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State v. Fahnert

Court of Appeals of Kansas

April 28, 2017

State of Kansas, Appellee,
v.
Lee Horst Ralf Fahnert, Appellant.

         SYLLABUS BY THE COURT

         1.

         In classifying a prior out-of-state conviction as person or nonperson for purposes of scoring criminal history, the court shall refer to comparable offenses under the Kansas Criminal Code in effect on the date the current crime of conviction was committed. If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime. If Kansas does have a comparable offense at the time the defendant committed the current crime of conviction, the court must refer to that comparable offense in Kansas in deciding whether to classify the prior out-of-state conviction as a person or nonperson offense.

         2.

         To determine whether a Kansas offense is comparable to an out-of-state conviction, the offenses need only be comparable, not identical. A comparable crime is one that is similar in nature and covers a similar type of criminal conduct.

          3.

         If the current comparable offense under the Kansas Criminal Code criminalizes some conduct as a person offense and other conduct as a nonperson person offense, both the Kansas and United Stated Constitutions require further analysis to determine the propriety of classifying a prior out-of-state conviction as a person offense for purposes of scoring criminal history under K.S.A. 2016 Supp. 21-6811(e). In that circumstance, which arises under the Kansas burglary statute, K.S.A. 2016 Supp. 21-5807, at issue here, 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 the court goes beyond the fact of a prior out-of-state conviction and its statutory elements to make findings of fact that are then used to increase the penalty for the current crime of conviction beyond the prescribed statutory maximum.

         4.

         In referring to the current comparable offense under the Kansas Criminal Code, there are two ways to analyze prior convictions for scoring criminal history in calculating a current sentence without violating the constitutional protections in Apprendi. When the out-of-state statute of conviction is indivisible, meaning it sets out only a single set of elements, courts take a "categorical approach" and look only to the elements of the statute upon which the prior offense was based in referring to the comparable Kansas statute. When the out-of-state statute of conviction is divisible, meaning it sets out alternative sets of elements that represent more than one crime, courts take a "modified categorical approach" to determine which alternative set of statutory elements the court should use for its comparison under the categorical approach.

         5.

         The modified categorical approach is inapplicable to a divisible statute when none of the alternative elements match any elements of the current comparable crime.

          6.

         The vehicles and structures listed in Mo. Rev. Stat. § 569.010(2) (2000) are alternative factual ways to satisfy the location element of an inhabitable structure, which is an element required to prove the crime of second-degree burglary in an inhabitable structure under Mo. Rev. Stat. § 569.170 (2000), the statute in Missouri that is similar in nature and covers a similar type of criminal conduct to the Kansas burglary statute.

         7.

         Under the facts of this case, the district court was constitutionally prohibited from classifying the defendant's prior burglary conviction as a person felony under K.S.A. 2016 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 conviction.

         8.

         K.S.A. 2016 Supp. 21-6811(e) governs the classification of prior convictions as person or nonperson offense for purposes of scoring criminal history when the prior offense qualifies as both an out-of-state conviction and as a prior burglary conviction.

         Appeal from Johnson District Court; Brenda M. Cameron, judge. Sentence vacated and case remanded with directions.

          Kai Tate Mann, 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.

          Before Atcheson, P.J., Standridge and Schroeder, JJ.

          Standridge, J.

         Lee Horst Ralf Fahnert appeals the district court's classification of his 2007 Missouri burglary conviction as a person felony for purposes of scoring his criminal history. We find the district court's classification violated Fahnert's constitutional rights under 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), as applied by our state in State v. Dickey, ...


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