Opinion
No. 112,361.
01-15-2016
STATE of Kansas, Appellee, v. Roy D. WETRICH, Appellant.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM.
Roy Wetrich appeals the district court's classification of his 1988 Missouri burglary conviction as a person felony for criminal history purposes under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq.
The proper treatment of pre-KSGA in-state and out-of-state convictions for criminal history purposes has been the subject of multiple appeals before this court and our Supreme Court since the district court made its decision in this case and the parties filed their briefs herein. Consequently, some of the arguments presented by the parties have been rendered inconsequential. The dispositive argument raised by Wetrich is his claim that the district court's criminal history classification of his 1988 Missouri burglary conviction as a person felony violated his constitutional rights according to 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).
Guided by our Supreme Court's recent decision in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), we conclude the district court's criminal history classification of Wetrich's 1988 Missouri burglary conviction as a person felony violated his constitutional rights according to Apprendi and Descamps. Accordingly, we vacate the sentence imposed in this case and remand to the district court for resentencing.
Facts
A jury convicted Wetrich of multiple offenses in 2010. Wetrich's presentence investigation (PSI) report included a 1988 Missouri burglary conviction, which it classified as a person felony, rather than a nonperson felony, for criminal history purposes. This had the effect of changing Wetrich's criminal history from category E to category C.
Before sentencing, Wetrich moved to correct his criminal history. Wetrich claimed that the 1988 Missouri burglary conviction should have been classified as a nonperson felony.
At sentencing, the district court denied Wetrich's motion to correct his criminal history. The district court ruled that Wetrich was collaterally estopped from challenging the classification of the 1988 Missouri burglary conviction as a person felony because Wetrich had made, and the district court had rejected, the same criminal history challenge in an earlier case. The district court sentenced Wetrich to a controlling sentence of 124 months' imprisonment followed by 36 months' postrelease supervision.
Wetrich appealed his convictions and sentence to this court. See State v. Wetrich, 49 Kan.App.2d 34, 304 P.3d 346 (2013), rev. denied 298 Kan. 1208 (2013). Although this court affirmed Wetrich's convictions, this court vacated Wetrich's sentence and remanded for resentencing. 49 Kan.App.2d at 43–44. This court held that the district court erred in denying Wetrich the opportunity to challenge his criminal history score based upon collateral estoppel. 49 Kan.App.2d at 44. This court explained that by ruling that Wetrich was collaterally estopped from challenging his criminal history score, the district court overlooked the plain language of K.S.A. 21–4715(c), which allows criminal defendants to challenge their criminal history scores even if their criminal history had previously been established so long as the burden of proof shifts from the State to the defendant.
Upon remand, the district court held a hearing on Wetrich's motion challenging his criminal history score. At this hearing, Wetrich testified that he believed his 1988 Missouri burglary conviction should be classified as a nonperson felony because he broke into a trailer in which no one lived. Wetrich explained that he knew no one lived there because everything inside the trailer was packed in boxes and the beds inside the trailer were pushed up against a wall.
Wetrich's attorney argued that the district court could not equate the burglary of an “inhabitable structure” under Mo.Rev.Stat. § 569.170 (1988) to the burglary of a dwelling under K.S.A. 21–3715(a). Wetrich's attorney argued that just because there was property within the inhabitable structure did not mean that the inhabitable structure was a dwelling.
The State asserted that burglary of an “inhabitable structure” under Mo.Rev.Stat. § 569.170 (1988) was equivalent to burglary of a structure that was a dwelling under K.S.A. 21–3715(a) because the inhabitable structure Wetrich burglarized was a trailer that contained beds in it, and, thus, his 1988 Missouri burglary conviction was properly classified as a person felony. The State additionally admitted into evidence the complaint and journal entry from Wetrich's 1988 Missouri burglary conviction. These documents showed that Wetrich had been charged and convicted of two counts of second-degree burglary in 1988 in Missouri case CR2–88–66FX: one count for unlawfully entering “an inhabitable structure, to-wit: a trailer” and one count for unlawfully entering “a building, to-wit: a shed.”
The district court determined that Wetrich's 1988 Missouri burglary conviction was properly classified as a person felony. It stated it was basing its ruling “on the definition of dwelling” in K.S.A. 21–3110(b)(7). It concluded that an “inhabitable structure” as used in the Missouri statute of Wetrich's conviction, was within the definition of a “dwelling” in the Kansas burglary statute. It stated:
“The Court finds, based upon the fact that this does not have to be a currently inhabited structure, but it simply must be intended for human habitation, and the fact that the State of Missouri found this to be an inhabitable structure, and the fact that the defendant's testimony indicated that it was an inhabitable structure, that this was in fact a person's felony as set forth in the PSI, and the Court will deny the defendant's challenge for criminal history. The sentence previously imposed will remain in effect.”
Standard of review
Whether a prior conviction was properly classified as a person or nonperson crime for criminal history purposes raises a question of law subject to unlimited review. Dickey, 301 Kan. 1018, Syl. ¶ 5.
Analysis
Wetrich contends the district court's conclusion that the 1988 Missouri burglary conviction constituted a person felony was the product of judicial factfinding and this violated his constitutional rights pursuant to Apprendi and Descamps.
The State contends that “consideration of Wetrich's Apprendi-related argument for the first time on appeal” is improper because it “is unnecessary to serve the ends of justice or to prevent a denial of fundamental rights.” In Dickey, our Supreme Court determined that K.S.A. 22–3504(1) authorizes a legal challenge to the criminal history classification of a prior conviction for the first time on appeal. Dickey, 301 Kan. at 1034.
The State also contends the district court's classification of Wetrich's 1988 Missouri burglary as a person felony was proper based on Herrick v. State, 25 Kan.App.2d 472, 965 P.2d 844 (1998), rev. denied 266 Kan. 1108 (1998). In Herrick, this court reversed the district court's determination that Herrick's 1987 Kansas burglary could not be classified as a person felony for criminal history purposes because it was not a burglary of a dwelling. 25 Kan.App.2d at 479. The Herrick court held that the structure Herrick burglarized was a dwelling under K.S.A. 21–3715 and K.S.A. 21–3110(7) because there was evidence that the burglarized structure was a residence and was fit for human habitation. 25 Kan.App.2d 478–79. What the State does not account for in its reliance on Herrick is that Herrick was decided before the United States Supreme Court's decisions in Apprendi and Descamps. Accordingly, Herrick provides this court with no guidance regarding whether the district court violated Apprendi and Descamps in classifying Wetrich's 1988 Missouri burglary conviction as a person felony.
In Dickey, 301 Kan. 1018, our Supreme Court applied Apprendi and Descamps to consideration of the proper criminal history treatment of a 1992 Kansas burglary conviction. Dickey provides guidance to the proper treatment of Wetrich's 1988 Missouri conviction in light of Apprendi and Descamps.
In Dickey, our Supreme Court held:
“The constitutional protections described in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed 2d 435 (2000), are 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 statutory elements that made up the prior conviction.” 301 Kan. 1018, Syl. ¶ 7.
In Dickey, the district court ruled that Dickey's 1992 Kansas burglary conviction should be classified as a person offense because it involved the burglary of a dwelling under the current Kansas burglary statute. 301 Kan. at 1022–23. Dickey argued that the district court violated Apprendi and Descamps because the Kansas statute he was convicted under did not include any element regarding burglary of a dwelling. Thus, Dickey argued that the district court engaged in factfinding that went beyond recognizing that he had a prior burglary conviction in determining that his prior burglary conviction constituted a person felony for criminal history purposes. 301 Kan. at 1023.
On appeal to this court, we vacated Dickey's sentence and remanded for resentencing. This court held the district court could not have found that Dickey's prior burglary adjudication was a burglary of a dwelling and thus constituted a person felony because “burglary of a dwelling” was not even an element or alternative element of the 1992 Kansas burglary. State v. Dickey, 50 Kan.App.2d 468, 489, 329 P.3d 1230 (2014).
In affirming this court, our Supreme Court compared the elements of Dickey's 1992 Kansas burglary adjudication to its current comparable statute. The court noted that K.S.A. 21–3715 did not contain an element requiring that the structure the defendant burglarized was a dwelling, but under K.S.A.2014 Supp. 21–6811(d), the amended version of K.S.A. 21–4711(d), a defendant must have burglarized a dwelling to count a defendant's prior burglary conviction as a person felony. 301 Kan. at 1039. Because a defendant must have burglarized a “dwelling” to constitute a person offense and K.S.A. 21–3715 included no such language, the Dickey court held that determining whether Dickey's prior burglary adjudication involved a dwelling would be constitutionally prohibited under Descamps and Apprendi. 301 Kan. at 1039. The Dickey court stated that by making the dwelling determination, the district court necessarily made or adopted a factual finding “that went beyond simply identifying the statutory elements that constituted the prior burglary adjudication.” 301 Kan. 1018, Syl. ¶ 8. Accordingly, the Dickey court held that Dickey's prior burglary adjudication should have been classified as a nonperson felony for criminal history purposes.
With this background we now turn to the facts of this case. The first step in the process of evaluating whether the district court's ruling herein violated Apprendi and Descamps is to compare the 1988 Missouri burglary statute to the Kansas burglary statute in effect when Wetrich committed the current offense.
The Missouri burglary statute applicable to Wetrich's 1988 conviction, Mo.Rev.Stat. § 569.170 (1988) provides, in part: “A person commits the offense of burglary in the second degree when he or she knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.” (Emphasis added.)
Mo.Rev.Stat. § 569.010(2) (1988) defines “inhabitable structure” as a place of business or a place “[w]here people assemble for purposes of business, government, education, religion, entertainment or public transportation.”
The Kansas burglary statute in effect when Wetrich committed the offenses associated with this case was K.S.A. 21–3715. It provides, in part:
“Burglary is knowingly and without authority entering into or remaining within any:
“(a) Building, manufactured home, mobile home, tent or other structure which is a dwelling, with intent to commit a felony, theft or sexual battery therein; [or]
“(b) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein.
....
“Burglary as described in subsection (a) is a severity level 7, person felony. Burglary as described in subsection (b) is a severity level 7, nonperson felony.” (Emphasis added.)
Based on the plain language of K.S.A. 21–3715, the difference between a person and nonperson felony is whether the defendant burglarized a dwelling. A dwelling is “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. 21–3110(7).
Mo.Rev.Stat. § 569.170 (1988) does not contain any element concerning the burglary of a dwelling. Moreover, an “inhabitable structure” is defined to include a broad range of structures that are not “dwellings” under Kansas law.
Mo.Rev.Stat. § 569.170 (1988) is a divisible statute because it provides that a person may commit a burglary by knowingly and unlawfully entering or remaining “in a building or inhabitable structure for the purpose of committing a crime therein.” According to Descamps, when looking at a defendant's prior conviction under a divisible statute, the district court may compare the alternative element used to convict the defendant during his or her prior conviction to the elements of the generic statute. Descamps, 133 S.Ct. at 2281.
However, even though Mo.Rev.Stat. § 569.170 (1988) is a divisible statute, because none of the alternative elements in Mo.Rev.Stat. § 569.170 (1988) match the essential “dwelling” element in K.S.A. 21–3715(a), the district court was prohibited from looking outside the elements of the comparable offenses without violating Apprendi and Descamps.
To reach its conclusion classifying Wetrich's 1988 Missouri burglary conviction as a person felony, the district court impermissibly engaged in factfinding. The district court heard testimony from Wetrich about his 1988 Missouri burglary conviction and then used this testimony in determining that the prior conviction was a person felony for criminal history purposes. The district court even ruled that Wetrich's prior burglary conviction was of a dwelling as stated under K.S.A. 21–3715(a) because Wetrich testified that people might have previously lived in the trailer and that there were beds inside the trailer. This factfinding “went beyond simply identifying the statutory elements that constituted the prior burglary adjudication” given that “dwelling” was not even an element of Mo.Rev.Stat. § 569.170 (1988). Dickey, 301 Kan. 1018, Syl. ¶ 8. Accordingly, the district court's factfinding violated Wetrich's rights pursuant to Apprendi and Descamps.
Wetrich's 1988 Missouri conviction should have been classified as a nonperson felony and his criminal history score should have been a category E, not a category C.
Sentence vacated; remanded for resentencing.