Opinion
No. 109,655.
2014-10-17
STATE of Kansas, Appellee, v. Richard Lee FARLEY, Appellant.
Appeal from Shawnee District Court; Richard D. Anderson, Judge.Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Richard D. Anderson, Judge.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Richard Lee Farley appeals from the sentence imposed by the district court after he pled no contest to rape. Relying on Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Farley asserts that the district court violated his constitutional rights by classifying three prior out-of-state burglary convictions as person felonies for purposes of calculating his Kansas criminal history score. That classification led to a criminal history score of A and resulted in an enhanced sentence. In addition, Farley challenges the classification of his prior attempted second-degree assault conviction as a person felony, arguing that Kansas has no comparable crime. Finally, Farley argues that the district court violated his constitutional rights when it used his criminal history to calculate his sentence without following the procedural safeguards of Apprendi.
Facts
In 2012 Farley pled no contest to rape based upon events in 2010, when Farley entered a tent occupied by the sleeping victim, put a knife to her throat, and raped her.
The presentence investigation (PSI) report showed that Farley had four prior person felonies, three prior nonperson felonies, and one prior nonperson misdemeanor, resulting in a criminal history score of A. These included Missouri convictions in 1991, 1992, and 1998 for burglary and a Missouri conviction in 2000 for attempted second-degree assault.
Prior to sentencing, Farley filed a written objection to the PSI. He challenged his criminal history score, arguing: (1) his Missouri burglary convictions were not burglaries of dwellings under Kansas law and should be treated as nonperson felonies; and (2) his Missouri conviction for attempted second-degree assault was not a person felony under Kansas law. The State filed a response, supplemented with documentation regarding the convictions from Missouri, and asserted that all of the challenged crimes were properly classified as person felonies. The State argued the facts showed the Missouri crimes of conviction were comparable to Kansas crimes and were properly classified as person felonies under Kansas law.
Farley again raised his objections to his criminal history score at the sentencing hearing. The district court overruled Farley's objections, finding the person felony designations to be proper under Kansas law for all four Missouri convictions. The court determined the State provided sufficient documentation and met its burden to show that the burglaries were burglaries to dwellings and classified those convictions as person felonies. The district court further determined the Missouri second-degree assault statute was equivalent to the Kansas statute applicable at the time for aggravated battery (K.S.A.21–3414), and Farley's second-degree assault conviction should also be classified as a person felony.
The district court determined the PSI correctly listed Farley's criminal history score as A. The district court denied Farley's motion for a downward departure and sentenced Farley to 620 months' imprisonment. Farley appeals his sentence.
Farley's Missouri Burglary Convictions
Farley asserts that because the Missouri crime of second-degree burglary is not directly comparable to the Kansas crime of burglary, the district court engaged injudicial factfinding, using a preponderance of the evidence standard, to determine which subsection of the Kansas burglary statute would have criminalized his Missouri offenses. He contends this procedure violated Apprendi when his increased sentence was based on facts determined by the judge rather than the jury.
K.S.A. 21–4721(e)(3) allows us to review a claim that the sentencing court erred in determining the proper classification of a prior conviction for criminal history purposes. Resolving the issue requires interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. , a question of law over which our review is unlimited. State v. Ardry, 295 Kan. 733, 735, 286 P.3d 207 (2012).
In 1993, the legislature adopted the KSGA. Prior to that time, Kansas law did not differentiate between nonperson and person crimes. Under the KSGA, the criminal history score is calculated in part by distinguishing between person and nonperson crimes. Person crimes are generally weighted more heavily than nonperson crimes. See K.S.A. 21–4709. When the KSGA was adopted, K.S.A. 21–3715 reclassified burglaries of dwellings as person felonies, while other burglaries were considered nonperson felonies. See K.S.A. 21–3715 (Furse 1995); L.1993, ch. 291, sec. 74.
Farley has two burglary convictions occurring before 1993 and one after 1993. Prior to sentencing, Farley filed a written objection to the PSI, arguing that his three prior Missouri convictions for second-degree burglary should be treated as nonperson felonies. The State responded by providing copies of court filings in the respective cases. Because the Missouri crime of second-degree burglary is not directly comparable to the Kansas crime of burglary, the district court engaged injudicial factfinding, using the preponderance of the evidence standard, to determine which subsection of the Kansas burglary statute would have criminalized these Missouri crimes.
Farley contends that all three Missouri burglary convictions should have been scored as nonperson offenses under K.S.A. 21–4711(e) because the classification of prior convictions as person or nonperson felonies is based on the comparable Kansas offense in effect at the time of the out-of-state offenses. See State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010). Kansas did not begin categorizing crimes as person or nonperson offenses until 1993 with the adoption of the KSGA. Two of Farley's convictions occurred before 1993. Thus, Farley contends the district court erred in treating his pre–1993 convictions as person felonies.
After the briefs were filed in this case, our Supreme Court addressed a similar sentencing challenge to the district court's classification of out-of-state pre–1993 convictions as person or nonperson felonies in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by order September 19, 2014. In Murdock, our Supreme Court held that since Kansas did not begin classifying crimes as person or nonperson felonies until the adoption of the KSGA in 1993, all out-of-state convictions committed prior to the enactment of the KSGA must be classified as nonperson offenses for criminal history purposes. 299 Kan. at 319. We are duty bound to follow Supreme Court precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). As such, the district court erred in classifying Farley's pre–1993 Missouri burglary convictions as person felonies for sentencing.
Farley also contends the district court erred in scoring his 1998 Missouri burglary conviction as a person felony because Missouri's statute defining burglary is broader than the Kansas burglary statute. The key element for categorizing a burglary in Kansas is whether the structure entered constituted a dwelling. Farley argues that for all three of his Missouri burglary convictions, before or after 1993, it was necessary for the district court to engage injudicial factfinding to determine whether the structures burglarized constituted dwellings. Farley argues that because judicial factfinding goes beyond the mere recognition of a prior conviction, his sentence in this appeal violates Apprendi.
K.S.A. 21–4711(e) provides for the classification of out-of-state convictions for purposes of calculating a criminal history score. The relevant part states:
“Out-of-state convictions ... will 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. ... The facts required to classify out of-state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence.” (Emphasis added.) K.S.A. 21–4711(e).
Whether a prior conviction is treated as a person or nonperson felony is based upon the classification in Kansas as of the date of the comparable offense in Kansas. K.S.A. 21–4711(e); Williams, 291 Kan. 554, Syl. ¶ 4. A comparable offense is determined by comparing the elements of the crimes. The offenses need only be comparable and do not have to be identical for making the person or nonperson designation. State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003).
Farley's 1998 burglary conviction was pursuant to Mo.Rev.Stat. § 569.170 (1994), which defined second-degree burglary 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.”
The Missouri statute did not contain a person/nonperson classification, and it did not differentiate between burglary of a dwelling and burglary of a structure other than a dwelling. The statute referred to an “inhabitable structure,” but Mo.Rev.Stat. § 569.010(2) (1994) defined “inhabitable structure” broadly to include structures other than dwellings. For example, an “inhabitable structure” includes the structure where a person “carries on business” or where “people assemble for purposes of business, government, education, religion, entertainment or public transportation.” Mo.Rev.Stat. § 569.010(2)(a),(b).
The Missouri burglary statute is more broadly drawn than the Kansas statute. The Kansas burglary statute, K.S.A. 21–3715, draws a dwelling/nondwelling distinction in categorizing the crime. Under the Kansas statute, burglary of a dwelling (“[b]uilding, manufactured home, mobile home, tent or other structure which is a dwelling”) is a person felony; all other burglaries are nonperson felonies. See K.S.A. 21–3715; State v. Roose, 41 Kan.App.2d 435, 439, 203 P.3d 18 (2009). A “dwelling” as used in this statute is defined in K.S.A.2010 Supp. 21–3110(7) as follows: “ ‘Dwelling’ means 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.”
In Apprendi, the Supreme Court held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. Prior convictions may be used to enhance the sentence for a later crime because the prior convictions had already been afforded the “substantial procedural safeguards” embodied by Apprendi. State v. Hitt, 273 Kan. 224, 229, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003); see Almendarez–Torres v. United States, 523 U.S. 224, 118S.Ct. 1219, 140 L.Ed.2d 350 (1998).
Farley argues that because his prior 1998 Missouri burglary conviction did not occur under a statute with the same elements of a Kansas person felony and because no jury ever found beyond a reasonable doubt that his prior burglary contained all of the elements of the Kansas crime of burglary, it is a violation of his constitutional rights to count the burglary as a person felony when calculating his criminal history score. Further, the procedure followed, as specified in K.S.A. 21–4711(e), unconstitutionally allowed the sentencing judge to establish whether Farley's 1998 Missouri burglary conviction was a person or nonperson felony by a preponderance of the evidence. Following this procedure resulted in elevating Farley's criminal history score and increasing the penalty for his current crime beyond the prescribed statutory maximum.
Because Kansas lacks a constitutional statutory scheme for a jury to make the requisite findings beyond a reasonable doubt when the elements of the Kansas statute are not wholly contained within the Missouri statute, Farley argues that the only proper relief is to remand this case to the district court with directions that he be resentenced using a criminal history score C rather than an A.
Although Farley challenged his criminal history score below, his Apprendi argument is made for the first time on appeal. Our Supreme Court has previously determined that issues implicating Apprendi may be raised for the first time on appeal because they: (1) involve only a question of law arising on proved or admitted facts and are determinative of the case; and (2) consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights. See State v. Gould, 271 Kan. 394, 404–05, 23 P.3d 801 (2000). Accordingly, we will consider Farley's claim.
Farley relies on the United States Supreme Court's recent opinion in Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L. Ed 2d 438 (2013). Prior to Descamps, our court rejected the applicability of the Apprendi rule to the classification of prior convictions for purposes of determining a defendant's criminal history score even when it was necessary for the sentencing judge to engage in additional factfinding. See State v. May, 39 Kan.App.2d 990, 996–97, 186 P.3d 847 (well-pled facts alleged in the charging documents establishing two 1980 burglaries as person felonies and eliminated the need for a jury to make this determination), rev. denied 287 Kan. 768 (2008); State v. Sloan, No. 105,145, 2012 WL 308537, at *3–4 (Kan.App.2012) (unpublished opinion) (K.S.A. 21–4711[d] does not implicate the principles of Apprendi because the issue of determining whether prior burglaries were of dwellings involves sentencing factors and not elements of the present crime), rev. denied 296 Kan. 1135; State v. Berwert, No. 100,226, 2009 WL 2436681, at * 5–6 (Kan.App.2009) (unpublished opinion) (underlying facts of defendant's previous burglary would now be considered burglary to a dwelling), rev. denied 290 Kan. 1096; State v. Burton, No. 89.923, 2003 WL 22479594 (Kan.App.2003) (unpublished opinion). In May, a panel of our court held that “whether May's prior burglaries were of a dwelling is a sentencing factor and not an element of the present crime so as to invoke the provisions of Apprendi.” May, 39 Kan.App.2d at 997; see Roose, 41 Kan.App.2d at 441 (proof beyond a reasonable doubt is required when a prior person felony is an element of the current crime, unlike when it is merely used to determine the defendant's criminal history score). The United States Supreme Court's decision Descamps changed all that.
In Descamps, the Court addressed how prior burglaries should be scored for criminal history purposes. The question before the Court was whether Descamps' prior burglary convictions in California could be used to enhance his sentence under the federal Armed Career Criminal Act (ACCA), see 18 U.S.C. § 924(e) (2012), following his later conviction in federal court of being a felon in possession of a firearm. The ACCA provided for increase sentences of federal defendants with three prior convictions for violent felonies, including burglary. Descamps had been convicted under the California burglary statute which provides that
“a ‘person who enters' certain locations ‘with intent to commit grand or petit larceny or any felony is guilty of burglary.’ That statute does not require the entry to have been unlawful in the way most burglary laws do. Whereas burglary statutes generally demand breaking and entering or similar conduct, California's does not. It covers, for example, a shoplifter who enters a store, like any customer, during normal business hours. [Citation omitted.] In sweeping so widely, the state law goes beyond the normal, ‘generic’ definition of burglary.” 133 S.Ct. at 2282.
The Supreme Court had previously addressed a similar sentencing issue in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In Taylor, 495 U.S. at 600, the Court held that when considering an enhanced sentence under the ACCA, the sentencing courts should look only at the statutory elements, not the underlying facts, of the crime for which the defendant was previously convicted to determine if it qualified to be used for enhancement purposes under the ACCA. The Descamps Court characterized this as the “formal categorical approach.” 133 S.Ct. at 2283.
In another pre-Descamps decision, Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Court recognized a “modified categorical approach” for cases in which the previous conviction was pursuant to a statute containing “multiple, alternative elements,” which effectively created several different crimes, at least one of which matches the elements of the generic offense. Descamps, 133 S.Ct. at 2285. In Shepard, the defendant had prior felony convictions in Massachusetts for burglary. “Generic” burglaries under the ACCA involved burglaries of buildings but not boats or other vehicles. But the Massachusetts burglary statute under which Shepard was convicted encompassed burglaries of boats and other vehicles. Thus, the Massachusetts statute was “divisible” in that Shepard could have been convicted of burglaries that fit the generic notion of burglary under the ACCA or under the provisions of the Massachusetts statute (boats or other vehicles) that go beyond the generic crime of burglary covered by the ACCA. In Shepard, the sentencing court could properly examine the Massachusetts plea agreement or the transcript of the colloquy between the sentencing judge and the defendant to determine whether Shepard's plea “was to the version of the crime in the Massachusetts statute (burglary of a building) corresponding to the generic offense.” Descamps, 133 S.Ct. at 2284 (citing Shepard, 544 U.S. at 25–26). The Court characterized this as the modified categorical approach, which may be used only when the defendant's prior conviction being examined was under a “divisible” statute. 133 S.Ct. at 2285. But the sentencing court would violate Apprendi by engaging in factfinding beyond the factfinding made at the original proceedings. Shepard, 544 U.S. at 26.
Returning to Descamps, unlike in Shepard, the issue was not which provision of a “divisible” statute the defendant previously violated. Thus, the modified categorical approach did not apply. Descamps, 133 S.Ct. at 2285. Because the California burglary statute was drawn more broadly than the generic notion of burglary—so broadly that it included shoplifters—convictions under it could not qualify as a generic burglary under the ACCA. Descamps, 133 S.Ct. at 2293.
The Descamps Court warned against the danger of consulting the facts in court documents to supplement the elements of the crime, noting that the meaning of the documents lacks certainty and may not be accurate:
“A defendant, after all, often has little incentive to contest facts that are not elements of the charged offense—and may have good reason not to. At trial, extraneous facts and arguments may confuse the jury. (Indeed, the court may prohibit them for that reason.) And during plea hearings, the defendant may not want to irk the prosecutor or court by squabbling about superfluous factual allegations.” 133 S.Ct. at 2289.
Based upon these cases, the modified categorical approach applies only when dealing with a divisible statute that sets out the elements of the crime in the alternative. When the modified categorical approach applies, the sentencing court may consider only the elements of the prior crime, not the facts of the prior crime.
Returning to our present case, the modified categorical approach does not apply. Although the Missouri burglary statute is divisible because it lists multiple, alternative elements, the issue is not which alternative was the basis for Farley's prior conviction. Thus, the sentencing court was confined to a categorical analysis in order to determine whether Farley's prior 1998 Missouri conviction should be considered a person felony for the purpose of calculating his present criminal history.
To qualify as a person felony in Kansas, Farley's Missouri burglary must have been of a dwelling. Conducting a categorical analysis of Farley's Missouri conviction, it is apparent it was based on a statute that covered conduct not limited to the entry of a dwelling. The Missouri statute under which Farley was convicted covered conduct that would not qualify as a person felony in Kansas.
But here, and contrary to Apprendi, the sentencing court did its own factfinding rather than submitting the issue to a jury. In doing so, the court examined documents beyond the Missouri charging documents, Farley's plea agreements, and the transcripts of the court's colloquy with Farley at his Missouri sentencings, to determine based on the preponderance of the evidence (not beyond a reasonable doubt) whether Farley's Missouri conviction should be treated as a person felony. The sentencing court erred in engaging in this procedure and in treating Farley's 1998 Missouri burglary conviction as a person felony in calculating his criminal history.
Farley's Missouri Attempted Reckless Second-degree Assault Conviction
One of Farley's prior convictions was in Missouri for attempted reckless second-degree assault. He asserts that because one cannot attempt to commit an offense recklessly, this Missouri conviction is not comparable to any Kansas offense. Therefore, the district court erred in classifying it as a person felony.
Whether this Missouri conviction is treated as a person or a nonperson felony is based upon how it would have been classified in Kansas as of the date the underlying crime was committed. See K.S.A. 21–4711(e); Williams, 291 Kan. 554, Syl. ¶ 4. If no comparable Kansas offense exists, the out-of-state conviction must be classified as a nonperson felony.
In State v. LaGrange, 21 Kan.App.2d 477, 481, 901 P.2d 44, rev. denied 258 Kan. 861 (1995), the Colorado statute under which LaGrange was previously convicted required that the defendant act with criminal negligence, while the Kansas statute required reckless conduct. Our court found Colorado and Kansas statutes to be sufficiently comparable for criminal history purposes even though the state-of-mind requirements were slightly different.
Farley was convicted in Missouri under Mo.Rev.Stat. § 565.060(3) (1994), which provided in part: “A person commits the crime of assault in the second degree if he ... (3)[r]ecklessly causes serious physical injury to another person.”
K.S.A. 21–3414(a)(2)(A) defines aggravated battery in Kansas as “recklessly causing great bodily harm to another person.”
K.S.A. 21–4711(e) only requires that the statutes be comparable, not identical. State v. Schultz, 22 Kan.App.2d 60, Syl. ¶ 1, 911 P.2d 1119 (1996). The elements of the Missouri crime do not need to be identical to the elements of a Kansas crime for them to be comparable. See Vandervort, 276 Kan. at 179. Here, we consider “serious physical injury” found in the Missouri statute to be comparable to “great bodily harm” found in the Kansas statute. We conclude that second-degree assault is comparable to the Kansas crime of aggravated battery, K.S.A. 21–3414. See State v. Maudlin, No. 104,062, 2011 WL 5143041 (Kan.App.2011) (unpublished opinion) (defendant's three prior out-of-state convictions for second-degree assault were most comparable to Kansas crime of aggravated battery and thus correctly classified as person felonies for purposes of calculating his criminal history score).
But Farley pled guilty to attempted second-degree assault in Missouri pursuant to Mo.Rev.Stat. § 565.060(3). The Missouri attempt statute, Mo.Rev.Stat. § 564.011 (1994), required that the defendant have the specific intent to complete the underlying crime. The Kansas attempt statute, K.S.A. 21–3101(a), has the same requirement. Under Kansas law one cannot attempt to commit a reckless crime. See State v. Shannon, 258 Kan. 425, 427–29, 905 P.2d 649 (1995); State v. Robinson, 256 Kan. 133, Syl. ¶ 1, 833 P.2d 764 (1994), (one cannot attempt to commit felony murder). Thus, Farley argues, if one cannot attempt to commit a reckless crime in Kansas, then it follows that there is no comparable Kansas offense for Farley's Missouri conviction for attempted second-degree assault and his Missouri conviction must be treated as a nonperson crime under K.S.A. 21–4711(e).
Of course, Farley pled guilty under the Missouri attempt statute that contains the same language that is found in the Kansas attempt statute and which he now argues creates a legal impossibility. But the protocol for the analysis of an out-of-state conviction to determine whether it was for a person or nonperson felony does not require the court to consider the attempt issue raised by Farley. The fact that Farley pled guilty to an attempted version of the crime of second-degree assault does not affect the crime's classification as a person felony. The district court properly classified Farley's conviction for attempted second-degree assault as a person felony.
The Use of Farley's Criminal History
Finally, Farley argues that the district court violated his constitutional rights by using his criminal history to calculate his sentence without following the procedural safeguards of Apprendi v.. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi requires that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum ... be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. However, a defendant's prior convictions are explicitly excluded from this requirement. 530 U.S. at 490.
The Kansas Supreme Court has recognized the continuing validity of this prior conviction exception to Apprendi's requirements. See State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We are duty bound to follow our Supreme Court's precedent absent some indication the court is departing from its previous position. See Ottinger, 46 Kan.App.2d at 655. There is no indication our Supreme Court is considering a departure from Ivory. See State v. Novotny, 297 Kan. 1174, 1191, 307 P.3d 1278 (2013) (reaffirming Ivory ). The district court did not violate Farley's constitutional rights when it used his criminal history score to calculate his sentence.
Affirmed in part, reversed in part, sentence vacated, and remanded for resentencing.