of the judgment of the Court of Appeals in an unpublished
opinion filed January 15, 2016.
BY THE COURT
classification of prior offenses for criminal history
purposes involves the interpretation of the revised Kansas
Sentencing Guidelines Act; statutory interpretation is a
question of law subject to unlimited review.
Prior out-of-state convictions are used in the calculation of
a person's criminal history score under the revised
Kansas Sentencing Guidelines Act. The State of Kansas shall
classify the out-of-state conviction as a person or nonperson
offense by referring 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.
an out-of-state conviction to be comparable to an offense
under the Kansas criminal code, within the meaning of K.S.A.
2017 Supp. 21-6811(e)(3) (the amended version of K.S.A.
21-4711[e]), the elements of the out-of-state crime cannot be
broader than the elements of the Kansas crime. In other
words, the elements of the out-of-state crime must be
identical to, or narrower than, the elements of the Kansas
crime to which it is being referenced.
Kansas has no comparable offense to the Missouri crime of
second-degree burglary, and, therefore, a prior conviction
for that Missouri offense must be classified as a nonperson
from Johnson District Court; Sara Welch, judge.
A. Kaul, of Kansas Appellate Defender Office, argued the
cause and was on the brief for appellant.
E. Minihan, assistant district attorney, argued the cause,
and Steven J. Obermeier, senior deputy district attorney,
Stephen M. Howe, district attorney, and Derek Schmidt,
attorney general, were with him on the brief for appellee.
State of Kansas seeks review of the Court of Appeals'
determination that the district court incorrectly sentenced
Roy D. Wetrich by misclassifying a 1988 Missouri burglary
conviction as a person felony and, thereby, miscalculating
his criminal history score as C, when it should have been E.
The State contends that the panel did not consider all of the
applicable Missouri statutory provisions and that it ignored
the precedent set by an earlier Court of Appeals opinion. We
affirm the result reached by the Court of Appeals, vacate the
sentence imposed, and remand for the district court to impose
a correct sentence for a person with a criminal history score
and Procedural Overview
acts committed between January 1, 2009 and April 24, 2009,
Wetrich was convicted by a Johnson County jury of kidnapping,
two counts of aggravated assault, criminal possession of a
firearm, possession of marijuana, violation of a protective
order, domestic battery, and intimidation of a witness. The
district court sentenced Wetrich to a controlling sentence of
124 months in prison, based on a criminal history score of C.
sentencing, Wetrich attempted to challenge the person-felony
classification of a prior 1988 Missouri conviction for
burglary used in his criminal history score. The district
court ruled that, because Wetrich had previously
unsuccessfully challenged the classification of that Missouri
conviction in a different case, he was collaterally estopped
from the current challenge. The Court of Appeals reversed
that ruling and ordered the district court to conduct a
resentencing hearing at which Wetrich could challenge the
classification of the prior Missouri conviction. State v.
Wetrich, 49 Kan.App.2d 34, 43-44, 304 P.3d 346, rev.
denied 298 Kan. 1208 (2013).
resentencing hearing on remand, Wetrich testified that the
structure he burglarized in Missouri was a mobile home but
that, at the time of entry, the structure was not being used
as a residence and was unoccupied. Nevertheless, the district
court compared the definition of "dwelling" in
K.S.A. 21-3110(7) with Missouri's statutory definition of
"inhabitable structure" and found them to be
sufficiently analogous to find the Missouri burglary
conviction comparable to Kansas' crime of burglary of a
dwelling. Consequently, the district court held that
Wetrich's prior Missouri burglary conviction was properly
scored as a person felony, resulting in a total criminal
history score of C.
Wetrich appealed to the Court of Appeals, and that court
again disagreed with the district court. Applying State
v. Dickey, 301 Kan. 1018, 1021, 350 P.3d 1054 (2015),
the panel first compared the Missouri burglary statute, Mo.
Rev. Stat. § 569.170 (1986), with the Kansas burglary
statute in effect when Wetrich committed his current crime of
conviction in 2009, K.S.A. 21-3715. It found that the
Missouri statutory definition of "inhabitable
structure" was broader than the K.S.A. 21-3110(7)
definition of "dwelling" and that the Missouri
language contained no element concerning the use of the
structure as a dwelling. State v. Wetrich, No. 112,
361, 2016 WL 197808, at *4-5 (Kan. App. 2016) (unpublished
panel noted that Mo. Rev. Stat. § 569.170 was a
divisible statute because it provided alternative elements
for committing the crime. Therefore, pursuant to Descamps
v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186
L.Ed.2d 438 (2013), the district court might have been
permitted to engage in a limited review of documents to
determine whether the Missouri conviction matched a Kansas
crime. But in this case, the panel determined that none of
the alternative elements in the Missouri statute matched the
Kansas definition of "dwelling, " and the district
court could not look outside those statutory elements to
engage in the type of judicial fact-finding which was held to
be prohibited by Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and
Descamps. Wetrich, 2016 WL 197808, at *5.
Accordingly, the Court of Appeals vacated Wetrich's
sentence and remanded for resentencing with the correct
criminal history score of E. 2016 WL 197808, at *5-6.
State petitioned for review, asserting that the panel had
cited to an incorrect section of the Missouri statute and
pointing out that in State v. Hill, No. 112, 545,
2015 WL 8590700 (Kan. App. 2015) (unpublished opinion),
rev. granted305 Kan. 1255 (2016), another Court of
Appeals panel had previously reached a different result on
the comparability of the Missouri burglary ...