State v. Lewis

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NOT DESIGNATED FOR PUBLICATION

Nos. 113,438
113,439
113,500

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

HAROLD L. LEWIS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge. Opinion filed April 15,
2016. Reversed and remanded with directions.

Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., BRUNS, J., and WALKER, S.J.

Per Curiam: Harold L. Lewis appeals from district court orders summarily
denying his motions to correct illegal sentences in three separate criminal cases, which
this court consolidated for appeal. Under the circumstances presented, we find that it is
necessary to remand this case so that the district court can review the appropriate
documents to ensure that Lewis was indeed convicted in 1978 of burglary of a habitation
under Texas law. Thus, we reverse the summary denial and remand this matter to the
district court for further proceedings consistent with this opinion.
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FACTS

On April 24, 2006, Lewis pled guilty in case number 05-CR-3213 to one count of
possession of cocaine, a severity level four drug felony. Lewis committed this crime on
August 16, 2005. During the same plea hearing, Lewis pled no contest in case number
06-CR-247 to one count of forgery, a severity level eight nonperson felony. Lewis
committed this crime on January 23, 2006.

Presentence investigation (PSI) reports prepared before sentencing in each case
indicated that Lewis had a criminal history score of B. The reports stated that Lewis had a
1978 Texas conviction for "Burglary of a Habitation" and a 1978 Texas conviction for
attempted murder, both of which were scored as person felonies. The PSI reports also
included a 1990 Kansas conviction for burglary of a motor vehicle, which was scored as a
nonperson felony. Lewis filed an objection to his criminal history, alleging that he was
not convicted of attempted murder or "burglary of a residence" in Texas.

The district court granted the State a 45-day continuance so that it could obtain
court documents from Texas regarding Lewis' prior convictions. At his sentencing
hearing, however, the State informed the district court that it was unable to obtain journal
entries from Texas. Nonetheless, Lewis voluntarily withdrew his objection. The district
court then granted Lewis downward dispositional departure sentences in both cases and
imposed two consecutive 18-month terms of probation with underlying 34-month and 19-
month prison sentences. Nearly 1 year later, the district court revoked Lewis' probation in
both cases and imposed the underlying prison sentences.

On May 10, 2007, Lewis evidently entered a plea in case number 07-CR-428 to
aggravated battery, criminal possession of a firearm, and aggravated escape from
custody. He committed these crimes on January 27, 2007, and February 2, 2007. When
asked during sentencing, Lewis' attorney stated that there was no objection to Lewis'
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criminal history score, and the district court sentenced him to serve 144 months in prison
for the aggravated battery count; 7 months in prison for the criminal possession of a
firearm count; and 7 months in prison for the aggravated escape from custody count. The
district court ordered the sentence for criminal possession of a firearm to run concurrent
to the sentence for aggravated battery but ordered the sentence for aggravated escape
from custody to run consecutive to the sentence for aggravated battery, resulting in a total
sentence of 151 months. Lastly, the district court ordered the total sentence to run
consecutive to Lewis' prior sentences.

Although Lewis did not file direct appeals in any of the three cases, he filed a
motion to correct illegal sentence in each case on December 24, 2014. In these motions,
Lewis argued that his prior Texas convictions for attempted murder and burglary of a
habitation should have been classified as nonperson offenses. The district court
summarily denied the motions on January 12, 2015. Lewis subsequently appealed in all
three cases, and this court entered an order of consolidation on April 8, 2015.

ANALYSIS

On appeal, Lewis contends that the district court erred by scoring his 1978 Texas
conviction for burglary of a habitation as a person felony. Whether a prior conviction was
properly classified as a person offense is a question of law over which this court exercises
unlimited review. State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015).
Interpretation of a statute is a question of law subject to de novo review. State v. Keel,
302 Kan. 560, 571, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016).

At the outset, we note that Lewis' appeal was docketed before H.B. 2053 (L. 2015,
ch. 5, secs. 1-5) became effective on April 2, 2015, before Dickey was decided, and
before State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), was overruled in Keel.
Because Murdock is no longer good law, we do not need to determine whether it
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retroactively applies to Lewis' case. See State v. Montgomery, 295 Kan. 837, 840, 286
P.3d 866 (2012); State v. Stevens, No. 112,649, 2015 WL 9591357, at *5 (Kan. App.
2015) (unpublished opinion) (Atcheson, J., concurring). In addition, the Kansas Supreme
Court recognized in Keel that "classifying a prior conviction or juvenile adjudication
based on the classification in effect for the comparable offense when the current crime
was committed complies with the Ex Post Facto Clause of the United States
Constitution." 302 Kan. at 589 (citing Nichols v. United States, 511 U.S. 738, 747, 114 S.
Ct. 1921, 128 L. Ed. 2d 745 [1994]). Accordingly, Lewis' concerns over retroactive
application of H.B. 2053 are no longer valid.

Although the State contends that Lewis cannot seek relief under Dickey because he
is challenging his criminal history score in a collateral attack, this court has held that a
claim under Dickey may be brought in a motion to correct an illegal sentence at any time.
Specifically, in State v. Martin, 52 Kan. App. 2d ___, Syl. ¶ 8, ___ P.3d ___ (No.
113,189, filed March 4, 2016), the court held that a constitutional violation under Dickey
may be brought in a motion to correct illegal sentence even when the time for direct
appeal has passed and the defendant's sentence is final. We find Martin persuasive.

In a similar vein, the State argues that Lewis cannot challenge his criminal history
score because he previously raised and then abandoned the issue before the district court.
A review of the record on appeal, however, reveals that Lewis previously challenged the
existence of the 1978 conviction for burglary of a habitation—not its classification. As
our Supreme Court has made clear, a defendant may use a motion to correct illegal
sentence to "challenge for the first time on appeal the classification of his or her prior
convictions and/or the resulting criminal history score used to sentence him or her under
the Kansas Sentencing Guidelines Act." Dickey, 301 Kan. 1018, Syl. ¶ 3. As such, Lewis'
claim is properly before this court.

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Turning to the merits of the issue presented, we must determine whether the 1978
Texas conviction for burglary of a habitation is comparable to the Kansas burglary statute
in effect when Lewis committed the current crimes. The essential question is whether the
offenses are similar in nature and cover similar conduct. State v. Barajas, 43 Kan. App.
2d 639, 643, 230 P.3d 784 (2010). The statutes need not be identical. State v. Williams,
299 Kan. 870, 875, 326 P.3d 1070 (2014); State v. Vandervort, 276 Kan. 164, 179, 72
P.3d 925 (2003).

At the time Lewis committed his current crimes, burglary was defined in Kansas
as follows:

"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.

The Kansas Supreme Court has observed that this statute

"classifies subsection (a) burglaries, i.e., dwelling burglaries, as person felonies, whereas
burglaries under subsections (b) and (c), i.e., nondwelling burglaries, are classified as
nonperson felonies. Quite simply, '[i]f the building is a dwelling, the crime is classified as
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a person felony; if not, it is a nonperson felony.' [Citation omitted.]" State v. O'Connor,
299 Kan. 819, 823, 326 P.3d 1064 (2014).

The Texas burglary of a habitation statute under which Lewis was convicted in
1978, provided in relevant part as follows:

"(a) A person commits an offense if, without the effective consent of the owner,
he:

(1) enters a habitation, or a building (or any portion of a building) not
then open to the public, with intent to commit a felony or theft; or

(2) remains concealed, with intent to commit a felony or theft, in a
building or habitation; or

(3) enters a building or habitation and commits or attempts to commit a
felony or theft.

. . . .

"(c) Except as provided in Subsection (d) of this section, an offense under this
section is a felony of the second degree.

"(d) An offense under this section is a felony of the first degree if:

(1) the premises are a habitation; or

(2) any party to the offense is armed with explosives or a deadly weapon;
or

(3) any party to the offense injures or attempts to injure anyone in
effecting entry or while in the building or in immediate flight from the building."
Tex. Penal Code Ann. § 30.02 (West 1974).
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In 1978, Texas defined the word "habitation" to mean "a structure or vehicle that
is adapted for the overnight accommodation of persons" and "building" to mean "any
enclosed structure intended for use or occupation as a habitation or for some purpose of
trade, manufacture, ornament, or use." Tex. Penal Code Ann. § 30.01(1), (2) (West
1974).

Moreover, at the time Lewis committed the current crimes, the Kansas Sentencing
Guidelines Act (KSGA) explained how prior burglary convictions were to be scored:

"(d) Prior burglary adult convictions and juvenile adjudications will be scored for
criminal history purposes as follows:

(1) As a prior person felony if the prior conviction or adjudication was classified
as a burglary as described in subsection (a) of K.S.A. 21-3715 and amendments thereto.

(2) As a prior nonperson felony if the prior conviction or adjudication was
classified as a burglary as described in subsection (b) or (c) of K.S.A. 21-3715 and
amendments thereto.

"The facts required to classify prior burglary adult convictions and juvenile
adjudications must be established by the state by a preponderance of the evidence."
K.S.A. 21-4711(d).

The KSGA also explained that courts were to score out-of-state convictions as
follows:

"Out-of-state convictions and juvenile adjudications will be used in classifying
the offender's criminal history. An out-of-state crime will be classified as either a felony
or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in
another state, it will be counted as a felony in Kansas. The state of Kansas shall classify
the crime as person or nonperson. In designating a crime as person or nonperson
comparable offenses shall be referred to. If the state of Kansas does not have a
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comparable offense, the out-of-state conviction shall be classified as a nonperson crime."
K.S.A. 21-4711(e).

Our Supreme Court recently clarified that "regardless of when a prior out-of-state
conviction or juvenile adjudication took place (i.e., before or after July 1, 1993), the out-
of-state conviction or adjudication is classified to match the comparable post-KSGA
criminal statute." Keel, 302 Kan. at 581.

Lewis argues that the district court's classification of his 1978 Texas burglary of a
habitation conviction as a person felony violates 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). Under Apprendi,
"[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. More recently, our Supreme Court
explained in Dickey that

"[t]he 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 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." 301 Kan. 1018, Syl. ¶ 7.

In Descamps, the United States Supreme Court identified two approaches a
sentencing court may use to analyze prior convictions without violating Apprendi. The
two approaches are the categorical approach—which is appropriate when a defendant
was convicted of a crime with a "single, indivisible set of elements"—and the modified
categorical approach—which is appropriate when a defendant was convicted under a
divisible statute that sets out one or more elements of the offense in the alternative. 133 S.
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Ct. at 2281-82. These approaches were adopted by the Kansas Supreme Court in Dickey,
301 Kan. at 1036-40.

Under the categorical approach, a sentencing court compares "the elements of the
statute forming the basis of the defendant's conviction with the elements of the 'generic'
crime." Descamps, 133 S. Ct. at 2281; Dickey, 301 Kan. at 1037. The prior conviction
may be counted as a predicate offense if the elements of the prior conviction are the same
as, or narrower than, the elements of the corresponding crime. However, the modified
categorical approach should be applied when a sentencing court is unable to determine
whether a defendant's prior conviction is a predicate offense by simple examination of the
statute's elements. Dickey, 301 Kan. at 1037. Under this modified test, a sentencing court
determines which of a statute's alternative elements formed the basis for a prior
conviction by looking to "charging documents, plea agreements, jury instructions, verdict
forms, and transcripts from plea colloquies as well as findings of fact and conclusions of
law from a bench trial." 301 Kan. at 1038.

The State agrees—assuming this court finds that the issue is properly before this
court—that it would be appropriate to remand to the district court to determine the issue
of whether Lewis' 1978 Texas conviction for burglary of a habitation would fit within
Kansas' definition of burglary of a dwelling at the time he was convicted of his under
current crimes. We note that State v. Mullens, 51 Kan. App. 2d 1114, 1117, 360 P.3d
1107 (2015), found Texas' definition of "habitation" in 2003 (which is the same definition
used in 1978) "clearly fits within the Kansas definition of 'dwelling.'" Compare K.S.A.
21-3110(7) ("'Dwelling' means 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.") with Tex. Penal Code Ann. § 30.01(1) (West 1974) ("'Habitation' means a
structure or vehicle that is adapted for the overnight accommodation of persons . . . .").
Although we agree that the Texas definition of habitation fits within the Kansas
definition of dwelling, we conclude that it is appropriate for the district court to
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determine—by looking at documents from the 1978 Texas case—whether the prior
conviction actually involved a burglary of a habitation as the PSI indicates. After doing
so, the district court can determine whether the 1978 Texas burglary conviction is
comparable to Kansas' burglary statute in effect at the time Lewis committed the current
crimes.

Reversed and remanded with directions.