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State v. Wetrich

Supreme Court of Kansas

March 9, 2018

State of Kansas, Appellee,
Roy D. Wetrich, Appellant.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed January 15, 2016.


         1. The 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.

         2. 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.

         3. For 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.

         4. 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 offense.

         Appeal from Johnson District Court; Sara Welch, judge.

          Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Shawn 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.

          Johnson, J.

         The 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 of E.

         Factual and Procedural Overview

         For 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.

         Before 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).

         At the 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.

          Again, 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 opinion).

         The 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.

         The 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 ...

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