BY THE COURT
sentence is not an illegal sentence because of a change in
the law that occurs after the sentence is pronounced.
2019 statutory amendments to K.S.A. 22-3504 define a
"change in the law" as a statutory change or an
opinion by an appellate court of the State of Kansas, unless
the opinion is issued while the sentence is pending an appeal
from the judgment of conviction.
2019 statutory amendments to K.S.A. 22-3504 are procedural in
nature and shall be construed and applied retroactively.
While true changes in the law cannot transform a once legal
sentence into an illegal sentence, there might be
developments in the law that may shine new light on the
original question of whether the sentence was illegal when
State v. Dickey, 301 Kan. 1018, 350 P.3d 1054
(2015), does not constitute a change in the law as
contemplated by the 2019 statutory amendments to K.S.A.
Under K.S.A. 2018 Supp. 21-6811(e)(3), the State of Kansas
shall classify a prior out-of-state crime as person or
nonperson for purposes of calculating criminal history. In
classifying a prior out-of-state crime as person or
nonperson, comparable offenses under the Kansas Criminal Code
in effect on the date the current crime of conviction was
committed shall be referred to. 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
crime shall be classified as a nonperson crime.
2015 amendment to K.S.A. 21-6811(e)(3), as set forth in House
Bill 2053, requires the court to compare prior out-of-state
crimes to the Kansas Criminal Code in effect on the date the
current crime of conviction was committed. The Legislature
clearly stated its intent that the amendment set forth in
House Bill 2053 is procedural in nature and shall be applied
House Bill 2053 does not constitute a change in the law as
contemplated by K.S.A. 22-3504(c), as amended by L. 2019, ch.
State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018),
an opinion issued by the Kansas Supreme Court on March 9,
2018, the court held that in order to constitute a comparable
offense under K.S.A. 2017 Supp. 21-6811(e), a prior
out-of-state crime must have identical or narrower elements
than the Kansas offense to which it is being compared.
rule announced in State v. Wetrich, 307 Kan. 552,
412 P.3d 984 (2018), is a change in the law and shall not be
construed or applied retroactively.
from Edwards District Court; Bruce T. Gatterman, judge.
Kristen B. Patty, of Wichita, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek
Schmidt, attorney general, for appellee.
Arnold-Burger, C.J., Hill and Standridge, JJ.
remand, Gregory Lynn Gales appeals his sentence for
intentional second-degree murder and arson. Gales argues his
sentence is illegal because the district court incorrectly
classified his prior California juvenile burglary
adjudication as a person crime when calculating his criminal
history score. For the reasons stated below, we find the
district court correctly classified Gales' prior juvenile
adjudication as a person crime and, in turn, find Gales'
sentence was legal when imposed.
and Procedural Background
2001, a jury convicted Gales of one count each of intentional
second-degree murder and arson. At sentencing, the district
court determined Gales had a criminal history score of D,
based in part on a 1976 California juvenile burglary
adjudication that was classified as a person felony. The
resulting sentence was a controlling term of 286 months'
imprisonment. This court affirmed Gales' convictions on
appeal. See State v. Gales, No. 88, 321,
2003 WL 21981941 (Kan. App. 2003) (unpublished opinion)
(Gales I). Gales filed a petition for review, which
the Supreme Court denied. The conviction and sentence became
final when the mandate was issued on November 14, 2003.
2014, Gales filed a motion to correct an illegal sentence.
Gales argued his 1976 California burglary juvenile
adjudication should have been classified as a nonperson
offense for purposes of calculating his criminal history
score when he was sentenced. Had the prior juvenile
adjudication been classified as a nonperson offense, Gales
claimed his sentence for Count I would have been reduced from
267 months to 203 months. On March 25, 2015, the district
court denied Gales' motion. Gales filed a notice of
appeal on April 8, 2015.
22, 2015, the Kansas Supreme Court issued its decision in
State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015)
(Dickey I). At issue in Dickey I was the
procedure for deciding whether a prior in-state juvenile
adjudication that occurred before the Kansas Sentencing
Guidelines Act (KSGA) went into effect should be scored as a
person or nonperson offense. The court held the
constitutional rule established in Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), which was adopted by our Supreme Court in State
v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001), is
implicated when a district court enhances a defendant's
current sentence by making findings of fact that go beyond
merely finding the existence of a prior conviction or
adjudication. Based on Apprendi, the Dickey
I court held that the sentencing court is limited to
comparing the elements of the prior statute of conviction or
adjudication to the elements of the corresponding statute in
effect at the time the current crime of conviction was
committed. 301 Kan. at 1039-40.
making this comparison, the Dickey I court adopted
the Apprendi analysis used by the United States
Supreme Court in Descamps v. United States, 570 U.S.
254, 278, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). In this
analysis, the sentencing court first must determine whether
the statute of prior conviction or adjudication is divisible
or nondivisible. A statute is nondivisible if it contains
only one set of elements. If the prior statute contains only
one set of elements, the sentencing court is limited to using
the categorical approach in comparing the statutes, which
prohibits the court from looking beyond the elements of the
prior statute for purposes of comparing it to the elements of
the comparable statute in Kansas in effect when the current
crime of conviction was committed. Dickey I, 301
Kan. at 1037-39.
a nondivisible statute, a divisible statute contains
multiple, alternative versions of the crime. If the statute
is divisible, the sentencing court must determine if any of
the alternative versions of the crime require the same
elements as those of the corresponding Kansas statute in
effect when the current crime of conviction was committed. If
at least one of the alternative versions of the prior offense
matches the elements of the corresponding statute in effect
at the time the current crime of conviction was committed,
the sentencing court may use a modified categorical approach.
The modified categorical approach allows the sentencing court
to engage in limited fact-finding to determine which set of
statutory elements it should use for purposes of comparing
that prior conviction or adjudication with the elements of
the comparable offense in Kansas. So the modified categorical
approach lets the court look at a few underlying facts from
the prior conviction or adjudication, but not for sentencing
purposes-only to determine which alternative set of elements
in the prior statute it should use to compare it to the
current comparable offense. Dickey I, 301 Kan. at
1037-38 (citing Descamps, 570 U.S. at 257-67).
filed his appellate brief on March 17, 2016. Because the
district court made its decision to deny Gales' motion to
correct an illegal sentence before the Supreme Court issued
its decision in Dickey I, Gales relied on this new
decision to argue in his appellate brief that the case should
be remanded to the district court so it could make a legal
comparison of Gales' 1976 California juvenile
adjudication for burglary with the comparable Kansas version
of the burglary statute:
"The pre-sentence report on Mr. Gales, as amended,
indicates that Mr. Gales was adjudicated to have committed
burglary on January 1, 1976, in Placer County, California.
The worksheet indicates that it was a juvenile adjudication.
However, the determination of whether this is a person or
nonperson felony becomes murkier. The pre-sentence
investigation report specifically indicates that the Placer
County burglary is, 'Burglary (residential)'. The
report also indicates that the statute is K.S.A. 21-3715(a).
. . . K.S.A. 21-3715 has two categories of burglary,
differentiated by whether the structure is a
'dwelling' or not. If a building, manufactured home,
mobile home, tent or other structure is a 'dwelling',
it is a level 7 person felony. If the categories of
structure specifically mentioned is not 'a
dwelling', then it is a severity level 7
nonperson felony." (Emphasis added.)
argued the record on appeal was insufficient to determine
whether his prior California juvenile adjudication for
burglary was a person or nonperson offense when compared to
the version of the burglary statute in effect when the
current crime of conviction was committed. As such, Gales
submitted that the only "reasonable and practical
remedy" was to remand the issue to the district court to
make that determination.
State opposed remand, arguing Gales was procedurally barred
from receiving relief. In the event the panel decided Gales
was not procedurally barred, however, the State conceded that
addressing the merits would require a remand. Specifically,
the State noted that, with the exception of an entry in
Gales' 2001 criminal history worksheet described by the
court services officer as a 1976 juvenile adjudication for
"[b]urglary (residence)" committed in California,
there was nothing in the record to identify the statute upon
which Gales' prior juvenile adjudication was based. Thus,
if not procedurally barred, the State agreed with Gales that
the case should be remanded so the district court could
identify the California statute, compare that statute with
the version of the Kansas burglary statute in effect when
Gales committed his current crime of conviction, and
ultimately decide whether it was proper to classify the
California juvenile adjudication for burglary as a person
offense. Significantly, and although neither party identified
the California burglary statute, the State alleged in its
appellate brief that the unidentified statute was divisible
in nature and must be analyzed under the modified categorical
approach set forth in Dickey I when comparing it to
the Kansas statute.
opinion filed on September 30, 2016, a panel of this court
found no merit to the procedural arguments presented by the
State. State v. Gales, No. 114, 027, 2016 WL 5844573
(Kan. App. 2016) (unpublished opinion) (Gales II).
On the merits, the panel relied on the holding in Dickey
I to find that the district court violated Gales'
Sixth Amendment constitutional rights by summarily
classifying the 1976 California juvenile burglary
adjudication as a person offense for purposes of calculating
criminal history. Gales II, 2016 WL 5844573, at *2-3
(citing Dickey I). In support of this finding, the
Gales II panel appeared to rely, at least in part,
on the ...