State v. Jimenez

1

MODIFIED1

NOT DESIGNATED FOR PUBLICATION

No. 115,967

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JESUS MUNOZ JIMENEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Original opinion filed
October 6, 2017; modified opinion filed December 14, 2017. Affirmed in part, vacated in part, and
remanded with directions.

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

Jennifer S. Tatum, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MCANANY, J., and STEVEN R. EBBERTS, District Judge, assigned.

PER CURIAM: Jesus Munoz Jimenez appeals from his sentence for a single count
of rape. Jimenez raises three arguments on appeal, claiming the district court erred in: (1)

1 REPORTER'S NOTE: Opinion No. 115,967 was modified by the Court of Appeals
on December 14, 2017, to remand the case to the district court for resentencing after
reclassifying the Missouri conviction as a nonperson felony. The modified language is
incorporated into this opinion.
2

classifying his 1988 Missouri burglary conviction as a person felony for purposes of
scoring his criminal history, (2) changing the period of postrelease supervision from 36
months to the rest of his life, and (3) failing to orally impose the lifetime term of
postrelease supervision. Finding that the district court erred regarding arguments (1) and
(3) but not regarding argument (2), this court affirms in part, vacates Jimenez' sentence,
and remands to the district court for resentencing.

FACTS

On November 12, 2010, Jimenez pled guilty to one count of rape, a severity level
one person felony. A presentence investigation report prepared before sentencing
indicated that Jimenez' criminal history score was B based in part on a prior 1988
burglary conviction in Christian County, Missouri, which was classified as a person
felony.

Prior to sentencing, Jimenez objected to his criminal history score. At sentencing,
however, defense counsel conceded that Jimenez' criminal history score was B.
Specifically, counsel informed the district court that although Jimenez' 1988 Missouri
burglary conviction did not require proof that he had burglarized a dwelling, Jimenez
admitted that he broke into a house or inhabitable structure. Jimenez also personally
acknowledged to the district court that he had burglarized a residence. Pursuant to the
terms of a plea agreement, the district court imposed a downward departure sentence of
96 months' imprisonment followed by a postrelease supervision term of 36 months.

On May 20, 2015, the State filed a motion to correct an illegal sentence, arguing
that Jimenez' postrelease supervision period was not in conformity with K.S.A. 2016
Supp. 22-3717(d)(1)(G), which required a defendant convicted of rape to be subject to
lifetime postrelease supervision. After hearing argument from the parties, the district
court took the matter under advisement. The court subsequently issued a written order
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granting the State's motion and later entered an Order Correcting Sentence that imposed a
lifetime term of postrelease supervision. Jimenez timely appeals.

ANALYSIS

Jimenez raises three points of error on appeal. First, Jimenez argues the district
court erred in classifying his 1988 Missouri burglary conviction as a person felony for
purposes of scoring his criminal history. Second, he alleges the court erred in changing
the period of postrelease supervision from 36 months to the rest of his life. Third,
Jimenez claims the court erred in failing to orally impose the lifetime term of postrelease
supervision. Each of these allegations is addressed in turn.

DID THE DISTRICT COURT ERR IN CLASSIFYING JIMENEZ' PRIOR MISSOURI BURGLARY
CONVICTION AS A PERSON FELONY FOR CRIMINAL HISTORY PURPOSES?

Jimenez argues that the district court erred in classifying his 1988 Missouri
burglary conviction as a person offense. We address this issue even though Jimenez
stipulated to his criminal history score and the fact that the prior burglary was of a
residence. See State v. Dickey, 301 Kan. 1018, 1032, 350 P.3d 1054 (2015) (a defendant's
stipulation or lack of an objection regarding how prior convictions should be classified or
counted for purposes of determining defendant's criminal history score will not prevent
subsequent challenge under K.S.A. 22-3504[1] of his or her prior convictions); see also
K.S.A. 22-3504(1) (court may correct illegal sentence at any time). Whether a district
court properly classified a defendant's prior burglary conviction as a person crime for
purposes of scoring criminal history is a question of law over which an appellate court
has unlimited review. See State v. Luarks, 302 Kan. 972, 976, 360 P.3d 418 (2015); State
v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014).

The procedure for classifying prior convictions to score criminal history is set
forth in the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2016 Supp. 21-
4

6801 et seq. K.S.A. 2016 Supp. 21-6811(e) governs the classification of prior out-of-state
convictions like the one here. Under K.S.A. 2016 Supp. 21-6811(e)(2), the court must
first determine whether the prior conviction is a misdemeanor or a felony based on the
law of the state where the defendant was convicted. Here, the sentencing court properly
classified Jimenez' prior conviction as a felony for purposes of criminal history because
Missouri treated the prior conviction as a felony. See Mo. Rev. Stat. § 569.170 (1988).
Next, the court must determine whether to classify the prior out-of-state conviction as a
person or nonperson offense. The court makes this determination by looking to see
whether Kansas had a comparable offense at the time the defendant committed the
current crime of conviction. K.S.A. 2016 Supp. 21-6811(e)(3); State v. Keel, 302 Kan.
560, 590, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). If there is no
comparable offense in Kansas at the time the defendant committed the current crime of
conviction, the out-of-state conviction is classified as a nonperson offense. K.S.A. 2016
Supp. 21-6811(e)(3). If Kansas does have a comparable offense at the time the defendant
committed the current crime of conviction, the court must refer to that comparable
offense in Kansas in deciding whether to classify the prior out-of-state conviction as a
person or nonperson offense. K.S.A. 2016 Supp. 21-6811(e)(3).

To determine whether a Kansas statute is comparable to an out-of-state conviction,
"'the offenses need only be comparable, not identical.'" State v. Williams, 299 Kan. 870,
873, 326 P.3d 1070 (2014) (quoting State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925
[2003], overruled on other grounds by Dickey, 301 Kan. at 1032). Instead of identical, a
comparable crime is one that is "'similar in nature and cover[s] a similar type of criminal
conduct.'" State v. Riolo, 50 Kan. App. 2d 351, 353, 330 P.3d 1120 (2014) (quoting State
v. Barajas, 43 Kan. App. 2d 639, 643, 230 P.3d 784 [2010]). Thus, K.S.A. 2016 Supp.
21-6811(e) allows the sentencing court to classify prior out-of-state convictions as person
felonies in scoring criminal history if an out-of-state offense is similar in nature and
covers a type of criminal conduct similar to a Kansas offense that is classified as a person
felony. If the current comparable offense under the Kansas criminal code criminalizes
5

some conduct as a person offense and other conduct as a nonperson offense, however,
both the Kansas and United States Constitutions require further analysis to determine the
propriety of classifying a prior out-of-state conviction as a person offense for purposes of
scoring criminal history under K.S.A. 2016 Supp. 21-6811(e). In that circumstance—
which in this case arises under the Kansas burglary statute, K.S.A. 21-3715—the
constitutional protections described in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), are implicated when the court goes beyond the fact of a
prior out-of-state conviction and its statutory elements to make findings of fact that are
then used to increase the penalty for the current crime of conviction beyond the
prescribed statutory maximum.

In Dickey, 301 Kan. 1018, Syl. ¶ 7, our Supreme Court explained that "[t]he
constitutional protections described in [Apprendi] are implicated 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." In Apprendi, 530 U.S. at 490, the
United States Supreme Court 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."

In Descamps v. United States, 570 U.S. __, 133 S. Ct. 2276, 186 L. Ed. 2d 438
(2013), the United States Supreme Court identified the two ways in which a sentencing
court can analyze prior convictions for purposes of current sentencing without violating
the constitutional protections articulated in Apprendi: the categorical approach and the
modified categorical approach. Regardless of which approach is used, the sentencing
court ultimately is required to compare the elements of the prior conviction with elements
of the generic offense without considering the facts underlying the prior conviction.
Descamps, 133 S. Ct. at 2281. Both approaches were adopted by the Kansas Supreme
Court in Dickey, 301 Kan. at 1036-40.
6

Under the categorical approach, the court looks only at the statutory elements of
the two offenses being compared. A modified categorical approach is used, however,
when the prior conviction statute is divisible—in other words, when the statute under
which the defendant previously was convicted provides alternative ways of committing
the crime, each with its own set of elements. Under the modified categorical approach,
the court can look at a limited set of documents to determine which set of statutory
elements it should use for purposes of comparing that prior conviction with the elements
of the current comparable offense. So, the modified categorical approach lets the court
look at a few underlying facts from the prior conviction, but not for sentencing
purposes—only to determine which alternative set of elements in the prior conviction
statute it should compare to the current comparable offense. Descamps, 133 S. Ct. at
2281.

Recently, in Mathis v. United States, 579 U.S. __, 136 S. Ct. 2243, 2249, 195 L.
Ed. 2d 604 (2016), the United States Supreme Court clarified that the modified
categorical approach applies only to statutes that list "multiple elements disjunctively"
and not to those that merely list "various factual means of committing a single element."
To illustrate the difference, the Court provided an example. If "a statute requires use of a
'deadly weapon' as an element of a crime and further provides that the use of a 'knife,
gun, bat, or similar weapon' would all qualify," application of the modified categorical
approach would be inappropriate because that statute "merely specifies diverse means of
satisfying a single element of a single crime." 136 S. Ct. at 2249. Thus, "[t]he first task
for a sentencing court faced with an alternatively phrased statute is thus to determine
whether its listed items are elements or means." 136 S. Ct. at 2256.

Having set forth the statutory procedure for classifying prior out-of-state
convictions for purposes of scoring criminal history in circumstances where that
particular classification ultimately enhances a defendant's sentence for a current
conviction, we must next review the district court's decision to classify Jimenez' 1988
7

Missouri burglary conviction as a person offense. At the time Jimenez committed the
current crime, the Kansas burglary statute provided, in relevant part:

"Burglary is knowingly and without authority entering into or remaining within
any:
"(a) Building, manufactured home, mobile home, tent or other structure which is
a dwelling, with intent to commit a felony, theft or sexual battery therein;
"(b) building, manufactured home, mobile home, tent or other structure which is
not a dwelling, with intent to commit a felony, theft or sexual battery therein; or
"(c) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance
of persons or property, with intent to commit a felony, theft or sexual battery therein.
"Burglary as described in subsection (a) is a severity level 7, person felony."
K.S.A. 21-3715 (Torrence 2007).

Based on the language in the Kansas burglary statute, Jimenez' 1988 Missouri
burglary conviction must be classified as a prior person felony if it was burglary of a
dwelling but as a prior nonperson felony if it was burglary of a nondwelling. K.S.A. 21-
3715. In Kansas, a dwelling is defined 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. 2016 Supp. 21-5111(k). Thus, if the Missouri burglary statute includes
a requirement that the burglary was of an enclosed space used or intended for use as a
human habitation, home, or residence, then the prior conviction should be classified as a
person felony in Kansas.

The Missouri burglary statute that forms the basis for Jimenez' prior conviction in
1988 provided, in relevant part:

"1. A person commits the crime of burglary in the second degree when he
knowingly enters unlawfully or knowingly remains unlawfully in a building or
inhabitable structure for the purpose of committing a crime therein.
8

"2. Burglary in the second degree is a class C felony." Mo. Rev. Stat. § 569.170
(1988).

Mo. Rev. Stat. § 569.010 (1988) sets forth the definition of inhabitable structure as
that term is used in the Missouri second-degree burglary statute above:

"(2) 'Inhabitable structure' includes a ship, trailer, sleeping car, airplane, or other
vehicle or structure:
(a) Where any person lives or carries on business or other calling; or
(b) Where people assemble for purposes of business, government, education,
religion, entertainment or public transportation; or
(c) Which is used for overnight accommodations of persons. Any such vehicle or
structure is 'inhabitable' regardless of whether a person is actually present." (Emphasis
added.)

Jimenez argues the district court erred in classifying his prior conviction as a
person felony because Mo. Rev. Stat. § 569.170 (1988) does not include a dwelling
element. Thus, Jimenez claims the district court necessarily had to have considered facts
beyond the elements of the comparable statutes to find that his prior Missouri burglary
had been committed in a dwelling. Because his criminal history was enhanced due to this
finding, Jimenez argues the district court engaged in improper judicial fact finding that
violated his constitutional rights under Apprendi and Descamps, as applied by Dickey.

Multiple panels of this court recently concluded that a district court was
constitutionally prohibited from classifying a defendant's prior Missouri burglary
conviction under Mo. Rev. Stat. § 569.170 as a person felony 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 conviction. See State v. Fahnert, 54 Kan.
App. 2d 45, 396 P.3d 723 (2017), State v. Cogburn, No. 115,855, 2017 WL 1535217, at
*9 (Kan. App. 2017) (unpublished opinion); State v. Dixon, No. 115,157, 2017 WL
9

1534625, at *10 (Kan. App. 2017) (unpublished opinion). The panels initially found it
unnecessary to determine whether the Missouri burglary statute is divisible because
neither the elements of burglary of a building nor burglary of an inhabitable structure
match the dwelling location element of the Kansas statute. Fahnert, 54 Kan. App. 2d at
53; Cogburn, 2017 WL 1535217, at *4-5; Dixon, 2017 WL 1534625, at *5. The panels
reasoned that under Dickey, the prior Missouri burglary convictions should have been
classified as nonperson felonies because Mo. Rev. Stat. § 569.170 did not include a
dwelling element and the definition of inhabitable structure as that term was used in the
statute included vehicles and structures used or intended to be used for purposes other
than a human habitation, home, or residence. Thus, the panels remanded each of these
cases for resentencing. Fahnert, 54 Kan. App. 2d at 64; Cogburn, 2017 WL 1535217, at
*9; Dixon, 2017 WL 1534625, at *10.

As noted by the above panels, this analysis of the Missouri burglary statute is
consistent with the reasoning used by other panels of our court. Fahnert, 54 Kan. App. 2d
at 55; Cogburn, 2017 WL 1535217, at *5; Dixon, 2017 WL 1534625, at *6. See State v.
Wetrich, No. 112,361, 2016 WL 197808, at *5 (Kan. App. 2016) (unpublished opinion)
("[E]ven though Mo. Rev. Stat. § 569.170 [1988] is a divisible statute, because none of
the alternative elements in Mo. Rev. Stat. § 569.170 [1988] match the essential 'dwelling'
element in K.S.A. 21-3715[a], the district court was prohibited from looking outside the
elements of the comparable offenses without violating Apprendi and Descamps."), rev.
granted 305 Kan. 1258 (2016); State v. Beck, No. 113,496, 2016 WL 3570543, at *4
(Kan. App. 2016) (unpublished opinion) (prior Arkansas burglary conviction properly
classified as nonperson felony because Arkansas burglary statute did not include dwelling
element where definition of "occupiable structure" included commercial buildings not
intended for use as a human habitation, as long as they could be "occupied"), rev. denied
305 Kan. 1253 (2017); State v. Farley, No. 109,655, 2014 WL 5345895, at *7 (Kan. App.
2014) (unpublished opinion) (district court erred in treating Farley's 1998 Missouri
burglary conviction as a person felony in scoring his criminal history because "[t]he
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Missouri statute under which Farley was convicted covered conduct that would not
qualify as a person felony in Kansas"), rev. denied 302 Kan. 1014 (2015). But see State v.
Sodders, No. 115,366, 2017 WL 462046, at *4-5 (Kan. App. 2017) (unpublished opinion)
(applying modified categorical approach to conclude that district court properly classified
Sodders' prior Missouri burglary conviction as a person felony), petition for rev. filed
March 3, 2017.

Here, the district court classified Jimenez' prior Missouri burglary conviction as a
person felony based on a factual finding that the prior burglary involved a dwelling. In
doing so, the court went beyond simply identifying the statutory elements that constituted
the prior burglary conviction. Given the district court's imposition of a durational
departure sentence, it is unclear whether Jimenez' sentence was actually enhanced
because of this finding. Moreover, the journal entry from the 1988 Missouri burglary
conviction is not in the record on appeal and we cannot determine whether a jury
determined that Jimenez burglarized a dwelling or residence. Thus, we vacate Jimenez'
sentence and remand this case to the district court with directions to reclassify Jimenez'
prior Missouri burglary conviction as a nonperson felony and resentence him after such
reclassification.

DID THE DISTRICT COURT ERR IN GRANTING THE STATE'S MOTION TO CORRECT ILLEGAL
SENTENCE?

Jimenez next argues that the district court erred in granting the State's motion to
correct illegal sentence. Specifically, Jimenez claims that because of the 2013
amendments to K.S.A. 22-3717, K.S.A. 2016 Supp. 22-3717(d)(1)(D) and K.S.A. 2016
Supp. 22-3717(d)(1)(G) directly conflict as to which subsection applies to his case. He
argues that under the rule of lenity, his postrelease supervision term should be 36 months
under K.S.A. 2016 Supp. 22-3717(d)(1)(D), rather than lifetime under K.S.A. 2016 Supp.
22-3717(d)(1)(G).
11

Under K.S.A. 22-3504(1), an illegal sentence may be corrected at any time. An
"illegal sentence," as contemplated by K.S.A. 22-3504(1), is a sentence imposed by the
court without jurisdiction; a sentence that does not conform to the 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. State v. Gray,
303 Kan. 1011, 1014, 368 P.3d 1113 (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). The interpretation of the sentencing statute is also a question
of law over which we exercise unlimited review. State v. Collins, 303 Kan. 472, 473-74,
362 P.3d 1098 (2015).

Jimenez acknowledges that his statutory argument recently was rejected by this
court in State v. Herrmann, 53 Kan. App. 2d 147, 153-54, 384 P.3d 1019 (2016), rev.
denied July 25, 2017, but argues that Herrmann was wrongly decided. The Herrmann
court determined that K.S.A. 2016 Supp. 22-3717(d)(1)(D) only applies to persons
convicted of a sexually violent crime after July 1, 1993, but before July 1, 2006. 53 Kan.
App. 2d 147, Syl. ¶ 5. The Herrmann court further held that the 2013 amendments to
K.S.A. 22-3717(d)(1)(D) do not alter the requirement in K.S.A. 22-3717(d)(1)(G) that a
person convicted of a sexually violent crime on or after July 1, 2006, received lifetime
postrelease supervision. 53 Kan. App. 2d 147, Syl. ¶ 4. The Herrmann rationale and
analysis has now been adopted and followed in numerous unpublished but persuasive
opinions. See, e.g., State v. Cash, No. 116,560, 2017 WL 2494798, at *3-4 (Kan. App.
2017) (unpublished opinion), petition for rev. filed July 10, 2017; State v. Wilson, No.
116,381, 2017 WL 2212171, at *4 (Kan. App. 2017) (unpublished opinion), petition for
rev. filed June 19, 2017; State v. Darnell, No. 116,329, 2017 WL 2834649, at *3-4 (Kan.
App. 2017) (unpublished opinion), petition for rev. filed July 14, 2017; State v. Dackin,
No. 115,687, 2017 WL 2403349, at *3 (Kan. App. 2017) (unpublished opinion), petition
for rev. filed June 28, 2017; State v. Johnson, No. 115,660, 2017 WL 2709558, at *2
(Kan. App. 2017) (unpublished opinion), petition for rev. filed July 24, 2017; State v.
12

Brook, No. 115,657, 2017 WL 1535138, at *3 (Kan. App. 2017) (unpublished opinion),
petition for rev. filed May 17, 2017; State v. Candley, No. 115,640, 2017 WL 2494948, at
*4-6 (Kan. App. 2017) (unpublished opinion), petition for rev. filed June 19, 2017; State
v. Combs, No. 115,638, 2017 WL 1296312, at *6 (Kan. App. 2017) (unpublished
opinion), petition for rev. filed May 8, 2017; State v. Sananikone, No. 115,340, 2017 WL
2494952, at *1 (Kan. App. 2017) (unpublished opinion), petition for rev. filed July 5,
2017; State v. Phillips, No. 115,107, 2017 WL 1822383, at *1-2 (Kan. App. 2017)
(unpublished opinion), petition for rev. filed June 5, 2017; State v. Metzger, No. 115,056,
2017 WL 2838268, at *3-4 (Kan. App. 2017) (unpublished opinion), petition for rev.
filed July 31, 2017.

This court adopts Herrmann's reasoning and applies it to the facts here. Jimenez'
conviction of rape is a sexually violent crime as defined in K.S.A. 2016 Supp. 22-
3717(d)(5)(A). His crime was committed in June 2010, which is after July 1, 2006. On
the date Jimenez' crime was committed, K.S.A. 2009 Supp. 22-3717(d)(1)(G) required a
sentence of lifetime postrelease supervision for a conviction of rape. The 2013 statutory
amendments did not alter this result. Thus, Jimenez' original term of 36 months'
postrelease supervision constituted an illegal sentence, which the district court could
correct at any time under K.S.A. 22-3504(1). The district court did not err in granting the
State's motion to correct illegal sentence.

DID THE DISTRICT COURT ERR IN FAILING TO ORALLY PRONOUNCE JIMENEZ' LIFETIME
POSTRELEASE SUPERVISION TERM?

Finally, Jimenez contends his sentence is illegal and void because the district court
failed to orally impose the lifetime term of postrelease supervision and instead simply
included that component of the punishment in a written journal entry.

13

As previously stated, an illegal sentence may be corrected at any time. K.S.A. 22-
3504(1). Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a
question of law over which an appellate court has unlimited review. Moncla, 301 Kan. at
551.

A sentence that is not orally pronounced in open court is ambiguous with respect
to the time and manner in which it is to be served and thus illegal. See State v. Howard,
287 Kan. 686, Syl. ¶ 4, 198 P.3d 146 (2008); see also Abasolo v. State, 284 Kan. 299,
Syl. ¶ 3, 160 P.3d 471 (2007) ("A criminal sentence is effective upon pronouncement
from the bench; it does not derive its effectiveness from the journal entry."). Under
K.S.A. 2016 Supp. 21-6804(e)(2), the sentencing court must orally pronounce the
complete sentence, which includes any postrelease supervision period, at the sentencing
hearing. But failure to "pronounce the period of postrelease supervision shall not negate
the existence of such period of postrelease supervision." K.S.A. 2016 Supp. 21-
6804(e)(2)(C). This court has determined the appropriate remedy in a case where the
sentencing court failed to pronounce the postrelease supervision period but included the
term in a journal entry was to remand for resentencing so that a complete sentence could
be imposed in open court. State v. Arrocha, 42 Kan. App. 2d 796, 798, 217 P.3d 467
(2009). The State concedes that the case should be remanded for resentencing.

We affirm in part, vacate Jimenez' sentence, and remand to the district court for
resentencing.