State v. Baker

1

NOT DESIGNATED FOR PUBLICATION

No. 111,089

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TERRAN BAKER,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed December 11,
2015. Sentence vacated and remanded for resentencing.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Edmond Brancart, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., LEBEN and BRUNS, JJ.

Per Curiam: On appeal, Terran Baker contends the district court erred at
sentencing by classifying his 1990 Kansas juvenile adjudication for burglary as a person
felony. Baker incorrectly maintains that all pre-KSGA convictions and adjudications
should be considered nonperson offenses. However, Baker correctly asserts the
classification of his 1990 burglary adjudication as a person felony violated his
constitutional rights. In addition, Baker correctly points out—and the State concedes—
that no restitution hearing was held in this case. Thus, we vacate Baker's sentence and
remand this case for resentencing.
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FACTS

On June 21, 2012, Baker pled guilty to one count of voluntary manslaughter and
one count of aggravated battery. Baker's presentence investigation report (PSI) indicated
that on May 30, 1990, he had been adjudicated as a juvenile for burglary. Baker objected
to his criminal history but did not specifically object to the classification of the juvenile
adjudication for burglary. The district court denied Baker's objection and relied on
information provided in the PSI.

Finding that Baker had a criminal history score of "C," the district court sentenced
Baker to 102 months in prison. Moreover, the district court ordered that restitution be left
open for 30 days. Subsequently, without conducting a hearing, the district court entered
an order requiring Baker to pay $5,000 in restitution. Thereafter, Baker appealed his
sentence.

ANALYSIS

1990 Juvenile Adjudication for Burglary

On appeal, Baker contends that the district court erred in classifying his 1990
Kansas juvenile adjudication as a person offense for criminal history purposes.
Specifically, Baker argues that all pre-KSGA convictions and adjudications should be
considered nonperson offenses because when the prior offenses were committed Kansas
law did not distinguish between person and nonperson offenses. To support his argument,
Baker relies on State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by
Supreme Court order September 19, 2014. In response, the State argues that Baker failed
to preserve this issue for appeal because he is raising it for the first time on appeal. The
State also responds that Baker misinterprets Murdock.

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It should first be noted that although Baker did not challenge the person
classification of the 1990 Kansas juvenile burglary adjudication in the district court, he
may do so for the first time on appeal under State v. Dickey, 301 Kan. 1018, 350 P.3d
1054 (2015). In Dickey, our Supreme Court held that "a legal challenge to the
classification of a prior adjudication for purposes of lowering [a defendant's] criminal
history score . . . can be raised for the first time on appeal pursuant to K.S.A. 22-3504(1).
[Citation omitted.]" 301 Kan. at 1034. Thus, we will consider the merits of Baker's
arguments.

"Whether a prior conviction should be classified as a person or nonperson offense
involves the interpretation of the [Kansas Sentencing Guidelines Act (KSGA)].
Interpretation of a statute is a question of law over which appellate courts have unlimited
review. [Citations omitted.]" State v. Keel, 302 Kan. ___, 357 P.3d 251, 259 (2015). In
Keel, the Kansas Supreme Court held "the legislature intended for all prior convictions
and juvenile adjudications—including convictions and adjudications occurring before
implementation of the KSGA—to be considered and scored for purposes of determining
an offender's criminal history score." 357 P.3d at 264. The Keel court acknowledged that
Kansas law did not classify pre-KSGA crimes as person or nonperson. Accordingly, the
Keel court explained that "a pre-KSGA conviction and/or adjudication must be classified
as either a person or nonperson offense by comparing the criminal statute under which
the prior offense arose to the comparable post-KSGA criminal statute." 357 P.3d at 264-
65.

The Keel court further provided that "the comparable post-KSGA criminal statute
is the one that was in effect at the time the current crime of conviction was committed."
357 P.3d at 265; see also State v. Luarks, No. 106,643, 2015 WL 6594731, *3-4 (Kan.
2015) (relying on Keel to reject argument that all pre-KSGA offenses should be
nonperson offenses). Thus, we find that Baker's argument that all pre-KSGA convictions
should be nonperson offenses to be misplaced.
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Next, Baker maintains that the district court's classification of his 1990 burglary
adjudication as a person crime violated his constitutional rights under Descamps v.
United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because it was
based on a fact that was never proven to a jury beyond a reasonable doubt. In response,
the State argues that Baker's reliance on Descamps is misplaced. We disagree.

In Dickey, the Kansas Supreme Court held that "in order to classify a prior
burglary conviction or adjudication as a person offense under K.S.A. 2014 Supp. 21-
6811(d), a sentencing court must find that the prior burglary involved a 'dwelling.'" 301
Kan. at 1021. K.S.A. 2014 Supp. 21-5111(k) defines "dwelling" as "a building or portion
thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a
human habitation, home, or residence." The Dickey court held that because the burglary
statute in effect when Dickey committed his prior burglary did not require evidence that
the burglary was of a dwelling, the district court's determination of whether Dickey's
prior burglary did in fact involve a dwelling "resulted from the district court making or
adopting a factual finding that went beyond simply identifying the statutory elements that
constituted the prior burglary adjudication." 301 Kan. at 1039. As a result, the Dickey
court held that the district court's person classification was constitutionally prohibited
under Descamps and Apprendi. 301 Kan. at 1039.

Similar to Dickey, the 1990 burglary statute did not include a dwelling element.
Rather, it simply defined burglary as follows:
"[K]nowingly and without authority entering into or remaining within any: (1)
Building, mobile home, tent or other structure, with intent to commit a felony or theft
therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of
conveyance of persons or property, with intent to commit a felony or theft therein."
K.S.A. 1989 Supp. 21-3715.

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Because the burglary statute in effect at the time of Baker's prior juvenile
adjudication did not contain a dwelling element, the Sixth Amendment to the United
States Constitution did not allow for the district court to make a factual finding as to
whether or not Baker committed the burglary of a dwelling in 1990. Consequently, we
must vacate Baker's sentence and remand this case for resentencing consistent with the
requirements of Dickey, Descamps, and Apprendi.

Failure to Hold Restitution Hearing

Baker also contends that the district court erred by not holding a restitution
hearing. In response, the State concedes that no restitution hearing was held. Instead, it is
undisputed that the district court ordered that restitution be left open for 30 days and later
entered an order for Baker to pay $5,000 in restitution without holding a hearing.

In State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014), the Kansas Supreme
Court held that "because restitution constitutes a part of a defendant's sentence, its
amount can only be set by a sentencing judge with the defendant present in open court."
The Hall court acknowledged that a defendant may waive his or her right to be present
and advised that it would be best to make sure that "a defendant's waiver appears on the
record." 298 Kan. at 987-88. Here, there is no indication that Baker waived his right to a
restitution hearing or to his right to be present. Thus, we must also vacate the restitution
order and remand this issue to the district court.

Sentence vacated—including restitution order—and remanded for resentencing.