Opinion
107,406.
07-24-2015
STATE of Kansas, Appellee, v. Mark PROSPER, Appellant.
Christina M. Kerls, of Kansas Appellate Defender Office, was on the brief for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
Christina M. Kerls, of Kansas Appellate Defender Office, was on the brief for appellant.
Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
MEMORANDUM OPINION
JOHNSON, J.:
Mark Prosper pled guilty to and was convicted of one count of driving under the influence (DUI) as a third-time offense, one count of driving while a habitual violator, and one count of possession of cocaine. He was sentenced to a total of 28 months for the three convictions. Prosper appealed, raising three sentencing issues; (1) The district court should have applied the 2011 amendment to K.S.A. 8–1567, altering the look-back period for prior DUIs, which would have resulted in him being sentenced as a second-time DUI offender; (2) the district court erred in classifying his 1987 attempted burglary conviction as a person felony for criminal history purposes; and (3) the district court violated the Sixth and Fourteenth Amendments to the United States Constitution when it used his prior convictions to increase his sentence without requiring them to be proved to a jury beyond a reasonable doubt. The Court of Appeals affirmed his sentences, and Prosper petitioned this court for review.
We granted review, and based on our recent decisions in State v. Reese, 300 Kan. 650, 333 P.3d 149 (2014), and State v. Dickey, No. 110,245, 2015 WL 2445810 (Kan.2015), we vacate Prosper's sentences and remand with directions for resentencing.
Factual and Procedural Overview
Prosper pled guilty to DUI and driving while a habitual violator for an offense that occurred on November 20, 2010. The criminal complaint listed two prior DUI convictions that occurred on May 13, 1987, and October 22, 2010. Prosper also pled guilty to possession of cocaine in a separate case.
The presentence investigation report (PSI) listed a 1987 conviction for attempted burglary and classified it as a person felony for criminal history purposes. The PSI also confirmed the two prior DUI convictions listed in the complaint. Prosper did not object to the PSI, and both he and his counsel agreed that the PSI accurately reflected Prosper's criminal history.
On December 15, 2011, Prosper was sentenced to 12 months in jail with a $1,500 fine for a third-offense DUI; he was sentenced to 12 months in jail for driving while a habitual violator; and he was sentenced to 28 months in prison for the possession of cocaine conviction. The court directed that all of the sentences run concurrent to each other. As a result, Prosper was subject to a controlling 28–month prison sentence.
Prosper appealed, first arguing that the 2011 statutory amendment to K.S.A. 8–1567 should have been applied at his December 15, 2011, sentencing. That amendment provided that only convictions occurring on or after July 1, 2001, were to be considered when determining whether a defendant should be sentenced as a first, second, third, fourth, or subsequent offender. See K.S.A.2011 Supp. 8–1567(j)(3). The Court of Appeals disagreed, holding that the amendment was prospective and only applied to DUIs committed after July 1, 2011, the amendment's effective date. State v. Prosper, No. 107,406, 2013 WL 1444630, at *4 (Kan.App.2013) (unpublished opinion), rev. granted 300 Kan. 1106 (2014).
Prosper also argued that the district court erred in classifying his 1987 attempted burglary conviction as a person felony because the element of whether he attempted to burglarize a dwelling was not decided by a jury, as required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). But the Court of Appeals held that because Prosper did not object to his criminal history at sentencing, he was prevented from challenging the classification of his 1987 burglary conviction on appeal. Prosper, 2013 WL 1444630, at *6.
Finally, Prosper argued that the district court improperly considered his prior criminal history to enhance his sentence, in violation of Apprendi. The Court of Appeals summarily rejected this argument pursuant to State v. Ivory, 273 Kan. 44, 41 P.3d 781, Syl., 273 Kan. 44, 41 P.3d 781 (2002), which held that Apprendi did not apply to a presumptive sentence that was based, in part, on a defendant's criminal history score.
We granted Prosper's petition for review pursuant to K.S.A. 20–3018(b), obtaining jurisdiction under K.S.A. 60–2101(b).
Application of K.S.A. 2011 Supp. 8–1567(j)
Prosper argues that the 2011 amendment to K.S.A. 8–1567 was a procedural change that should have been applied retroactively at his sentencing. We agree that K.S.A.2011 Supp. 8–1567(j)(3) should have been applied at Prosper's sentencing but not for the reason he suggests.
Standard of Review
A determination of which statute applies at Prosper's sentencing—the one in effect at the time he was sentenced or the one in effect at the time he committed his crime—is a question of statutory interpretation, which is subject to unlimited review. Reese, 300 Kan. at 652–53, 333 P.3d 149.
Analysis
In Reese, which was decided after the Court of Appeals' decision herein, we held that “the plain statutory language and the unique nature of the DUI sentencing scheme dictate that the number of prior DUI convictions applicable to the current DUI sentence is to be calculated at the time of sentencing on the current conviction .” 300 Kan. at 651, 333 P.3d 149. We therefore concluded that K.S.A.2011 Supp. 8–1567(j)(3) applies to all persons who are sentenced for DUI on or after July 1, 2011, even if the person committed the current DUI prior to that date. 300 Kan. at 658–59, 333 P.3d 149.
Our holding in Reese controls the outcome of this issue on appeal. Here, the district court erred in sentencing Prosper as a third-time DUI offender because his sentencing took place after July 1, 2011, the effective date of K.S.A.2011 Supp. 8–1567(j)(3), and his May 13, 1987, DUI conviction occurred before the look-back date of July 1, 2001. Accordingly, Prosper should be resentenced as a second-time offender under K.S.A.2011 Supp. 8–1567(j)(3).
Classification of 1987 Attempted Burglary Conviction
Prosper argues that pursuant to Apprendi, a determination of whether his 1987 attempted burglary conviction involved a dwelling, thereby allowing it to be classified as a person felony for purposes of calculating his criminal history score, must be submitted to a jury and proven beyond a reasonable doubt. Pursuant to our recent holding in Dickey, we agree.
Standard of Review
Whether a prior conviction was properly classified as a person or nonperson crime for purposes of calculating criminal history raises a question of law subject to unlimited review. State v. Murdock, 299 Kan. 312, 314, 323 P.3d 846 (2014).
Analysis
In 1987, burglary was defined as “knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.” K.S.A. 21–3715 (Ensley 1981). There was no distinct category for buildings occupied as a dwelling. But, pursuant to K.S.A.2011 Supp. 21–6811(d), in order to classify the 1987 attempted burglary conviction as a person felony for current sentencing purposes, the prior attempted burglary must have involved a dwelling. Moreover, under the statute in effect at Prosper's sentencing, K.S.A.2011 Supp. 21–6811(d), the State had to prove the classification facts of the prior attempted burglary by a preponderance of the evidence.
Here, the Court of Appeals acknowledged that the burglary statute in effect in 1987 did not distinguish between dwellings and nondwellings. But the panel held that because Prosper did not object to the PSI that classified the attempted burglary conviction as a person felony, the State's duty to present evidence to establish that fact was not triggered. 2013 WL 1444630, at *5. In other words, the Court of Appeals reasoned that the only evidence of record was the PSI, which classified the attempted burglary conviction as a person felony. 2013 WL 1444630, at *5.
Then, relying on State v. May, 39 Kan.App.2d 990, 996–97, 186 P.3d 847, rev. denied 287 Kan. 768 (2008), and State v. Sloan, No. 105, 145, 2012 WL 308537, at *3–4 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. 1135 (2013), the Court of Appeals held that the determination of whether Prosper's prior attempted burglary conviction was of a dwelling was a sentencing factor, rather than an element of the crime. Consequently, the panel found that the provisions of Apprendi were not implicated, i.e., the facts surrounding the prior attempted burglary conviction did not need to be proved to a jury beyond a reasonable doubt. Prosper, 2013 WL 1444630, at *6. Accordingly, the panel concluded that the district court had properly determined, by a preponderance of the evidence, that Prosper's prior attempted burglary conviction should be scored as a person felony for purposes of determining his criminal history. 2013 WL 1444630, at *6.
In Dickey, the defendant pled guilty to one count of felony theft. Dickey's PSI listed a 1992 juvenile adjudication for burglary and scored it as a person felony, even though the 1992 burglary statute did not distinguish between dwellings and nondwellings. Like Prosper, Dickey made no objection to the. PSI. In addition, at sentencing, he said he had no objection to his criminal history score of A which was based, in part, on the person felony classification assigned to his 1992 juvenile adjudication for burglary. The district court thereafter sentenced Dickey to 16 months' imprisonment based on his criminal history score.
Dickey appealed, arguing that the district court's classification of his 1992 burglary adjudication violated his Sixth Amendment rights under Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. Under Apprendi, “[o]ther 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. In Descamps, the United States Supreme Court determined that Apprendi is implicated when a district court enhances a defendant's sentence based on a finding that goes beyond the existence of a prior conviction or the statutory elements that comprised the prior conviction. 133 S.Ct. at 2288–89 (“[T]he court did just what we have said it cannot: rely on its own finding about a non-elemental fact to increase a defendant's maximum sentence.”).
The Dickey panel held that, pursuant to Descamps, the “district court was precluded from looking beyond the statutory elements of Dickey's 1992 prior burglary adjudication to determine whether it would now qualify as a person felony for purposes of enhancing the penalty for his current crime of felony theft beyond the statutorily prescribed maximum.” State v. Dickey, 50 Kan.App.2d 468, 472, 329 P.3d 1230 (2014).
The State petitioned this court for review, first arguing that the Court of Appeals erred in reaching the merits of Dickey's arguments. The State asserted that Dickey had failed to challenge his criminal history score at sentencing and had actually stipulated to the accuracy of the PSI. The State further argued that Descamps was inapplicable because it involved a federal sentencing enhancement statute.
We affirmed the Court of Appeals decision, first holding that Dickey's legal challenge to the classification of his prior burglary adjudication could be raised for the first time on appeal pursuant to K.S.A. 22–3504, which authorizes a court to correct an illegal sentence at any time. Dickey, 350 P.3d 1054, 2015 WL 2445810, at * 12. Second, we held that because the burglary statute in effect when Dickey committed his prior burglary did not require evidence showing that the burglary was of a dwelling, the district court's determination of whether Dickey's prior burglary involved a dwelling “would necessarily involve judicial factfinding that goes beyond merely finding the existence of a prior conviction or the statutory elements constituting that prior conviction.” 350 P.3d 1054, 2015 WL 2445810, at *3. Therefore, we agreed with the Court of Appeals, holding that “classifying Dickey's prior burglary adjudication as a person felony violates his constitutional rights as described under Descamps and Apprendi. ” Dickey, 350 P.3d 1054, 2015 WL 2445810, at *3.
Dickey is squarely on point with the issue presented herein. First, pursuant to K.S.A. 22–3504(1), Prosper's legal challenge to the classification of his 1987 attempted burglary conviction, for purposes of lowering his criminal history score, can be raised for the first time on appeal. See Dickey, 350 P.3d 1054, 2015 WL 2445810, at *3. Second, because the burglary statute in effect at the time of Prosper's prior conviction did not contain an element requiring that the burglarized structure be a dwelling, the district court was prohibited, by the Sixth Amendment to the United States Constitution, from classifying Prosper's prior attempted burglary conviction as a person felony because “doing so would have necessarily resulted from the district court making or adopting a factual finding that went beyond simply identifying the statutory elements that constituted the prior [attempted] burglary [conviction].” 350 P.3d 1054, 2015 WL 2445810, at *16.
Therefore, pursuant to Dickey, Prosper's sentences must be vacated and the case remanded to the district court for resentencing with directions that Prosper's 1987 attempted burglary conviction be classified as a nonperson felony for purposes of calculating his criminal history score.
Apprendi Challenge to Sentence
Lastly, Prosper argues that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated because his prior convictions were not included in the complaint or proven to the jury beyond a reasonable doubt as required by Apprendi. Prosper concedes his argument is defeated by our holding in Ivory. Moreover, he provides us with no reason or basis to revisit our Ivory holding and we decline to do so.
In conclusion, Prosper's sentences are vacated and the matter is remanded for DUI sentencing as a second offense and for criminal history scoring on the prior attempted burglary conviction as a nonperson felony.
Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part; Prosper's sentence is vacated, and the case is remanded for resentencing in accordance with the directions contained herein.