State v. Kobel

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NOT DESIGNATED FOR PUBLICATION

No. 116,807

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SCOTT HARRIS KOBEL,
Appellant.

MEMORANDUM OPINION


Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed April 13, 2018.
Sentence vacated and case remanded with directions.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., PIERRON and POWELL, JJ.

PER CURIAM: Scott Harris Kobel pled no contest to aggravated battery. He
challenged his criminal history score on the presentence investigation (PSI) report,
arguing that his prior burglary conviction from Missouri was incorrectly classified as a
person felony. The district court found the person felony classification was correct and
sentenced Kobel to 154 months with the Kansas Department of Corrections. Kobel
appeals. Due to the recent decision in State v. Wetrich, 307 Kan. ___, 412 P.3d 984
(2018), we vacate his sentence and remand with directions.

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On July 14, 2013, the State charged Kobel with aggravated kidnapping, rape, and
attempted rape. Pursuant to a plea agreement, the State submitted an amended
information, charging Kobel with aggravated battery, a severity level 4 person felony.
The agreement was for Kobel to plead guilty to the amended information and, believing
his criminal history score was A, the State would not oppose or request more than the
mitigated sentence. Upon Kobel entering the plea, the State agreed to dismiss charges in
another pending case. The parties further requested that the district court make a finding
that the aggravated battery was sexually motivated, which triggered a 15-year offender
registration requirement. The district court completed a thorough plea colloquy to ensure
Kobel's understanding of the plea proceedings. Kobel submitted a plea of no contest. The
State proffered that Kobel had choked the victim into unconsciousness. A claim that
Kobel later confirmed to law enforcement. Further, Kobel indicated to officers that the
purpose of committing the battery was his own sexual gratification. The court accepted
Kobel's plea and found that the crime was sexually motivated.

On August 24, 2016, Court Services Officer Perry Chance submitted the PSI
report to the parties. It showed Kobel's criminal history score was A. He had 12 prior
convictions, which included 6 nonperson felonies, 3 person felonies, 2 nonperson
misdemeanors, and 1 person misdemeanor. His criminal history and current offense as a
level 4 felony provided an aggravated sentence of 172 months, standard sentence of 162
months, and mitigated sentence of 154 months. Importantly, a criminal history score of A
requires at least three person felonies, whereas a criminal history score of B requires two
person felonies. K.S.A. 2017 Supp. 21-6804(a). Because this offense was committed
while Kobel was on postrelease supervision, this sentence was to be served consecutive
to his prior sentence.

On August 29, 2016, Kobel filed an objection to the PSI report. The motion was
heard prior to sentencing on September 2, 2016. Kobel objected to the person
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classification of his prior burglary in the first degree from Jackson County, Missouri.
Kobel was convicted under Mo. Rev. Stat. § 569.160 (2000), which stated:

"1. A person commits the offense of burglary in the first degree if he or she knowingly
enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure
for the purpose of committing a crime therein, and when in effecting entry or while in the
building or inhabitable structure or in immediate flight therefrom, he or another
participant in the crime:
(1) is armed with explosives or a deadly weapon; or
(2) causes or threatens immediate physical injury to any person who is not a
participant in the crime; or
(3) there is present in the structure another person who is not a participant in the
crime."

In contrast, K.S.A. 2017 Supp. 21-5807 defines burglary as:

"(a) Burglary is, without authority, entering into or remaining within any:
(1) Dwelling, with intent to commit a felony, theft or sexually motivated crime
therein;
(2) building, manufactured home, mobile home, tent or other structure which is not a
dwelling, with intent to commit a felony, theft or sexually motivated crime therein; or
(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons
or property, with intent to commit a felony, theft or sexually motivated crime
therein."

Kobel claimed that the Missouri statute was overly broad, as it required intent to
commit any crime. Whereas, because the Kansas statute restricts burglary to intent to
commit a felony, theft, or sexually motivated crime, it is much narrower. He also
contends that the district court was restricted from reviewing extra-statutory documents
because the Missouri statute is indivisible. He asserted that for the court to classify his
Missouri burglary conviction as a person felony, it had to find he had a narrower intent
than that which is required by the Missouri statute. However, courts cannot find facts
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outside of the fact of the conviction itself that would enhance a sentence beyond the
statutory maximum.

The State contended that although the requisite intent for burglary in Missouri is
broader, intent is not relevant to the person or nonperson classification of a felony
because they both have the same intent requirement. The State asserted that the Missouri
burglary statute was divisible because it laid out multiple alternative versions of the
crime. The State submitted the information and journal entry of judgment from Kobel's
Missouri conviction. Although Kobel objected to the documents' admission as evidence,
the district court admitted them.

The district court denied Kobel's objection to the PSI report. In finding that the
Missouri and Kansas burglary offenses were comparable, the district court noted the
statute was divisible and it could look beyond the elements of the statute and examine
extra-statutory materials. The Missouri information showed Kobel had entered an
inhabitable structure while a person, who was not a participant in the crime, was present.
The court subsequently sentenced Kobel to the mitigated sentence of 154 months with 36
months of postrelease supervision. Kobel appeals the classification of the Missouri
burglary as a person felony and the court's use of prior convictions to enhance his
sentence.

Kobel first argues the district court erred by classifying his prior out-of-state
burglary as a person felony.

Determining whether a prior out-of-state conviction should be classified as a
person or nonperson offense requires interpretation of the Kansas Sentencing Guidelines
Act (KSGA). Interpretation of a statute is a question of law, over which we have
unlimited review. State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015).

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In 2002, Kobel was convicted of burglary in the first degree in Missouri.
According to K.S.A. 2017 Supp. 21-6811(e)(1), courts must classify defendants' out-of-
state convictions to determine criminal history. If a crime is a felony in the other state,
Kansas courts also consider it a felony. K.S.A. 2017 Supp. 21-6811(e)(2)(A). In
Missouri, burglary in the first degree is a class B felony. The district court properly
classified Kobel's prior conviction as a felony. Kansas courts must also classify out-of-
state convictions as person or nonperson crimes. K.S.A. 2017 Supp. 21-6811(e)(3).

"In designating a 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 conviction shall be
classified as a nonperson crime." K.S.A. 2017 Supp. 21-6811(e)(3).

Kobel contends the district court erred in classifying his prior burglary conviction
as a person felony because the Missouri statute contains a broader intent element.
Burglary in the first degree in Missouri requires an intent for the offender to commit "any
offense," whereas in Kansas the offender must have had an intent to "commit a felony,
theft or sexually motivated crime." Mo. Rev. Stat. § 569.160; K.S.A. 2017 Supp. 21-
5807. Kobel asserts that because of the different intent requirement, the Missouri and
Kansas burglary statutes are not comparable. The person or nonperson designations are
based on a comparison between the two states' statutes. Kobel argues the statutes are so
dissimilar that by designating his prior burglary conviction as a person felony, the court
performed prohibited fact-finding and, thus, violated his rights under the Sixth
Amendment to the United States Constitution. Further, in arguing his motion to the
district court, Kobel claimed that the Missouri statute is indivisible because it does not
contain alternative elements that warranted the district court's use of the modified
categorical approach.

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The United States Supreme Court, in Taylor v. United States, 495 U.S. 575, 600,
110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), adopted the formal categorical approach for
classifying prior convictions. Using this approach, trial courts only look at the statutory
definition of the prior offense, not any underlying facts. In Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the Court determined 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." The Court determined that it was unconstitutional for a legislature to
remove from a jury the fact-finding responsibility that could increase an offender's
sentence. 530 U.S. at 490 (citing Jones v. United States, 526 U.S. 227, 252-53, 119 S. Ct.
1215, 143 L. Ed. 2d 311 [1999] [Stevens, J., concurring]).

Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438
(2013), involved the classification of prior convictions for application under the Armed
Career Criminal Act (ACCA), which increased sentences of certain federal defendants
with three prior convictions for violent felonies. The Court determined that prior
convictions qualify as ACCA predicates "only if the statute's elements are the same as, or
narrower than, those of the generic offense." 570 U.S. at 257. The Descamps Court also
clarified that whether the district court uses the formal categorical approach or the newer
modified categorical approach depends on whether the statute is divisible. A divisible
statute provides alternative versions of the offense, warranting use of the modified
categorical approach to allow courts to determine which of the listed elements "played a
part in the defendant's conviction." 570 U.S. at 260. When a statute is indivisible, it does
not contain alternative elements or methods of committing the offense, the district court
must use the formal categorical approach. 570 U.S. at 258. In Mathis v. United States,
579 U.S. ___, 136 S. Ct. 2243, 2253, 195 L. Ed. 2d 604 (2016), the Court reiterated that
application of the modified approach only serves as a tool to identify the elements of the
crime of conviction when the statute contains multiple elements disjunctively. Because
courts are not to use the approach as a technique to discover whether the prior conviction
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relied on facts that satisfy elements of the generic offense, the two offenses must first be
comparable. See 136 S. Ct. at 2254.

In State v. Dickey, 301 Kan. 1018, 1038-39, 350 P.3d 1054 (2015), the Kansas
Supreme Court adopted the categorical and modified categorical approaches. The court
further noted that in classifying a prior burglary conviction, the district court must
determine whether the prior offense occurred involved a "dwelling." However, if making
such a determination requires judicial fact-finding, the district court must classify the
offense as a nonperson felony as the judicial fact-finding violates the defendant's
constitutional rights. See 301 Kan. at 1021. The Dickey court held that to avoid
prohibited judicial fact-finding, the dwelling requirement must have been an element of
the prior offense. 301 Kan. at 1039.

In Wetrich, 412 P.3d at 990-91, the Kansas Supreme Court adopted the identical-
or-narrower rule, finding that permitting district courts to make "imprecise, ad hoc
comparison[s]" of out-of-state convictions was contrary to the purpose of the KSGA.
Equal treatment of offenders is the principle of the KSGA and Kansas courts can only
ensure balanced and consistent outcomes through use of the identical-or-narrower rule.
412 P.3d at 991.

The Wetrich court determined that Missouri's statute for burglary in the second
degree contains two broader elements than the Kansas statute—intent and structure. 412
P.3d at 992. Missouri's first and second degree burglary offenses have identical generic
elements, the two statutes vary in the additional elements required for the more severe
offense. The Kansas burglary offense requires the intent to commit a felony, theft, or
sexually motivated crime, whereas Missouri's requires the intent to commit any crime.
The Missouri statute classifies a multitude of criminal acts as burglary that, while still
criminal, are not classified as burglary in Kansas. 412 P.3d at 992-93. Kobel correctly
concluded that the intent element was broader, making the offenses incomparable. When
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Kansas does not have a comparable offense in effect at the time the current crime of
conviction was committed, the out-of-state conviction must be classified as a nonperson
crime. K.S.A. 2017 Supp. 21-6811(e)(3). Because Kansas did not have an offense
comparable to Missouri's burglary offense in effect at the time Kobel committed the
aggravated battery in Kansas, his prior out-of-state conviction must be classified as a
nonperson felony. We vacate Kobel's sentence and remand for resentencing with a
criminal history score of B.

Kobel next argues the district court violated his constitutional rights by using his
prior convictions to increase his sentence.

A challenge to the constitutionality of the KSGA involves a question of law, over
which this court has unlimited review. State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781
(2002).

Kobel contends that, according to Apprendi, because his prior convictions were
not included in the complaint and the State did not prove them beyond a reasonable
doubt, using the convictions to increase the maximum penalty violated his rights under
the Sixth and Fourteenth Amendments to the United States Constitution. He
acknowledges that this issue has been previously decided and he included it to preserve
the issue for federal review. The State asserts that the Kansas Supreme Court has
resolved this issue in Ivory, when it determined that using defendants' criminal history
score as a basis for sentencing under the KSGA does not present an Apprendi issue. 273
Kan. 44, Syl.

In deciding Apprendi, the Supreme Court did not overrule Almendarez-Torres v.
United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), but instead
created a narrow exception to the rule. 530 U.S. at 489-90. In Almendarez-Torres, the
Court determined that the United States Constitution does not require the prosecution to
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submit the fact of a prior conviction to a jury and prove that fact beyond a reasonable
doubt. 523 U.S. at 226-27. The Apprendi Court stated that "[o]ther than the fact of a prior
conviction," facts that increase the penalty must be proven by a reasonable doubt and
submitted to a jury, creating the one narrow exception to the rule. 530 U.S. at 489-90.
Therefore, the use of an offender's criminal history as a basis for sentencing is
constitutional.

We vacate Kobel's sentence and remand for resentencing with a criminal history
score of B.

Sentence vacated and case remanded with directions.