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State v. Buell

Supreme Court of Kansas

March 9, 2018

State of Kansas, Appellee,
v.
Derrick Buell, 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 adjudications 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 adjudication 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 adjudication shall be classified as a nonperson crime.

         3. For an out-of-state adjudication 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. 2011 Supp. 21-6811[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 crimes in the current case were committed, the Kansas criminal code did not have any offense that was comparable to the Florida crimes of burglary in the first degree or burglary in the second degree, and, therefore, a Florida juvenile adjudication for those Florida offenses must 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 818, 377 P.3d 1174 (2016).

         Appeal from Shawnee District Court; Richard D. Anderson, 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.

          Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

          Jodi Litfin, deputy district attorney, argued the cause, and Kyle Edelman, assistant district attorney, Chadwick J. Taylor, former district attorney, Michael F. Kagay, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

          OPINION

          Johnson, J.

         Derrick Buell seeks review of the Court of Appeals' determination that the district court correctly classified two prior Florida burglary juvenile adjudications as person felonies when calculating Buell's criminal history score under the revised Kansas Sentencing Guidelines Act (KSGA). State v. Buell, 52 Kan.App.2d 818, 377 P.3d 1174 (2016). Buell argues, inter alia, that the Florida crimes were not comparable to the person felony of burglary of a dwelling in the current Kansas criminal code because the elements of the out-of-state adjudications were broader than the elements of the Kansas reference offense. We agree. The Court of Appeals decision is reversed, Buell's sentence is vacated, and the matter is remanded to the district court to resentence Buell with a criminal history score that characterizes the Florida juvenile adjudications as nonperson felonies.

         Factual and Procedural Overview

         As a result of events taking place on January 20, 2012, Buell pleaded guilty to robbery and attempted kidnapping in the District Court of Shawnee County, Kansas. The presentence investigation (PSI) report calculated Buell's criminal history score as A, based in part on two prior juvenile adjudications in Florida. One adjudication was identified as a burglary of a dwelling and the other was referred to as burglary of a dwelling while armed.

         At sentencing, Buell objected to his criminal history score. Specifically, he argued that the burglary of a dwelling while armed adjudication should not have been classified as a person felony because Kansas has no comparable offense. The district court looked at the Florida charging document and case disposition before overruling Buell's objection. Thereupon, the ...


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