State v. Dwerlkotte

1

NOT DESIGNATED FOR PUBLICATION

No. 116,231

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT F. DWERLKOTTE, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed April 28, 2017.
Sentence vacated and case remanded with directions.

Shannon S. Crane, of Hutchinson, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., MALONE and GARDNER, JJ.

Per Curiam: In this appeal, we vacate Robert F. Dwerlkotte's sentence because the
sentencing court engaged in unacceptable judicial factfinding and improperly scored his
preguideline burglary convictions as person felonies. We specifically reject the State's
contention that the judicial factfinding done by the court in this instance was harmless
error. We remand for resentencing.

There is a companion appeal, No. 115,625, where we address the propriety of the
court's grant of the State's motion to modify Dwerlkotte's sentence to lifetime postrelease
supervision.
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Dwerlkotte enters pleas of guilty and no contest to two serious felony crimes.

In 2007, Dwerlkotte pled no contest to aggravated burglary, a severity level 5
person felony, and guilty to aggravated sexual battery, a severity level 5 person felony.
After the court found that Dwerlkotte was a persistent sex offender, it sentenced him to
272 months in prison and 24 months' postrelease supervision.

The court had found that Dwerlkotte's criminal history score was A. Dwerlkotte
did not object to his criminal history score at that time. The score was based, in part, on
three burglary convictions arising in Reno County in April 1993. These convictions were
scored as person felonies. For each charge, the complaint in that case alleged that
Dwerlkotte burglarized a "residence."

Eight years later, Dwerlkotte moved to correct an illegal sentence by arguing that
according to State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I), his
preguideline burglary convictions were improperly scored as person felonies. The court
denied this motion, believing that the 2015 statutory amendments to K.S.A. 21-6811
resolved the issue.

Dwerlkotte contends that the scoring of his old burglary convictions as person
felonies required unconstitutional judicial factfinding as explained in Dickey I, 301 Kan.
1018, and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). Dwerlkotte argues his sentence is therefore illegal. The State contends that the
court's scoring error was harmless.

We review the cases to determine what a sentencing court can and cannot do.

The rule in Apprendi seems simple. The United States Supreme Court held, "Other
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
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the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490. This rule was later clarified by that Court in
Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). In
that case, the Court determined that Apprendi was implicated when a district court
enhanced a defendant's sentence based on a factual finding that went beyond the
existence of a prior conviction and the statutory elements that comprised the prior
conviction. 133 S. Ct. at 2282, 2288-89.

Intending to apply these principles to Kansas law, our Kansas Supreme Court in
Dickey I discussed the differing roles of judges and juries:

"The policy rationale behind Apprendi is that a court violates the United States
Constitution if it invades the jury's territory by finding facts at sentencing. See Shepard v.
United States, 544 U.S. 13, 25, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (plurality
opinion) ('[T]he Sixth and Fourteenth Amendments guarantee a jury standing between a
defendant and the power of the State, and they guarantee a jury's finding of any disputed
fact essential to increase the ceiling of a potential sentence.'). A narrow exception exists
for judicial fact finding regarding the existence of a prior conviction because of the
procedural safeguards which attach to such a fact. Apprendi, 530 U.S. at 488. As a result,
in the typical case under our sentencing guidelines, tabulating a defendant's prior
convictions to determine the criminal history score, which usually has the effect of
increasing a defendant's sentence, does not violate a defendant's jury trial rights. See State
v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002).

"Apprendi is implicated, however, when a district court, for purposes of
enhancing a defendant's sentence for a current conviction, makes findings of fact at
sentencing that go beyond merely finding the existence of a prior conviction or the
statutory elements that made up the prior conviction. Descamps, 133 S. Ct. at 2288-89."
Dickey I, 301 Kan. at 1036.

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In other words, at sentencing, the judge is only permitted to find the existence of a prior
conviction and examine the elements of the crime that constitute the prior conviction. To
do otherwise is error.

Elaborating on what can and cannot be done by judges, the United States Supreme
Court in Descamps also illustrated what can be done in cases with divisible and
indivisible statutes. When the statute forming the basis of the defendant's prior conviction
is "indivisible," i.e., it does not contain alternative elements, "[s]entencing courts may
'look only to the statutory definitions'—i.e., the elements—of a defendant's prior
offenses, and not 'to the particular facts underlying those convictions.' [Citation
omitted.]" That is called the "formal categorical approach." 133 S. Ct. at 2283.

But if a statute is "divisible," i.e., it comprises multiple, alternative versions of the
crime, then courts are permitted to examine a limited class of extra-statutory materials "to
determine which of a statute's alternative elements formed the basis of the defendant's
prior conviction." Descamps, 133 S. Ct. at 2284-85. In those cases, then, courts are
permitted to look to extra-statutory materials such as charging documents, plea
agreements, jury instructions, verdict forms, transcripts from plea colloquies, and
findings of fact and conclusions of law from a bench trial. Dickey I, 301 Kan. at 1038
(citing Johnson v. United States, 559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1
[2010]). That is called by the court the "modified categorical approach." Descamps, 133
S. Ct. at 2285.

Importantly, even if a statute is divisible, the modified categorical approach may
not apply because "'in some cases, none of the alternative elements will match any
elements of the corresponding generic crime.'" Dickey I, 301 Kan. at 1067. That holding
is important in this appeal. This is why the complaints alleging that Dwerlkotte
burglarized a "residence" are irrelevant. It is the elements of the statute that control.

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Our Supreme Court applied the rules found in Apprendi and Descamps in its
Dickey I decision. In order to classify Dickey's prior burglary conviction as a person
offense, the court needed to find that the prior burglary involved a "dwelling." 301 Kan.
at 1021. The burglary statute that formed the basis of Dickey's prior conviction did not
include an element that the burglarized structure be a "dwelling." Thus, the district court
was constitutionally prohibited from classifying the conviction as a person offense under
Descamps and Apprendi because doing so 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. The court held that
"classifying Dickey's prior burglary adjudication as a person felony violates his
constitutional rights as described under Descamps and Apprendi." 301 Kan. at 1021.

The situation in this case is the same as in Dickey I.

We take a closer look at Dwerlkotte's prior burglary convictions.

Dwerlkotte's current crime was committed in 2007. The appropriate sentencing
statute—K.S.A. 2006 Supp. 21-4711(d)—provided that his prior burglary convictions
were scored as person felonies if the prior conviction was classified as a burglary as
described in K.S.A. 21-3715(a). The burglary statute, K.S.A. 21-3715(a), contained an
element that the burglarized structure be a "dwelling." Thus, like in Dickey I, the court
needed to find that Dwerlkotte's prior burglary convictions involved "dwellings" in order
to score the convictions as person felonies if it was to enhance his sentence by increasing
his criminal history score.

Dwerlkotte was convicted of three counts of burglary in violation of K.S.A. 21-
3715 in April 1993. That burglary statute in April 1993 did not have a "dwelling"
element. See K.S.A. 1992 Supp. 21-3715. The State admits this in its brief. Just as in
Dickey I, because the statute which was the basis of Dwerlkotte's prior burglary
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conviction did not include an element that the burglarized structure was a "dwelling," the
district court was constitutionally prohibited under Descamps and Apprendi from
classifying the conviction as a person crime. Doing so would necessarily involve judicial
factfinding beyond the existence of the prior conviction and the statutory elements that
made up the prior conviction. See Dickey I, 301 Kan. at 1021.

Even though the district court concluded that the 2015 amendments to K.S.A. 21-
6811 somehow resolved this issue, we cannot agree. The 2015 enactment simply stated
prior burglary convictions will be scored as person felonies if the prior convictions were
classified as a burglary as defined in K.S.A. 21-3715(a) prior to its repeal. This method
was rejected by our Supreme Court in State v. Cordell, 302 Kan. 531, 534-35, 354 P.3d
1202 (2015), where the court ruled that the distinction between person and nonperson
burglaries under K.S.A. 2015 Supp. 21-6811(d) still depended on whether the defendant
burglarized a "dwelling." The 1986 burglary convictions in that case could not be scored
as person felonies because the 1986 burglary statute did not have "dwelling" as an
element. The 2015 amendments did not change this classification. The court reiterated its
holding in Dickey I in Cordell. 302 Kan. at 534-35.

We examine the State's argument about Dwerlkotte's no contest plea.

The State argues that Dickey I can be distinguished from this case because the
complaint in Dwerlkotte's 1993 case specifically alleged that the burglaries involved
three residences and Dwerlkotte pled no contest to the counts in the complaint. But the
State misses the point. The sentencing court was constitutionally prohibited from
employing the modified categorical approach to look at the complaint and make a factual
determination about whether Dwerlkotte's burglaries involved "dwellings." The Dickey I
court explained that the elements of the burglary statute decided the matter:

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"Though the burglary statute forming the basis for Dickey's prior juvenile
adjudication was comprised of multiple, alternative versions of the crime, none included
an element requiring that the structure burglarized be a dwelling, i.e., 'used or intended
for use as a human habitation, home or residence.' K.S.A. 2014 Supp. 21-5111(k).
Consequently, employing either a categorical approach or a modified categorical
approach to determine whether Dickey's prior burglary adjudication involved a dwelling
would be constitutionally prohibited under Descamps and Apprendi. See Descamps, 133
S. Ct. at 2288-89.

"Based on the above analysis, the district court was constitutionally prohibited
from classifying Dickey's prior burglary adjudication as a person felony because doing so
would have necessarily 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. Because burglary of a 'dwelling' . . . was not included within
the statutory elements making up Dickey's prior burglary adjudication, the burglary
adjudication should have been classified as a nonperson felony." Dickey I, 301 Kan. at
1039-40.

We are unmoved by the State's argument about Dwerlkotte's no contest plea. The
United States Supreme Court has recognized that while it is true in some cases, a
sentencing judge knows (or can easily discover) that the defendant carried out a "real"
burglary, even though the crime of conviction also extends to other conduct, it does not
matter. Mathis v. United States, 579 U.S. ___, 136 S. Ct. 2243, 2251, 195 L. Ed. 2d 604
(2016). The sentencing court may look only to the elements of the offense, not the facts
of the defendant's conduct. 136 S. Ct. at 2251. Citing Apprendi, the Court opined that the
sentencing court is

"barred from making a disputed determination about 'what the defendant and state judge
must have understood as the factual basis of the prior plea' or 'what the jury in a prior trial
must have accepted as the theory of the crime.' [Citations omitted.] [The judge] can do no
more, consistent with the Sixth Amendment, than determine what crime with what
elements, the defendant was convicted of." Mathis, 136 S. Ct. at 2252.
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A judge can only increase a defendant's sentence beyond the statutory maximum based
on a legal certainty that the defendant was previously convicted of a qualifying offense,
not the judge's inference (however reasonable) about what the prior factfinder had
thought. See Mathis, 136 S. Ct. at 2255 n.6. At the plea hearing, the defendant may have
had no incentive to contest a fact that did not matter under the law. Thus, a prosecutor's
mistake concerning the means by which the defendant committed the crime is likely to go
uncorrected. Mathis, 136 S. Ct. at 2253.

To sum up, a sentence cannot be enhanced based upon a judge's inference. Under
Dickey I, the sentencing court here was not permitted to use the complaint from
Dwerlkotte's 1993 burglary convictions to make a factual determination that the
convictions involved a "dwelling."

We report what the cases compel a sentencing court to do.

The law is clear—courts may correct an illegal sentence at any time. K.S.A. 22-
3504(1). Therefore, whether a sentence is illegal may be considered for the first time on
appeal. Dickey I, 301 Kan. at 1027. Moreover, a challenge to an illegal sentence is not
subject to the general rule that a defendant must raise all available issues on direct appeal.
State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011). An illegal sentence may be
corrected even after the time for direct appeal has passed and the defendant's sentence is
final. See State v. Dickey, 305 Kan. 217, 222, 380 P.3d 230 (2016) (Dickey II); State v.
Martin, 52 Kan. App. 2d 474, Syl. ¶ 8, 369 P.3d 959 (2016). Whether a sentence is illegal
is a question of law over which an appellate court has unlimited review. State v. Moncla,
301 Kan. 549, 551, 343 P.3d 1161 (2015).

After all, our Kansas Supreme Court in Dickey I, 301 Kan. at 1034, has defined an
illegal sentence to be:

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 a sentence imposed by a court without jurisdiction;
 a sentence that does not conform to the applicable statutory
provision, either in the character or the term of authorized
punishment; or
 a sentence that is ambiguous with respect to the time and
manner in which it is to be served.

The logic here is manifest. When a challenge proves a defendant's criminal history
score to be incorrect, the sentence based on that criminal history score is illegal. See, e.g.,
Dickey I, 301 Kan. at 1030-34. In Neal, our Supreme Court reasoned that a defendant's
challenge to his criminal history score is "necessarily a challenge to his sentence that the
history score helped produce. If the history score is incorrect, it follows that his resulting
sentence cannot conform with the statutory provision in the term of the punishment
authorized . . . and, consequently, is an illegal sentence." 292 Kan. at 631.

The Kansas Supreme Court has elaborated on this point. In Dickey II, the court
clarified that although there is an overlay of constitutional law, the proper classification
of a prior crime is ultimately a matter of state statutory law:

"The parties' framing of the question here as a question of constitutional law is
likewise understandable, but incorrect. It is true that the methodology utilized by the
State and the district court to find the additional fact that Dickey's prior burglary
conviction issue involved a dwelling turned out to be constitutionally infirm pursuant to
Apprendi and its progeny. The bulk of our opinion in Dickey I was spent resolving this
question. However, once that question was resolved, we returned to consider the question
of the proper classification of the prior crime purely as a matter of statutory law:

'Under the facts of [Dickey I, which are also the facts of Dickey II], the
district court was constitutionally prohibited from classifying the
defendant's prior burglary adjudication as a person felony under K.S.A.
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2014 Supp. 21-6811(d) because doing so necessarily resulted from the
district court making or adopting a factual finding (i.e., the prior burglary
involved a dwelling) that went beyond simply identifying the statutory
elements that constituted the prior burglary adjudication. Because
burglary of a "dwelling" (as that term is defined in K.S.A. 2014 Supp.
21-5111[k]) was not included within the statutory elements making up
the defendant's burglary adjudication under K.S.A. 1991 Supp. 21-3715,
the burglary adjudication should have been classified as a nonperson
felony for criminal history purposes.' Dickey I, 301 Kan. 1018, Syl. ¶ 8.

"Our holding in Dickey I demonstrates that the proper classification of a prior
crime is exclusively a matter of state statutory law. Which is simply to reiterate that
'[b]ecause burglary of a "dwelling" . . . was not included within the statutory elements
making up the defendant's burglary adjudication . . . [it] should have been classified as a
nonperson felony for criminal history purposes.'" Dickey II, 305 Kan. at 221.

We examine the State's argument that the scoring error here was harmless.

The State asserts that the element that Dwerlkotte's 1993 burglary convictions all
involved residences "was uncontested and supported by overwhelming evidence." The
assertion is clearly incorrect for several reasons.

First, in April 1993, as we have already pointed out, the State was not required by
the burglary statute to allege or prove that the structure burglarized was a residence. It
was not an element of that crime. Said another way, it was not an element that would or
could be contested at that time.

Second, Dwerlkotte pled no contest to those charges. He made no admission that
he burglarized residences in 1993. See State v. Case, 289 Kan. 457, 461, 468, 213 P.3d
429 (2009). Further along this line, there was no need for Dwerlkotte to even contest the
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allegations made in the complaint at the time of entering his plea since it was not an
element of the crime.

Finally, the "overwhelming evidence" claimed by the State simply amounted to
the allegations it made in the body of the complaints it had filed in 1993. These
allegations are not evidence but are charges made by a prosecutor. Ultimately,
Dwerlkotte's sentence was based on factfinding by the judge that his 1993 burglary
convictions involved residences. In other words, the judge did exactly what the Kansas
Supreme Court said should not be done in Dickey I.

We are not saying that sentencing enhancement errors cannot be subject to
harmless error analysis. After all, the United State Supreme Court has said, "'[M]ost
constitutional errors can be harmless.'" Neder v. United States, 527 U.S. 1, 8, 119 S. Ct.
1827, 144 L. Ed. 2d 35 (1999). We are saying that in this case the criminal history
scoring error is not harmless.

A review of two cases dealing with sentence enhancement errors is helpful.

In State v. Reyna, 290 Kan. 666, 234 P.3d 761 (2010), overruled on other grounds
by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016), the defendant was charged with an
enhanced version of aggravated indecent liberties with a child because he was over the
age of 18 at the time of the offense. Reyna's age was not submitted to the jury as an
element of the crime that the State had to prove beyond a reasonable doubt. Without
defining the term, the court considered this to be an "Apprendi-type" error. 290 Kan. at
682. The court established a test when it stated that it would find harmless error "when a
review of the evidence leads to the conclusion beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error." 290 Kan. at 681. Reyna testified at
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trial that he was 37 years of age. There was no conflicting evidence. Thus, the error was
harmless. 290 Kan. at 682.

In contrast, there is no overwhelming evidence in this case that would excuse
judicial factfinding when the court enhanced Dwerlkotte's sentence. Allegations made by
a prosecutor in a complaint filed 14 years earlier in a different case are not the same as an
admission of a defendant at his jury trial that he was 37 years old. This is especially true
as Dickey I is binding precedent. After all, the Dickey I court ruled that the statutory
elements controlled the issue.

We are not prepared to hold those allegations made in the State's complaints are
overwhelming evidence that supports a sentencing enhancement. To do so, we would
have to find that harmless error overcomes the holding in Dickey I. We see no indication
that our Supreme Court is stepping back from the policy it established in that case and the
cases that follow.

Then, in State v. Soto, 299 Kan. 102, Syl. ¶ 9, 322 P.3d 334 (2014), our Supreme
Court concluded that the hard 50 sentence procedure violated the Sixth Amendment to
the United States Constitution. That procedure allowed a sentencing judge to find by a
preponderance of the evidence that one or more aggravating factors existed instead of
requiring them to be proved to a jury beyond a reasonable doubt. 299 Kan. 102, Syl. ¶ 9.

In its opinion, the court touched on whether the failure to submit the existence of
aggravating circumstances to the jury was subject to review for harmless error, but it
concluded that it need not decide whether a harmlessness analysis applied because the
error did not come close to meeting the test set out in Reyna. To find the error harmless,
the court would first have to determine beyond a reasonable doubt that the evidence of
the aggravating circumstance was "uncontroverted and supported by overwhelming
evidence" such that a jury would have found the existence of the aggravating
13

circumstance beyond a reasonable doubt. But the court could not conclude beyond a
reasonable doubt that no rational jury would have determined the mitigating
circumstances outweighed the aggravating circumstances. 299 Kan. at 124-28.

In both cases, a judge made factual findings after receiving evidence. See Soto,
299 Kan. at 114; Reyna, 290 Kan. at 682. Here, the State simply points to the charging
document to show that Dwerlkotte burglarized a residence. But a jury could not conclude
anything beyond a reasonable doubt from a charging document. Neither can a judge. The
charging document consists of assertions by the State that are then either proved at trial
with evidence or admitted by the defendant by stipulation or plea. But Dwerlkotte pled no
contest. He did not admit to the assertions made by the State. Simply put, there is no
overwhelming evidence here.

To decide harmless error about the classification of a prior conviction, as the State
asks us to do here, we would need to review the entire record from the prior case to
determine whether the evidence that Dwerlkotte burglarized a dwelling was
"overwhelming" and "uncontroverted." But even if we were to engage in this lengthy
process, there would still be a question of fairness to Dwerlkotte. As explained in Mathis,
a defendant would have no motive to challenge a fact that did not matter under the law.
When Dwerlkotte pled to his prior burglaries, there was not a distinction between person
and nonperson crimes. So, it did not matter whether he burglarized a dwelling or another
structure.

Clearly then, the method used by the sentencing court to classify Dwerlkotte's
preguideline burglary convictions as person felonies was impermissible under Apprendi.
According to our Supreme Court, if a "dwelling" was not an element of the defendant's
prior burglary conviction, then it should have been classified as a nonperson felony for
criminal history purposes. See Dickey II, 305 Kan. at 221. And "where there has been a
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misclassification of a prior conviction, the resulting sentence is illegal and can be
corrected at any time." Dickey II, 305 Kan. at 220.

The error here raised Dwerlkotte's criminal history score to an A. Dwerlkotte's
presentence investigation report reflected four person felonies and four nonperson
misdemeanors. Three of the person felonies were the disputed burglary convictions.
Dwerlkotte's criminal history would drop significantly if the burglary convictions were
scored as nonperson felonies rather than person felonies. See K.S.A. 2006 Supp. 21-4704.

We vacate Dwerlkotte's sentence and remand for resentencing with directions to
score the preguideline burglary convictions as nonperson felonies.

* * *

GARDNER, J., concurring: I concur in the result and agree that the State has failed
to show harmless error.

A plea of guilty is an admission to the charge and every material fact alleged
therein. K.S.A. 22-3209(1); see State v. Case, 289 Kan. 457, 461, 213 P.3d 429 (2009).
But a plea of nolo contendere, such as Dwerlkotte made to his prior burglaries of
residences, is not an admission. Instead, it is a "formal declaration that the defendant does
not contest the charge," but "[t]he plea cannot be used against the defendant as an
admission in any other action based on the same act." K.S.A. 22-3209(2).

This leaves us with the fact that the complaint charged the defendant with
burglaries of residences, and he did not contest that charge. Had Dwerlkotte's case gone
to trial, it is unlikely that the character of the place defendant burglarized would have
been contested. The victim would have testified that she lived at that address, defendant
could not have contested that fact, and that would be that. This seems to be the type of
15

evidence, like the age element in Reyna, that defendants do not generally contest because
they cannot. But all of that is mere speculation and simply illustrates that the harmless
error analysis, as applied to our facts, would require us to imagine a trial that never
occurred. This posture is fundamentally different than when we review a transcript of a
trial to see if the omission of an element is harmless, in light of all the evidence that was
actually presented. Accordingly, as the majority finds, the State has failed to show
harmless error here.