State v. Beck

NOT DESIGNATED FOR PUBLICATION

No. 113,496

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

ROBERT W. BECK,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; ROBB W. RUMSEY, judge. Opinion filed July 1, 2016.
Affirmed.

Boyd K. Isherwood, assistant district attorney, Marc Bennet, district attorney, and Derek Schmidt,
attorney general, for appellant.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellee.

Before MALONE, C.J., LEBEN, J., and JOHNSON, S.J.

LEBEN, J.: The State appeals the district court's decision to grant Robert W. Beck's
motion to correct an illegal sentence. The district court agreed to reclassify Beck's 1991
Arkansas burglary conviction as a nonperson felony and gave Beck a shorter sentence
than he had originally received.

The State argues that a similar Kansas Supreme Court decision, State v. Dickey,
301 Kan. 1018, 1034, 350 P.3d 1054 (2015), which granted relief to the defendant,
shouldn't apply because Beck was sentenced in 2009 and Dickey wasn't decided until
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2015. But Dickey just applied previously announced constitutional law, so the same rules
should apply to Beck. Beck's case is indistinguishable from Dickey, so we approve the
district court's reclassification of Beck's prior conviction.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2009, Beck pled guilty to three offender-registration violations. At
sentencing, the district court found that Beck had a criminal-history score of "B," based
in part on a 1991 Arkansas burglary conviction that was classified as a person felony.
Beck's guideline sentencing range was 114, 120, or 128 months. Under the plea
agreement, the State recommended the low number in that range, 114 months; the district
court followed the State's recommendation and denied Beck's requests for probation or a
lower sentence.

In June 2014, Beck filed a motion to correct an illegal sentence, arguing that his
criminal-history score had been incorrectly calculated. In October 2014, the district court
granted Beck's motion, reclassified his 1991 Arkansas burglary conviction as a nonperson
felony, and resentenced him to 53 months in prison based on his new criminal-history
score of "C."

The State has appealed to this court.

ANALYSIS

The State argues that the district court shouldn't have reclassified Beck's 1991
Arkansas burglary conviction as a nonperson crime.

K.S.A. 22-3504 provides that "[t]he court may correct an illegal sentence at any
time." See State v. McKnight, 292 Kan. 776, 779, 257 P.3d 339 (2011) (any party can
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bring a claim that a sentence is illegal). The Kansas Supreme Court strictly defines an
"illegal sentence" as "(1) a sentence imposed by a court without jurisdiction; (2) a
sentence that does not conform to the applicable statutory provision, either in the
character or the term of authorized punishment; or (3) a sentence that is ambiguous with
respect to the time and manner in which it is to be served." Makthepharak v. State, 298
Kan. 573, 578, 314 P.3d 876 (2013); State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039
(2013). A challenge to a criminal-history score, even if it's a constitutionally based
challenge, can be properly brought in a motion to correct an illegal sentence. Dickey, 301
Kan. at 1034; State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011); State v. Vasquez, 52
Kan. App. 2d 708, 712-14, ___ P.3d ___, 2016 WL 1728688 (2016) (distinguishing claim
that a sentencing statute is unconstitutional from a claim that a constitutional error caused
an incorrect criminal-history score and illegal sentence).

The State first argues that the case the district court relied upon in its decision,
State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order
September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert.
denied 136 S. Ct. 865 (2016), doesn't apply to the classification of prior burglary
convictions. Beck concedes this point on appeal because Murdock was overruled last year
in Keel. The parties are correct: Murdock doesn't control here. Keel, 302 Kan. at 589-90;
Dickey, 301 Kan. at 1035.

Even though the district court relied on Murdock, Beck argues that it nonetheless
reached the correct result under Dickey. The question is a purely legal one, so we still
would affirm the district court if Dickey supports that result. See State v. Phillips, 299
Kan. 479, 493, 325 P.3d 1095 (2014); Huffmier v. Hamilton, 30 Kan. App. 2d 1163,
1171, 57 P.3d 819 (2002) ("We may affirm the trial court on grounds different than those
stated by the trial court."). But the State counters that Dickey, decided in 2015, doesn't
apply retroactively to cases that were final before it was decided. The district court
sentenced Beck in 2009 and he didn't appeal, so his sentence became final in 2009. Thus,
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we must determine whether Dickey can be applied in Beck's case even though it came 6
years after Beck was sentenced.

We will consider this question in two steps. First, we will consider what the court
decided in Dickey, so that we can see the basis for that decision. Second, we will consider
whether the Dickey decision can be applied to Beck.

In Dickey, the defendant pled guilty to felony theft, and the district court scored
his 1992 juvenile adjudication for burglary as a person felony. The defendant argued on
appeal that this classification violated his Sixth Amendment 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).

Apprendi held that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. Descamps
applied that principle when it explained how a sentencing court should compare prior-
conviction statutes to generic offenses when determining whether the prior conviction
was a violent felony that would increase a defendant's sentence under a federal
sentencing scheme. 133 S. Ct. at 2281, 2288. Generally, a court can only compare the
elements of the relevant statutes and cannot look at the actual facts underlying the prior
conviction because doing so could result in the sentencing court finding sentence-
enhancing facts (that a prior felony conviction was a "violent felony," for example) that
weren't proved to a jury beyond a reasonable doubt (thus violating Apprendi). 133 S. Ct.
at 2281-82. The sentencing court can only consider the actual facts of the prior crime
(using documents such as indictments or jury instructions) when the prior-conviction
statute is divisible—that is, when it describes multiple alternatives for a given crime. In
other words, when the prior crime could have been committed in more than one way, the
sentencing court is allowed to find out how it was committed and therefore which section
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of the prior-conviction statute was applied to the defendant. 133 S. Ct. at 2281. The court
can then compare the relevant section of the prior-conviction statute to the generic
offense and decide, based purely on the statutory elements, whether the prior conviction
was a violent felony that would increase the sentence. 133 S. Ct. at 2285.

In Dickey, the Kansas Supreme Court determined that Apprendi and Descamps
apply to the Kansas Sentencing Guidelines Act because the Act requires the court to
classify prior convictions as person or nonperson crimes, which puts the court at risk of
finding a fact about a prior conviction—that it was a person crime—that will increase a
defendant's sentence but wasn't proved to a jury beyond a reasonable doubt. See Dickey,
301 Kan. at 1039; K.S.A. 2015 Supp. 21-6809 (three person felonies results in a criminal-
history score of "A," two results in a criminal-history score of "B," and one results in a
"C" or "D"); K.S.A. 2015 Supp. 21-6811(d) and (e) (the facts required to classify prior
burglary convictions and prior out-of-state convictions shall be established by the State
by a preponderance of the evidence). For out-of-state convictions, we look to the
comparable Kansas offense to determine whether the offense was a person or nonperson
crime, K.S.A. 2015 Supp. 21-6811(e), and for burglary, the offense is a person crime if it
involved a "dwelling" and a nonperson crime if it didn't. See K.S.A. 2015 Supp. 21-
5807(a).

The Kansas burglary statute in effect when Dickey committed his prior burglary
didn't require evidence that the burglarized structure was a dwelling. Dickey, 301 Kan. at
1039. Because the prior burglary statute didn't contain a dwelling element, determining
whether the defendant's prior burglary actually involved a dwelling at the criminal-
history stage "would necessarily involve judicial factfinding that goes beyond merely
finding the existence of a prior conviction or the statutory elements constituting that prior
conviction." 301 Kan. at 1021. Therefore, the Dickey court concluded that "classifying
[the defendant's] prior burglary adjudication as a person felony violate[d] his
constitutional rights as described under Descamps and Apprendi." 301 Kan. at 1021.
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Here, we must compare the burglary statute in effect in Arkansas in 1991 with the
burglary statute in effect in Kansas in 2009. Keel, 302 Kan. at 581 ("[T]he comparable
post-KSGA criminal statute is the one that was in effect at the time the current crime of
conviction was committed."). Arkansas defined burglary in 1991 as entering or remaining
"in an occupiable structure of another person with the purpose of committing therein any
offense punishable by imprisonment." (Emphasis added.) Ark. Code Ann. § 5-39-201
(1987). An "occupiable structure," in turn, was a building, vehicle, or structure:

"'(A) Where any person lives or carries on a business or other calling; or

"(B) Where people assemble for purposes of business, government, education,
religion, entertainment or public transportation; or

"(C) Which is customarily used for overnight accommodation of persons whether
or not a person is actually present. Each unit of an occupiable structure divided into
separately occupied units is itself an occupiable structure.'" Julian v. State, 298 Ark. 302,
303, 767 S.W.2d 300 (1989) (quoting Ark. Code Ann. § 5-39-101 [1987]).

This definition doesn't depend on what the building was being used for, as long as it was
capable of being occupied. Julian, 298 Ark. at 303. For example, the definition covers
both residential and commercial buildings, including buildings used for social activities,
religious sessions, and classroom meetings. Barksdale v. State, 262 Ark. 271, 273, 555
S.W.2d 948 (1977). In 1993, after Beck's conviction, Arkansas amended its burglary
statute and created two separate offenses: one for residential burglary (of a "residential
occupiable structure") and one for commercial burglary (of a "commercial occupiable
structure"). Ark. Stat. Ann. § 5-39-201; 1993 Ark. Sess. Laws Act 442 and Act 552. But
in 1991, when Beck was convicted, Arkansas' burglary statute covered both residential
and commercial buildings.

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The comparable Kansas statute designates two types of burglary: one that involves
a dwelling and one that doesn't. K.S.A. 2015 Supp. 21-5807(a). (The comparable Kansas
statutes are those that were in effect in 2009, when Beck committed the crimes at issue
here, but the relevant statutes haven't changed in substance since then. They have been
renumbered, so for the convenience of many readers, who can more easily access current
statutes, we will cite to current Kansas statutes in this opinion.) Kansas 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." K.S.A. 2015
Supp. 21-5111(k). And under K.S.A. 2015 Supp. 21-5807, the only the kind of
nonaggravated burglary that is classified a person crime is one that involves a dwelling.
See also K.S.A. 2015 Supp. 21-6811(d).

Arkansas' 1991 burglary statute didn't include a dwelling element, and Arkansas'
definition of "occupiable structure" in 1991 was broader than Kansas' definition of
"dwelling"—a Kansas dwelling was a building "used or intended for use as a human
habitation," while an Arkansas "occupiable structure" included commercial buildings that
weren't intended for use as a human habitation, as long as they could be "occupied." So to
classify Beck's 1991 burglary conviction as a person crime, the district court necessarily
found an additional fact about the Arkansas conviction—that Beck burglarized a
dwelling, a building used or intended to be used for human habitation. That is a fact only
a jury can find, under Apprendi, because it is the fact that makes burglary a person crime
and thus leads to an increase in the defendant's sentence. Dickey, 301 Kan. at 1039-40;
see State v. Wetrich, No. 112,361, 2016 WL 197808, at *4-5 (Kan. App. 2016)
(unpublished opinion) (comparing definitions of "inhabitable structure" and "dwelling"
and finding that a 1988 Missouri burglary conviction should have been classified as a
nonperson crime under Dickey); State v. Hill, No. 112,545, 2015 WL 8590700, at *4-6
(Kan. App. 2015) (unpublished opinion) (same for 2004 Missouri burglary convictions).
Under Dickey, Beck's 1991 conviction should have been classified as a nonperson felony.
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The district court was right to make that conclusion, even though the authority it cited—
Murdock—no longer supports that result.

Even so, the State argues that we can't apply Dickey to Beck's case because
Dickey's holding doesn't apply retroactively to collateral actions. (A collateral action, like
a motion to correct an illegal sentence, is one that is brought after a defendant's
conviction and sentence are final.) Generally, "when an appellate court decision changes
the law, that change acts prospectively and applies only to all cases, state or federal, that
are pending on direct review or not yet final on the date of the appellate court decision."
State v. Mitchell, 297 Kan. 118, Syl. ¶ 3, 298 P.3d 349 (2013). The State argues that the
Dickey holding was such a departure from precedent that it should be regarded as a
"change" in the law.

In support, the State cites an unpublished decision from 2014 in which this court
suggested that State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), aff'd 301
Kan. 1018 (2015), didn't apply to cases on collateral review. State v. Lewis, No. 110,050,
2014 WL 5619132, at *3 (Kan. App. 2014) (unpublished opinion). But more recently and
with more explanation, panels of this court have been reaching the opposite conclusion.
See Vasquez, 2016 WL 1728688, at *4-5; State v. Martin, 52 Kan. App. 2d 474, 484, 369
P.3d 959 (2016), petition for rev. filed May 5, 2016. We find the more recent cases
persuasive.

As our court has noted in these more recent cases, the court's holding in Dickey
wasn't a change in the law; it was instead an application of the constitutional rule
announced in 2000 in Apprendi and later clarified by Descamps. Vasquez, 2016 WL
1728688, at *4-5; Martin, 52 Kan. App. 2d at 484; see Dickey, 301 Kan. at 1021. So for
retroactivity purposes, the relevant date is the date that Apprendi—a case that did
establish a new rule of law—was decided. State v. Gould, 271 Kan. 394, 414, 23 P.3d
801 (2001) (stating that Apprendi must be applied to all cases that arose after June 26,
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2000); Vasquez, 2016 WL 1728688, at *4; Martin, 52 Kan. App. 2d at 484. Beck's case
arose in 2009, well after Apprendi, so applying Dickey is not an improper retroactive
application of that law. See State v. Hammitt, No. 113,489, 2016 WL 1079463, at *4
(Kan. App. 2016) (unpublished opinion), petition for rev. filed April 18, 2016.

As such, we conclude that the district court was correct to grant Beck's motion, to
reclassify Beck's 1991 Arkansas burglary conviction as a nonperson felony, to recalculate
Beck's criminal-history score, and to resentence Beck based on that recalculated score.

The district court's judgment is therefore affirmed.