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State v. Moore

Supreme Court of Kansas

March 9, 2018

State of Kansas, Appellee,
v.
Charles H. Moore, Appellant.

         SYLLABUS BY THE COURT

         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. 2004 Supp. 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. At the time the crime in the current case was committed, the Kansas criminal code did not have any offense that was comparable to the 1984 Oregon crime of burglary in the first degree, and, therefore, the out-of-state conviction for that Oregon offense had to be classified as a nonperson felony under the revised Kansas Sentencing Guidelines Act.

         Review of the judgment of the Court of Appeals in 52 Kan.App.2d 799, 377 P.3d 1162 (2016).

         Appeal from Sedgwick District Court; Joseph Bribiesca, judge. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, sentence is vacated, and case is remanded with directions.

          Corrine E. Gunning, of Kansas Appellate Defender Office, argued the cause, and Joanna Labastida, of the same office, was on the briefs for appellant.

          Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

          OPINION

          Johnson, J.

         Charles H. Moore seeks review of the Court of Appeals' determination that the district court correctly classified a 1984 first-degree burglary conviction in Oregon as a person felony when calculating Moore's criminal history score under the revised Kansas Sentencing Guidelines Act (KSGA). State v. Moore, 52 Kan.App.2d 799, 377 P.3d 1162 (2016). Moore argues, inter alia, that the Oregon crime was not comparable to the person felony of burglary of a dwelling in the Kansas criminal code applicable to him because the elements of the out-of-state conviction were broader than the elements of the Kansas reference offense. We agree. The Court of Appeals decision is reversed, Moore's sentence is vacated, and the matter is remanded to the district court to resentence Moore with a criminal history score that characterizes the Oregon conviction as a nonperson felony.

         Factual and Procedural Overview

         On January 12, 2005, in the District Court of Sedgwick County, Kansas, Moore pled guilty to one count of aggravated indecent liberties with a child. The district court calculated a criminal history score of A, based in part on classifying a 1984 burglary conviction in Oregon as a person felony for KSGA purposes. As a result, Moore was sentenced to 494 months in prison.

         Much later, on December 24, 2014, Moore filed a motion to correct an illegal sentence, arguing that his pre-1993 out-of-state burglary conviction should have been scored as a nonperson felony. The Sedgwick ...


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