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State v. Gales

Court of Appeals of Kansas

October 4, 2019

State of Kansas, Appellee,
v.
Gregory Lynn Gales, Appellant.

         SYLLABUS BY THE COURT

         1. A sentence is not an illegal sentence because of a change in the law that occurs after the sentence is pronounced.

         2. The 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.

         3. The 2019 statutory amendments to K.S.A. 22-3504 are procedural in nature and shall be construed and applied retroactively.

         4. 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 pronounced.

         5. 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. 22-3504.

         6. 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.

         7. The 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 retroactively.

         8. 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. 59, §15.

         9. In 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.

         10. The 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.

          Appeal 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.

          Before Arnold-Burger, C.J., Hill and Standridge, JJ.

          STANDRIDGE, J.:

         Following 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.

         Factual and Procedural Background

         In 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.

         In 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.

         On May 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.

         In 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.

         Unlike 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).

         Gales 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.)

         Gales 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.

         The 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.

         In an 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 ...


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