Review of the judgment of the Court of Appeals in an
unpublished opinion filed February 17, 2012.
Appeal from Riley District Court; DAVID L. STUTZMAN,
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed in part, sentence is vacated, and case is remanded with directions.
BY THE COURT
1. Resolution of a criminal history sentencing issue involves the interpretation of various provisions of the sentencing guidelines. The interpretation of statutes is a question of law, and, thus, the scope of review is unlimited.
2. Out-of-state convictions and juvenile adjudications are used in classifying a Kansas offender's criminal history score. The out-of-state crime for which the offender was actually convicted or adjudicated in the other state is used to classify the offender's Kansas criminal history score, regardless of any other crime that the factual allegations could have supported.
3. In designating an out-of-state crime as a person or nonperson felony, the sentencing court shall refer to comparable Kansas offenses.
4. In Kansas, dwelling burglaries are classified as person felonies, whereas non-dwelling burglaries are classified as nonperson felonies. Consequently, an out-of-state burglary must involve a dwelling to be classified as a person felony for purposes of calculating a Kansas criminal history score.
5. Where Florida's definition of a third-degree burglary makes that crime applicable solely to nondwelling structures, that crime is comparable to a Kansas nondwelling burglary and, therefore, it must be classified as a nonperson felony for criminal history purposes.
Shawn E. Minihan and Patrick H. Dunn, of Kansas Appellate Defender Office, were on the briefs for appellant.
Melissa Jones, legal intern, Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.
JOHNSON, J. MORITZ, J., not participating.
[299 Kan. 820] Johnson, J.
This is a consolidated appeal of two cases in which Gregory A. O'Connor pled nolo contendere to certain charges. He seeks review of the Court of Appeals decision to affirm the district court's classification of a prior Florida juvenile adjudication for third-degree burglary as a person felony for purposes of calculating his Kansas criminal history score. That designation increased the length of the aggregate sentence he is appealing here. Finding that the district court and Court of Appeals failed to use the specific crime for which O'Connor was actually adjudicated in Florida and instead impermissibly considered alleged facts that were not proved in the Florida adjudication, we vacate the sentences and remand to the district court for resentencing.
Factual and Procedural Overview
O'Connor entered nolo contendere pleas to aggravated robbery and possession of marijuana in case No. 09CR569 (No. 105,319) and to burglary and contributing to a child's misconduct in case No. 09CR729 (No. 105,320). At sentencing, O'Connor objected to that portion of his presentence investigation report (PSI) that classified a prior Florida juvenile adjudication as a person felony rather than a nonperson felony. The district court overruled O'Connor's objection, finding the person felony designation to be proper under Kansas law. That determination led to a criminal history score of B in the first case, and then adding that conviction to the calculation made the criminal history score for the second case an A. The court ran the felony sentences concurrently, resulting in a controlling term of 144 months' imprisonment.
O'Connor filed a timely appeal to the Court of Appeals, which affirmed the district court's determination that the prior Florida juvenile adjudication was a person felony. State v. O'Connor, 270 P.3d 1229, 2012 WL 686801, at *5 (Kan. App. 2012) (unpublished opinion). The panel noted that, under K.S.A. 21-4711(e), the State of Kansas classifies an out-of-state crime as person or nonperson [299 Kan. 821] by looking at comparable Kansas crimes. Here, the comparable Kansas crime that would permit O'Connor's Florida burglary adjudication to be classified as a person felony would be burglary of a dwelling, i.e., the structure O'Connor burglarized in Florida had to be a dwelling. 270 P.3d 1229, 2012 WL 686801, at *3-4 (citing K.S.A. 21-3715). The panel acknowledged that O'Connor's Florida plea agreement did not state that he burglarized a dwelling, but to the contrary, " his juvenile adjudication was for third-degree burglary, which would not satisfy Kansas' 'dwelling' requirement." 270 P.3d 1229, 2012 WL 686801, at *5.
Nevertheless, citing to prior Court of Appeals decisions, the panel declared that a Kansas sentencing court " may use underlying facts to determine if a burglary should be classified as a person or nonperson felony for criminal history purposes." 270 P.3d 1229, 2012 WL 686801, at *3. Then, the panel opined that, since the State's burden was only a preponderance of the evidence, it " merely needed to prove that it was more probably true than not true that O'Connor's prior burglary was of a dwelling." 270 P.3d 1229, 2012 WL 686801, at *4. The panel found that the State had met that burden of proof through two pieces of evidence--a Florida police report and a letter from O'Connor's mother--both of which contained allegations that O'Connor had broken into his ...