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State v. Dickey

Supreme Court of Kansas

May 22, 2015

STATE OF KANSAS, Appellee,
v.
JEFF DICKEY, Appellant

As Amended June 1, 2015.

Page 1055

[Copyrighted Material Omitted]

Page 1056

Review of the judgment of the Court of Appeals in 50 Kan.App.2d 468, 329 P.3d 1230 (2014) .

Appeal from Saline District Court; RENE S. YOUNG, judge.

Judgment of the Court of Appeals vacating the sentence and remanding the case to the district court is affirmed. Judgment of the district court is reversed and remanded with directions.

SYLLABUS

BY THE COURT

1. K.S.A. 22-3504(1) specifically authorizes a court to " correct an illegal sentence at any time." This language has generally been interpreted to mean that an illegal sentence issue may be considered for the first time on appeal.

2. An " illegal sentence" is (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.

3. Under K.S.A. 22-3504(1), a defendant may challenge for the first time on appeal the classification of his or her prior convictions and/or the resulting criminal history score used to sentence him or her under the Kansas Sentencing Guidelines Act. Such a challenge necessarily raises a claim that the sentence imposed for the current conviction was illegal because the sentence did not comply with the applicable statutory provision regarding the term of punishment authorized for the current conviction.

4. A defendant's stipulation or failure to object at sentencing to the convictions listed in his or her presentence investigation report may prevent the defendant from later challenging the existence of the convictions listed in the report. But a stipulation or lack of an objection regarding how those convictions should be classified or counted as a matter of law for the purpose of determining the defendant's criminal history score will not prevent a subsequent challenge under K.S.A. 22-3504(1) of his or her prior convictions. Accordingly, to the extent that State v. Vandervort, 276 Kan. 164, 72 P.3d 925 (2003), State v. Goeller, 276 Kan. 578, 77 P.3d 1272 (2003), and State v. McBride, 23 Kan.App.2d 302, 930 P.2d 618 (1996), stand for the proposition that a subsequent legal challenge under K.S.A. 22-3504(1) is waived if the defendant stipulated or failed to object at sentencing to the classification of his or her prior convictions or the resulting criminal history score, those cases are specifically overruled.

5. Whether a prior conviction or adjudication was properly classified as a person or nonperson crime for criminal history purposes raises a question of law subject to unlimited review.

6. The classification of a prior burglary conviction or adjudication for criminal history purposes is controlled by K.S.A. 2014 Supp. 21-6811(d). Accordingly, the legal reasoning and holding of State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), is inapplicable to determining whether a prior burglary conviction or adjudication should be classified as a person or nonperson offense.

7. 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.

8. Under the facts of this case, the district court was constitutionally prohibited from classifying the defendant's prior burglary adjudication as a person felony under K.S.A. 2014 Supp. 21-6811(d) because doing so necessarily resulted from the district court making or adopting a factual finding ( i.e., the prior burglary involved a dwelling) that went beyond simply identifying the statutory elements that constituted the prior burglary adjudication. Because burglary of a " dwelling" (as that term is defined in K.S.A. 2014 Supp. 21-5111[k]) was not included within the statutory elements making up the defendant's burglary adjudication under K.S.A. 1991 Supp. 21-3715, the burglary adjudication should have been classified as a nonperson felony for criminal history purposes.

Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Anna M. Jumpponen, assistant county attorney, argued the cause, and Charles Ault-Duell, assistant county attorney, Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

OPINION

Page 1057

[301 Kan. 1020] ROSEN, J.:

The State appeals the Court of Appeals' decision in State v. Dickey, 50 Kan.App.2d 468');">50 Kan.App.2d 468, 329 P.3d 1230 (2014), vacating Jeff Dickey's 16-month prison sentence for theft (a severity level 9 nonperson felony) and remanding for resentencing. The Court of Appeals reached this decision after concluding that the district court violated Dickey's constitutional rights as described in 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by classifying Dickey's prior 1992 in-state juvenile adjudication for burglary as a person felony--resulting in Dickey having a criminal history score of A and placing him in the A-9 grid box of the Kansas Sentencing Guidelines.

The State argues that the Court of Appeals erred in reaching the merits of Dickey's Descamps / Apprendi argument (raised for the first time on appeal) because Dickey failed to challenge his criminal history score at sentencing and, in fact, stipulated to the accuracy of his criminal history shown in the presentence investigation (PSI) report prepared prior to his sentencing. Alternatively, the State argues that because Descamps involved the classification of a prior crime for purposes of imposing an enhanced sentence under the federal Armed Career Criminal Act (ACCA), 18 U.S.C. § 924 (2012), Descamps is simply inapplicable to the issue of how Dickey's prior juvenile adjudication should be classified ( i.e., person or nonperson) for purposes of determining his criminal history score and, in turn, sentencing him under the guidelines. Thus, according to the State, Descamps does not provide a basis for vacating Dickey's sentence.

In his cross-petition for review, Dickey argues that the Court of Appeals erred in concluding that the legal reasoning of State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (holding that all out-of-state crimes occurring prior to July 1, 1993--the date the Kansas Sentencing Guidelines Act (KSGA) was implemented--must be classified as nonperson crimes) was inapplicable to determining whether his 1992 in-state juvenile adjudication for burglary was properly classified as a person felony.

[301 Kan. 1021] Though we rely on a different legal basis than that cited by the Court of Appeals for reaching the merits of Dickey's Descamps / Apprendi argument, we agree with the panel's conclusion that Dickey's legal challenge to the classification of his prior burglary adjudication can be raised for the first time on appeal. Furthermore, we also agree with the panel that because the Kansas Sentencing Guidelines Act (KSGA) provides a specific method for classifying prior burglaries for criminal history purposes, see K.S.A. 2014 Supp. 21-6811(d), neither Murdock 's legal reasoning nor holding has any applicability to the classification issue raised in this case.

Finally, in order to classify a prior burglary conviction or adjudication as a person offense under K.S.A. 2014 Supp. 21-6811(d), a sentencing court must find that the prior burglary involved a " dwelling," i.e., " 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. 2014 Supp. 21-5111(k). But the burglary statute in effect when Dickey

Page 1058

committed his prior burglary did not require evidence showing that the structure burglarized was a dwelling. See K.S.A. 1991 Supp. 21-3715. Thus, determining 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. Accordingly, we agree with the Court of Appeals that classifying Dickey's prior burglary adjudication as a person felony violates his constitutional rights as described under Descamps and Apprendi. Consequently, his sentence must be vacated and his case remanded to the district court for resentencing with instructions that his prior burglary adjudication be classified as a nonperson felony.

Facts

On April 9, 2013, Dickey pled guilty to felony theft. A hearing was conducted on May 16, 2013, to consider sentencing on the theft conviction and whether to revoke Dickey's probation in four other cases.

[301 Kan. 1022] A PSI report was prepared prior to the hearing showing that Dickey had 55 prior convictions, including 3 person felonies, 12 nonperson felonies, and 40 nonperson misdemeanors. The individual who prepared the PSI report designated Dickey's criminal history score an " A" based on the finding that Dickey had three prior adult convictions or juvenile adjudications for person felonies. See K.S.A. 2014 Supp. 21-6809 (offender falls into criminal history category A when offender's criminal history includes three or more adult convictions or juvenile adjudications for person felonies, in any combination). One of the three offenses scored as a person felony was a 1992 juvenile adjudication for burglary, which occurred prior to the enactment of the KSGA and the classification of crimes in Kansas as either person or nonperson.

Under K.S.A. 2014 Supp. 21-6811(d), in order to classify the 1992 burglary adjudication as a person felony, the person who prepared the PSI would have had to conclude that the 1992 burglary involved a " dwelling," which is defined as " 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. 2014 ...


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