015 Supp. 21–6810

. Crimes that cause physical or emotional harm to another person are generally person offenses and are weighted more heavily, while crimes that damage property are nonperson offenses and are weighted less heavily. Keel , 302 Kan. at 574–75, 357 P.3d 251. So having more prior person convictions will result in a higher criminal-history score, and a higher...