[Copyrighted Material Omitted]
Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge.
BY THE COURT
1. When calculating a defendant's criminal history score, any municipal ordinance violations comparable to qualifying misdemeanors under Kansas law shall be considered and scored. K.S.A. 2013 Supp. 21-6810(d)(5).
2. When determining whether a municipal ordinance violation is comparable with any misdemeanor under Kansas law, such comparison must be done in accordance with the penalty provisions in effect at the time the crime was committed.
3. In determining what constitutes a comparable offense under the revised Kansas Sentencing Guidelines Act, K.S.A. 2013 Supp. 21-6801 et seq., it is necessary to compare the elements of each offense, but the elements do not need to be identical. The essential questions are whether the offenses are similar in nature and cover similar conduct.
4. Every three prior adult convictions of class A and class B person misdemeanors are to be aggregated into one adult person felony conviction when calculating a defendant's criminal history. These convictions include any municipal ordinance violations comparable to class A and class B adult person misdemeanors.
5. Under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. A narrow exception exists for the fact of a prior conviction because of the procedural safeguards which attach to such fact. As a result, tabulating a defendant's prior convictions to determine a criminal history score, which usually has the effect of increasing a defendant's sentence, does not violate a defendant's jury trial rights. However, when the district court is required to rely on facts outside of the mere fact of a prior conviction, then Apprendi is implicated.
6. When the determination of whether a prior conviction qualifies as a sentence enhancer requires factual findings beyond the fact of the prior conviction itself, a sentencing court must use one of two approaches--the categorical approach or the modified categorical approach. Under the categorical approach, the sentencing court is to simply compare the elements of the statute forming the basis of the defendant's prior conviction with the elements of the corresponding " generic" crime. If the elements of the prior conviction are the same as or narrower than the elements of the corresponding " generic" crime, then the prior conviction may be counted as a predicate offense for sentence enhancement purposes.
7. The modified categorical approach applies when the statute defining the elements of the prior conviction is broader than the corresponding " generic" offense. However, this approach may only be utilized when the prior conviction involves a " divisible statute," meaning a statute which comprises multiple, alternative versions of the crime, at least one of which matches the elements of the corresponding " generic" offense. In such an instance, the sentencing court cannot tell upon which version of the prior statute the defendant's conviction was based and therefore is permitted to look beyond the elements in the statutes and examine limited extra-statutory materials to determine which of a prior statute's alternative elements formed the basis of the defendant's prior conviction. Such extra-statutory materials 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.
8. The modified categorical approach may not be used if the prior statute is not divisible. Even if the statute is divisible, in some cases the modified categorical approach may not apply if none of the alternative elements in the prior statute matches any elements of the corresponding generic crime.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and POWELL, JJ.