State v. Wetrich

• Decision Date: 09 March 2018
• Docket Number: No. 112,361,112,361
• Citation: 307 Kan. 552,412 P.3d 984
• Parties: STATE of Kansas, Appellee, v. Roy D. WETRICH, Appellant.
• Court: Kansas Supreme Court

307 Kan. 552

412 P.3d 984

STATE of Kansas, Appellee,

v.Roy D. WETRICH, Appellant.

No. 112,361

Supreme Court of Kansas.

Opinion filed March 9, 2018

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Shawn E. Minihan, assistant district attorney, argued the cause, and Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

The State of Kansas seeks review of the Court of Appeals' determination that the district court incorrectly sentenced Roy D. Wetrich by misclassifying a 1988 Missouri burglary conviction as a person felony and, thereby, miscalculating his criminal history score as C, when it should have been E. The State contends that the panel did not consider all of the applicable Missouri statutory provisions and that it ignored the precedent set by an earlier Court of Appeals opinion. We affirm the result reached by the Court of Appeals, vacate the sentence imposed, and remand for the district court to impose a correct sentence for a person with a criminal history score of E.

FACTUAL AND PROCEDURAL OVERVIEW

For acts committed between January 1, 2009 and April 24, 2009, Wetrich was convicted by a Johnson County jury of kidnapping, two counts of aggravated assault, criminal possession of a firearm, possession of marijuana, violation of a protective order, domestic battery, and intimidation of a witness. The district court sentenced Wetrich to a controlling sentence of 124 months in prison, based on a criminal history score of C.

Before sentencing, Wetrich attempted to challenge the person-felony classification of a prior 1988 Missouri conviction for burglary used in his criminal history score. The district court ruled that, because Wetrich had previously unsuccessfully challenged the classification of that Missouri conviction in a different case, he was collaterally estopped from the current challenge. The Court of Appeals reversed that ruling and ordered the district court to conduct a resentencing hearing at which Wetrich could challenge the classification of the prior Missouri conviction. State v. Wetrich , 49 Kan.App. 2d 34, 43-44, 304 P.3d 346, rev. denied 298 Kan. 1208 (2013).

At the resentencing hearing on remand, Wetrich testified that the structure he burglarized in Missouri was a mobile home but that, at the time of entry, the structure was not being used as a residence and was unoccupied. Nevertheless, the district court compared the definition of "dwelling" in K.S.A. 21-3110(7) with Missouri's statutory definition of "inhabitable structure" and found them to be sufficiently analogous to find the Missouri burglary conviction comparable to Kansas' crime of burglary of a dwelling. Consequently, the district court held that Wetrich's prior Missouri burglary conviction was properly scored as a person felony, resulting in a total criminal history score of C.

Again, Wetrich appealed to the Court of Appeals, and that court again disagreed with the district court. Applying State v. Dickey, 301 Kan. 1018, 1021, 350 P.3d 1054 (2015), the panel first compared the Missouri burglary statute, Mo. Rev. Stat. § 569.170 (1986), with the Kansas burglary statute in effect when Wetrich committed his current crime of conviction in 2009, K.S.A. 21-3715. It found that the Missouri statutory definition of "inhabitable structure" was broader than the K.S.A. 21-3110(7) definition of "dwelling" and that the Missouri language contained no element concerning the use of the structure as a dwelling.

State v. Wetrich , No. 112361, 2016 WL 197808, at *4-5 (Kan. App. 2016) (unpublished opinion).

The panel noted that Mo. Rev. Stat. § 569.170 was a divisible statute because it provided alternative elements for committing the crime. Therefore, pursuant to Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed. 2d 438 (2013), the district court might have been permitted to engage in a limited review of documents to determine whether the Missouri conviction matched a Kansas crime. But in this case, the panel determined that none of the alternative elements in the Missouri statute matched the Kansas definition of "dwelling," and the district court could not look outside those statutory elements to engage in the type of judicial fact-finding which was held to be prohibited by Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), and Descamps . Wetrich , 2016 WL 197808, at *5. Accordingly, the Court of Appeals vacated Wetrich's sentence and remanded for resentencing with the correct criminal history score of E. 2016 WL 197808, at *5-6, 364 P.3d 579.

The State petitioned for review, asserting that the panel had cited to an incorrect section of the Missouri statute and pointing out that in State v. Hill , No. 112545, 2015 WL 8590700 (Kan. App. 2015) (unpublished opinion), rev. granted 305 Kan. 1255 (2016), another Court of Appeals panel had previously reached a different result on the comparability of the Missouri burglary statute. Given a split of authority among Court of Appeals panels, we granted the State's petition.

CLASSIFICATION OF MISSOURI BURGLARY CONVICTION UNDER KSGA

Wetrich was convicted of on-grid crimes, meaning that each of his presumptive sentences under the revised Kansas Sentencing Guidelines Act (KSGA) was contained in a two-dimensional sentencing grid, composed of a vertical axis reflecting the severity level of the crime committed (scored from 10 to 1 on the nondrug offense grid and from 4 to 1 on the drug offense grid) and a horizontal axis reflecting the defendant's history of prior criminal convictions (scored from I to A). K.S.A. 2008 Supp. 21-4704 (nondrug offense grid); K.S.A. 2008 Supp. 21-4705 (drug offense grid). Here, the crime severity level is not in dispute, but rather the issue on appeal involves the calculation of Wetrich's criminal history score that is employed on the horizontal axis of the sentencing grid. Specifically, the question is whether an out-of-state conviction is to be classified as a person felony or as a nonperson felony because crimes classified as person felonies are given the most weight in the criminal history calculus. K.S.A. 2008 Supp. 21-4704 ; see K.S.A. 21-4710.

Standard of Review

Classification of prior offenses for criminal history purposes involves interpretation of the KSGA; statutory interpretation is a question of law subject to unlimited review. State v. Keel , 302 Kan. 560, 571-72, 357 P.3d 251 (2015). Whether a district court's application of the KSGA violated constitutional rights presents a question of law subject to unlimited review. Dickey , 301 Kan. at 1036, 350 P.3d 1054.

Analysis

In calculating a criminal history score, all felony convictions and adjudications and certain misdemeanor convictions and adjudications, occurring prior to the current sentencing, are considered. K.S.A. 21-4710(a). Prior burglary convictions are specifically addressed in K.S.A. 2017 Supp. 21-6811(d)(1) (previously K.S.A. 21-4711 [d][1] ), which provides for the scoring as a person felony of any prior conviction or adjudication that "was classified as a burglary as defined in K.S.A. 21-3715(a), prior to its repeal, or K.S.A. 2017 Supp. 21-5807(a)(1), and amendments thereto." We considered the application of the prior burglary provision in Dickey .

Dickey noted that,

"in order to classify a prior burglary conviction or adjudication as a person offense under K.S.A. 2014 Supp. 21-6811(d), a sentencing court must find that the prior burglary involved a 'dwelling,' i.e., 'a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home, or residence.' K.S.A. 2014 Supp. 21-5111(k)." 301 Kan. at 1021, 350 P.3d 1054.

But in order to avoid the constitutional prohibition against enhancing a sentence through judicial fact-finding announced in Apprendi , Dickey held that the dwelling requirement must have been an element of the prior offense, rather than a fact found by the sentencing court in the current case. 301 Kan. at 1036, 1039, 350 P.3d 1054. Because Dickey had a prior juvenile adjudication for burglary in 1992, when the definition of the offense did not include an element requiring the burglarized structure to be a dwelling, the prior offense had to be scored as a nonperson felony. 301 Kan. at 1039-40, 350 P.3d 1054. Dickey also relied on the methodology employed by the Supreme Court in Descamps to constitutionally construe a federal statute. 301 Kan. at 1039, 350 P.3d 1054.

Here, however, another subsection of K.S.A. 2017 Supp. 21-6811 (the amended version of K.S.A. 21-4711 ) applies. Out-of-state convictions are specifically addressed in K.S.A. 2017 Supp. 21-6811(e), to-wit:

"(e)(1) Out-of-state convictions and juvenile adjudications shall be used in classifying the offender's criminal history.

(2) An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction:

(A) If a crime is a felony in another state, it will be counted as a felony in Kansas.

(B) If a crime is a misdemeanor in another state, the state of Kansas shall refer to the comparable offense in order to classify the out-of-state crime as a class A, B or C misdemeanor. If the comparable misdemeanor crime in the state of Kansas is a felony, the out-of-state crime shall be classified as a class A misdemeanor. If the state of Kansas does not have a comparable crime, the out-of-state crime shall not be used in classifying the offender's criminal history.

(3) The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kansas does not have a comparable offense in effect

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