State v. Smith, No. 118,042
| Decision Date | 15 May 2020 |
| Docket Number | No. 118,042 |
| Citation | 462 P.3d 1217 (Table) |
| Parties | STATE of Kansas, Appellee, v. Shawn D. SMITH, Appellant. |
| Court | Kansas Court of Appeals |
In this direct appeal from resentencing on remand, Shawn D. Smith challenges the person classification for criminal history purposes of his 1993 South Carolina burglary conviction. This case returns to the Court of Appeals on remand from a Kansas Supreme Court order with directions "remand[ing] for reconsideration in light of State v. Murdock , 309 Kan. 585, 439 P.3d 307 (2019) [ (Murdock II ) ], State v. Weber , 309 Kan. 1203, 442 P.3d 1044 (2019), and State v. Newton , 309 Kan. 1070, 442 P.3d 489 (2019)." State v. Smith , No. 118,042, 2019 WL 7763406 (order dated December 27, 2019). For the reasons stated in this opinion, we vacate Smith's current sentence and remand for resentencing with directions to classify Smith's 1993 South Carolina burglary conviction as a nonperson felony.
We begin by setting forth Smith's long and complicated history with the Kansas court system. This factual summary will include a discussion of several Kansas Supreme Court decisions which, according to Smith, affect the legality of his current sentence.
On May 2, 2014, the Kansas Supreme Court issued its opinion in State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014) (Murdock I ), modified by Supreme Court order September 19, 2014, overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015). Murdock I examined the general statutory provision that directed how to classify prior out-of-state convictions for criminal history purposes. "The Murdock [I ] court held that when calculating a defendant's criminal history that includes out-of-state convictions committed prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA), the out-of-state convictions must be classified as nonperson offenses." Smith , 2016 WL 1391767, at *1 . The KSGA was enacted on July 1, 1993. Keel , 302 Kan. at 566.
The month after Murdock I , Smith filed in Sedgwick County a pro se motion to correct illegal sentence, arguing that his sentence in the Sedgwick County case was illegal because under Murdock I , his 1993 South Carolina burglary conviction should have been classified as a nonperson felony for criminal history purposes. Smith , 2016 WL 1391767, at *1. In November 2014, Smith's court-appointed attorney filed a motion to correct illegal sentence that made the same argument.
The State responded, arguing that res judicata barred the application of Murdock I and that courts should not apply Murdock I retroactively to already final cases because (1) it created a new rule of law, (2) retroactive application would not serve the principles underlying Murdock I , and (3) retroactive application would cause the State substantial hardship. 2016 WL 1391767, at *2. In December 2014, the district court denied Smith's motions and " ‘adopt[ed] the State's response as its findings of fact and conclusions of law.’ " 2016 WL 1391767, at *2. Smith timely appealed the denial of his motion to correct illegal sentence; that appeal is hereinafter referred to as the Sedgwick County appeal.
Smith's Leavenworth County case
In April 2015, Smith pled no contest in Leavenworth County District Court to one count of attempted trafficking in contraband in a correctional institution. State v. Smith , No. 115,830, 2017 WL 3113188, at *1 (Kan. App. 2017) (unpublished opinion).
On May 22, 2015, while Smith's Sedgwick County appeal was pending in this court and he was awaiting sentencing in the Leavenworth County case, the Kansas Supreme Court issued its opinion in State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I ), which involved the person or nonperson classification of a pre-KSGA Kansas burglary conviction. The Dickey I court held that an appellant may raise an illegal sentence claim for the first time on appeal, including a challenge to "the classification of his or her prior convictions and/or the resulting criminal history score used to sentence him or her under the [KSGA]." 301 Kan. 1018, Syl. ¶ 3. It also held that in light of K.S.A. 2014 Supp. 21-6811(d), which sets forth how to classify prior burglary convictions for criminal history purposes, "the legal reasoning and holding of [Murdock I ] is inapplicable to determining whether a prior burglary conviction or adjudication should be classified as a person or nonperson offense." Dickey I , 301 Kan. 1018, Syl. ¶ 6.
K.S.A. 2014 Supp. 21-6811(d) states that prior burglary convictions or adjudications are classified for criminal history purposes as: (1) a person felony if the prior burglary conviction or adjudication involved a dwelling, or (2) a nonperson felony if the prior burglary conviction or adjudication did not involve a dwelling. The Dickey I court held that determining whether a dwelling was involved must comply with the constitutional principles against judicial fact-finding in the context of sentencing as explained by the United States Supreme Court in Descamps v. United States , 570 U.S. 254, 186 L. Ed. 2d 438, 133 S. Ct. 2276 (2013). Dickey I , 301 Kan. at 1035-40.
Under Descamps and Dickey I , when classifying a prior burglary conviction as person or nonperson, the threshold question is whether the burglary statute that defined the prior crime of conviction or adjudication contained a single set of elements or multiple sets of elements. If it contained a single set of elements, the sentencing court examines only those elements—an approach called "the categorical approach"—and the prior burglary is classified as a person crime only if those elements require the involvement of a dwelling. If the prior statute was divisible, the question becomes whether any of the alternatives under which the defendant could have been convicted required the involvement of a dwelling. If yes, a sentencing court may employ the "modified categorical approach" and "examine a limited class of documents"—"includ[ing] charging documents, plea agreements, jury instructions, verdict forms, ... transcripts from plea colloquies[, and] findings of fact and conclusions of law from a bench trial"—to determine which set of elements formed the basis for the prior conviction. Dickey I , 301 Kan. at 1038. If no, the prior burglary conviction must be classified as a nonperson offense. 301 Kan. at 1039.
Smith's Leavenworth County case proceeded toward sentencing. As it had in the Sedgwick County case, his PSI reflected the 1993 South Carolina burglary conviction and scored it as a person felony. Smith objected, arguing that under the law in effect when he entered his plea, it should be scored as a nonperson felony because it was committed before the enactment of the KSGA. The district court held an evidentiary hearing at which "the State presented evidence showing that the burglary was committed on July 4, 1993," and the district court overruled Smith's objection but continued the sentencing. Smith , 2017 WL 3113188, at *1.
On August 28, 2015, the Kansas Supreme Court overruled Murdock I in Keel . See 302 Kan. 560, Syl. ¶ 9. At this time, Smith had filed his initial appellate brief in the Sedgwick County appeal but the State had not, and Smith had not yet been sentenced in his Leavenworth County case. Keel held that no matter if a prior out-of-state conviction occurred before or after the enactment of the KSGA, 302 Kan. at 581.
On October 13, 2015, Smith filed a pre-sentencing motion to withdraw plea in the Leavenworth County case, arguing that he entered his plea because of a belief that his South Carolina burglary would be classified as a nonperson offense, which would have led to a lower criminal history score. The district court denied the motion.
On October 15, 2015, Smith filed his reply brief to this court in the Sedgwick County appeal and argued for the first time that he was entitled to relief under Dickey I because "the classification of his South Carolina burglary as a person offense for criminal history purposes necessarily required judicial factfinding in violation of his constitutional rights as described in Apprendi and Descamps ." Smith , 2016 WL 1391767, at *2. Pursuant to an order from this court, the parties filed supplemental briefs on the applicability of Dickey I to Smith.
On November 6, 2015, the Leavenworth County...
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