PER CURIAM.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Chris Biggs, deputy county attorney, Steven L. Opat, county attorney, and Derek Schmidt, attorney general, for appellee.

MEMORANDUM OPINION

PER CURIAM.

Rick James Hill appeals from his sentencing. For the first time on appeal he argues that the district court erroneously classified his three 2004 Missouri burglary convictions as person felonies, resulting in an improperly enhanced criminal history score of A. Hill claims that the district court's misclassification of those burglaries involved judicial fact-finding prohibited by Apprendi v.. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). We cannot allow Hill's sentences to stand on the sparse record here, so we vacate them and remand the case for resentencing.

Factual and Procedural Background

The State charged Hill with numerous offenses arising out of an April 22, 2014, episode during which he allegedly threatened the occupants of a residence with a handgun he could not legally possess. On July 8, 2014, Hill entered into a plea bargain with the State. Hill agreed to plead no contest to three counts of severity level 7 person felony aggravated assault. The State agreed to dismiss the several other charged counts and to recommend concurrent sentences for the counts of conviction. After the State provided a factual basis and Hill confirmed his desire to plead no contest, the district court found Hill guilty of the agreed-upon charges. Hill, who was in custody on a bond of $100,000, requested a bond modification. The prosecutor objected, pointing out that he expected Hill's criminal history score to be A which would include a presumption of imprisonment. The prosecutor suggested that Hill's prior Missouri convictions of burglary of an “inhabitable dwelling” constituted person felonies. The prosecutor stated that he had “copies of the original [Missouri] complaint, the items that were taken, so on and so forth.” The district court declined to reduce the bond.

The criminal history worksheet incorporated into the presentence investigation (PSI) report indicated that Hill had three prior adult person felony convictions of “Burglary–2nd Degree” arising in 2004 out of one Missouri case. The worksheet also included another Missouri conviction of “Burglary–2nd Degree,” this one from 2008, but that offense was scored as an adult nonperson felony. The PSI report indicated that Hill's criminal history score was A.

At the sentencing hearing August 18, 2014, the district court pointed out that it had received no challenges to the PSI or its suggested criminal history score of A. The prosecutor and defense counsel each declined an opportunity to object on the record to that score. Hill himself confirmed that the convictions listed in the worksheet were his and that he had a criminal history score of A. Not surprisingly, the district court did not sua sponte require the State to prove Hill's criminal history. During allocution Hill contended that he had turned his life around in the year since he had been paroled by Missouri up to the time “this crime took place.” He stated, apparently in mitigation, the following: “I didn't never revert back to my old actions of breaking in homes and just committing senseless crimes.”

The district court determined that Hill's criminal score was A and sentenced him to a controlling term of 32 months in prison, the standard sentence in the nondrug severity level 7–A sentencing guidelines grid box. It followed the plea agreement and ordered that the sentences for the other two counts run concurrent with the 32–month sentence. It denied Hill's request for probation.

Hill timely appealed his sentencing.

Analysis

Hill's failure to object to his criminal history score does not prevent review

The State filed its brief in this appeal on April 3, 2015. In it the State argues that we should not entertain Hill's attack on the classification of his prior Missouri convictions as person felonies because he did not challenge his criminal history score in the district court. Much has been made clear since the State's filing, and we need not analyze this contention; our Supreme Court has recently spoken on this very issue, and we must follow its directives. We now know that a defendant's stipulation or failure to object to his or her criminal history score does “not prevent the defendant from raising a subsequent challenge under K.S.A. 22–3504(1) regarding the legal effect of his or her prior convictions (e.g., how those convictions should be classified and counted for the purpose of determining the defendant's criminal history score).” State v. Keel, 302 Kan. ––––, Syl. ¶ 3, 357 P.3d 251 (2015) filed August 28, 2015; see State v. Dickey, 301 Kan. 1018, Syl. ¶ 4, 350 P.3d 1054 (2015), writ for cert. filed on other grounds September 17, 2015.

Even more recently our Supreme Court noted that a motion under K.S.A. 223504(1) was not a prerequisite for the exercise of appellate jurisdiction over a claim, not otherwise preserved in the district court, that prior convictions had been erroneously classified as person offenses. See State v. Luarks, 302 Kan. ––––, 2015 WL 6594731, at *3 (No. 106,643, filed October 30, 2015). The Luarks court explained that the rationale in Dickey and Keel permitted Luarks' direct appeal from the classification of a pre-Guidelines (Kansas Sentencing Guidelines Act—the KSGA) Kansas burglary conviction as a person felony. The Luarks court stated:

“Dickey's rationale permits our consideration of Luarks' arguments. Although Luarks has not filed a motion to correct illegal sentence under K.S.A. 22–3504(1), the substance of his arguments is that the district court imposed an illegal sentence—i.e., one that does not comply with the applicable statutory provision regarding the term of punishment authorized—because the court misclassified several prior convictions. See 301 Kan. at 1034, 350 P.3d 1054. We have statutory authority to consider illegal sentence issues for the first time on appeal. See K.S.A. 22–3504(1); Dickey, 301 Kan. at 1034, 350 P.3d 1054.” 2015 WL 6594731, at *3.

That Hill's prior convictions were from out-of-state rather than pre-Guidelines makes no difference under the rationale of Dickey, Keel, and Luarks. Regardless of Hill's failure to object to his criminal history score in the district court, we must consider his claim that the district court misclassified the prior Missouri burglary convictions as person felonies when it calculated Hill's criminal history score.

We must vacate Hill's sentences and remand for resentencing.

Hill contends on appeal that the district court erred when it classified his 2004 Missouri burglary convictions as person offenses. Specifically, Hill argues that the district court implicitly indulged in judicial fact-finding when it determined that Hill's Missouri convictions of burglary in the second degree should be treated as the equivalent of person felony burglaries of a dwelling under the KSGA. Hill contends that such implicit fact-finding by a judge rather than a jury increased the penalty for his primary offense, violating his rights under the Sixth and Fourteenth Amendments to the United States Constitution as articulated in Apprendi and Descamps. The State responds that Descamps is irrelevant and does not apply to the KSGA. The State's argument is without merit. The Kansas Supreme Court expressly rejected the same contention in Dickey and held that Descamps was applicable to criminal history scoring issues under the KSGA. See Dickey, 301 Kan. at 1036–39.

We must review Hill's claims and that review is unlimited. “Whether a prior conviction should be classified as a person or nonperson offense involves the interpretation of the KSGA. Interpretation of a statute is a question of law over which appellate courts have unlimited review.” Keel, 302 Kan. ––––, Syl. ¶ 4.

A proper resolution of Hill's claims requires consideration of parts of six statutes: (1) K.S.A.2014 Supp. 21–6811(d), the section of the KSGA which concerns the classification of prior burglary convictions as person or nonperson felonies; (2) K.S.A.2014 Supp. 21–6811(e) which concerns the classification of out-of-state convictions as person or nonperson felonies; (3) Mo.Rev.Stat. § 569.170 (2000), the Missouri statute defining burglary in the second degree in effect at the time Hill committed his relevant prior burglaries; (4) Mo.Rev.Stat. § 569.010)(2), (2000), which includes in the definition of “inhabitable structure,” as used in Mo.Rev.Stat. § 569.170, a structure “[w]here any person lives”; (5) K.S.A.2014 Supp. 21–5807, the same as the Kansas burglary statute in effect when Hill committed his current crimes of conviction (“the classification of a prior conviction ... for criminal history purposes under the KSGA must be based on the classification in effect for the comparable offense when the current crime of conviction was committed.” Keel, 302 ––––, Syl. ¶ 9); and (6) K.S.A.2014 Supp. 21–5111(k) which defines “dwelling,” as used in K.S.A.2014 Supp. 21–5807, as “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. 21–6811(d) requires that prior burglary convictions be classified as person or nonperson. See, e.g., State v. Cordell, 302 Kan. ––––, 354 P.3d 1202, 1204 (2015) (“[T]he distinction between person and nonperson burglaries under K .S.A.2014 Supp. 6811(d) hinges on whether the offender burglarized a dwelling.”). That statutory subsection states:

“(d) Prior burglary adult convictions and juvenile adjudications will be scored for criminal history purposes as follows:

(1) As a prior person felony if the prior conviction or adjudication was classified as a burglary defined in subsection (a) of K.S.A. 21–3715, prior to its repeal, or subsection (a)(1) of K.S.A.2014 Supp. 21–5807, and amendments thereto.

(2) As a prior nonperson felony if the prior conviction or adjudication was classified as a burglary as defined in subsection (b) or (c) of K.S.A. 21–3715, prior to its repeal, or subsection (a)(2) or (a)(3) of K.S.A.2014 Supp. 21–5807, and amendments thereto.

“The facts required to classify prior burglary adult convictions and juvenile adjudications shall be established by the state by a preponderance of the evidence.” K.S.A.2014 Supp. 21–6811(d).

K.S.A.2014 Supp. 21–6811(e) concerns the classification of out-of-state prior convictions and states:

“Out-of-state convictions and juvenile adjudications shall be used in classifying the offender's criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime. Convictions or adjudications occurring within the federal system, other state systems, the District of Columbia, foreign, tribal or military courts are considered out-of-state convictions or adjudications. The facts required to classify out-of-state adult convictions and juvenile adjudications shall be established by the state by a preponderance of the evidence.”

Thus, to determine whether the prior Missouri convictions should be classified as person or nonperson felonies the sentencing court must compare the criminal statute under which Hill was convicted of his 2004 Missouri burglaries, Mo.Rev.Stat. § 569.170, to the appropriate Kansas burglary statute, K.S.A.2014 Supp. 21–5807. Mo.Rev.Stat. § 569.170 defines burglary in the second degree as follows:

“1. A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.

“2. Burglary in the second degree is a class C felony.”

Mo.Rev.Stat. § 569.010(2) defines “inhabitable structure” as follows:

“(2) ‘Inhabitable structure’ includes a ship, trailer, sleeping car, airplane, or other vehicle or structure:

(a) Where any person lives or carries on business or other calling; or

(b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation; or

(c) Which is used for overnight accommodation of persons. Any such vehicle or structure is ‘inhabitable’ regardless of whether a person is actually present.”

K.S.A.2014 Supp. 21–5807 defines burglary in the following:

“(a) Burglary is, without authority, entering into or remaining within any:

(1) Dwelling, with intent to commit a felony, theft or sexually motivated crime herein;

(2) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexually motivated crime therein; or

(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft or sexually motivated crime therein.

....

“(c)(1) Burglary as defined in:

(A) Subsection (a)(1) is a severity level 7, person felony, except as provided in subsection (c)(2);

(B) subsection (a)(2) is a severity level 7, nonperson felony, except as provided in subsection (c)(2);

(C) subsection (a)(3) is a severity level 9, nonperson felony, except as provided in subsection (c)(2).”

Hill argues that the sentencing court incorrectly categorized his prior Missouri burglary convictions as person felonies and therefore violated his rights under Apprendi and Descamps. In Descamps the United States Supreme Court reiterated Apprendi's requirement that any fact, other than the fact of a prior conviction, which increases the penalty for a crime beyond the prescribed statutory maximum must be proved beyond a reasonable doubt to a jury. See Apprendi, 530 U.S. at 490. Descamps held that Apprendi was implicated “when a district court, for purposes of enhancing a defendant's sentence for a current conviction, makes findings of fact at sentencing that go beyond merely finding the existence of a prior conviction or the statute elements that made up the prior conviction. Descamps, 133 S.Ct. at 2888–899.” Dickey, 301 Kan. at 1036.

Two approaches can be derived from Descamps for determining whether a prior conviction can serve to enhance a current sentence. Chief Judge Malone recently described these approaches in State v.. Mullens, 51 Kan.App.2d ––––, 2015 WL 6595277, at *4 (No. 112,988, filed October 30, 2015), in the following:

“Under the analysis in Descamps, which has been adopted in Kansas in Dickey, a court may use one of two approaches to determine whether a prior conviction may be used for sentencing purposes. The categorical approach is appropriate ‘when the statute forming the basis of the defendant's prior conviction contains a single set of elements constituting the crime,’ and consists of comparing the elements of the two crimes; if the elements of the prior crime of conviction are the same as or narrower than the later offense, the prior crime may be used for sentencing purposes. See Dickey, 301 Kan. at 1037, 350 P.3d 1054. The second approach, 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.’ 301 Kan. at 1037, 350 P.3d 1054.

“The Texas burglary statute at issue here is a divisible statute, and one of the permutations of elements under which a defendant may commit burglary in Texas matches the elements of Kansas burglary. Therefore, under Descamps and Dickey, the modified categorical approach is appropriate. That approach allows a sentencing court, without running afoul of Apprendi, ‘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.” [Citation omitted.]’ Dickey, 301 Kan. at 1037–38, 350 P.3d 1054. Such documents include ‘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. [Citation omitted.]’ 301 Kan. at 1038, 350 P.3d 1054. The sentencing court did not employ this approach in Mullens' case.

“Under K.S.A.2014 Supp. 21–6811(d)(1), by classifying Mullens' Texas burglary adjudication as a person felony, the sentencing court necessarily found that it ‘was classified as a burglary as defined in ... subsection (a)(1) of K.S.A.2014 Supp. 21–5807,’ which is ‘without authority, entering into or remaining within any ... [d]welling, with intent to commit a felony, theft or sexually motivated crime therein.’ Yet, as Mullens argues, it is possible that the Texas burglary adjudication did not involve these elements, and the sentencing court did not receive any evidence to support its implied finding that it did. The sentencing court erred in making that factual finding without examining the permissible documents identified in Dickey for information that would have supported such a finding.”

We agree with the analysis and conclusion in Mullens. Here, like the Texas statute in Mullens, the relevant Missouri burglary statute is also a divisible statute. It appears to us that at least one of the permutations of elements under which one can commit a Missouri burglary in the second degree matches the elements of a Kansas person felony burglary. However, other permutations of Missouri burglary in the second degree would not satisfy the Descamps criteria for classification as a prior person felony under K.S.A.2014 Supp. 21–6811(d)(1), and an enhanced sentence based on a misclassified offense would result in an illegal sentence under Dickey, Keel, and Luarks.

As it was, the sentencing court here was not asked to and it did not conduct any analysis of the 2004 Missouri burglary convictions. Just as the district court did in Mullens, the district court here classified Hill's out-of-state burglaries as person felonies. This classification necessarily involved a finding that the elements of Hill's Missouri burglaries were congruent with the elements of Kansas person felony burglary under K.S.A.2014 Supp. 21–5807(a)(1). But this conclusion was erroneous because the district court did not conduct a modified categorical analysis of the elements of the burglary statutes in question, nor did it examine the limited class of documents permitted by Dickey (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) to determine whether “ ‘a statute's alternative elements formed the basis of the defendant's prior conviction.’ [Citation omitted.]” See Dickey, 301 Kan. at 1037–38. Thus, the record we have been provided is legally insufficient under the statutes and cases we have cited above to uphold the person felony classification of the Missouri burglaries used to enhance Hill's criminal history score. We must therefore vacate Hill's sentences and remand the case to the district court for resentencing consistent with Apprendi, Descamps, Dickey and, because we agree with its analysis, Mullens.

Sentences vacated and remanded with directions.