BY THE COURT
order to follow the revised Kansas Sentencing Guidelines
properly, a sentencing court must know two things: the
severity level of the crime of conviction and the criminal
history of the person committing that crime.
According to the revised Kansas Sentencing Guidelines, crimes
against persons are more serious and thus lead to longer
sentences than other crimes.
Whether an out-of-state conviction is treated as a person or
nonperson crime is based on the classification of the
"comparable" Kansas offense in effect at the time
the current offense was committed. If Kansas does not have a
comparable offense, the out-of-state conviction is classified
as a nonperson crime.
an out-of-state conviction to be comparable to an offense
under the Kansas criminal code, the elements of the out-of-
state crime cannot be broader than the elements of the Kansas
crime. 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 compared.
from Johnson District Court; Timothy P. McCarthy, judge.
J. Eddinger, of Kansas Appellate Defender Office, for
E. Minihan, assistant district attorney, Stephen M. Howe,
district attorney, and Derek Schmidt, attorney general, for
Bruns, P.J., Hill, J., and Walker, S.J.
appeal, we must decide if the sentencing court erred when it
calculated Kenny Bruce Walter's criminal history score
when it scored two Missouri burglary convictions as person
felonies. By using the "identical or narrower" test
recently adopted by our Supreme Court, our legal conclusion
differs. We hold that the elements of the Missouri statutes
for first- and second-degree burglary are not identical to,
nor are they narrower than, the Kansas burglary statute.
Thus, the sentencing court erred by establishing and using an
incorrect criminal history score. We vacate Walter's
sentence and remand for resentencing with directions that his
two Missouri convictions must be classified as nonperson
felonies when computing his criminal history score.
objected to the convictions' classifications.
pled guilty to aggravated battery, a severity level 7 person
felony. Citing State v. Dickey, 301 Kan. 1018, 350
P.3d 1054 (2015), he objected to the classification of his
two Missouri burglary convictions as person felonies, The
sentencing court overruled his objection and, based on three
person felonies in Walter's criminal history, found his
criminal history score was A. The court then sentenced Walter
to 30 months in prison.
appeal, Walter contends that his Missouri convictions are not
comparable to any form of burglary in Kansas. In opposition,
the State makes alternative arguments, first contending that
the Missouri and Kansas burglary statutes are comparable and
then arguing the term "inhabitable structure" found
in the Missouri statute actually contains alternative
elements, not alternative means and is thus comparable. By