State v. Lewis

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NOT DESIGNATED FOR PUBLICATION

Nos. 118,401
118,402
118,403

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 S. WOOLLEY, judge. Opinion on remand filed
November 15, 2019. Affirmed.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., ATCHESON and GARDNER, JJ.

PER CURIAM: This case, remanded by the Kansas Supreme Court, requires us to
revisit the classification of Harold L. Lewis' criminal history. Applying the law that was
in effect at the time of Lewis' sentencing, we find that his Texas conviction in 1978 for
burglary of a habitation is comparable to the Kansas crime of residential burglary, a
person crime. Because the district court correctly classified his criminal history, we
affirm.

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Factual and Procedural Background

Harold L. Lewis pleaded guilty to possession of cocaine in case No. 05 CR 3213
for a crime he committed in August 2005. At the same plea hearing, he pleaded no
contest to forgery in case No. 06 CR 247, committed in January 2006. In case No. 07 CR
428, Lewis pleaded no contest to aggravated battery, criminal possession of a firearm,
and aggravated escape from custody, committed in February 2007. The district court
sentenced Lewis in 2007 in all three cases using a criminal history score of B. That score
was based in part on Lewis' 1978 Texas conviction for burglary of a habitation, which the
district court scored as a person felony.

In 2014, Lewis moved to correct an illegal sentence based on State v. Murdock,
299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel, 302 Kan. 560, 357 P.3d
251 (2015), arguing that the district court should have classified his pre-1993 person
convictions as nonperson convictions. The district court denied that motion and held that
Murdock did not apply retroactively to Lewis' cases. Lewis appealed, arguing that the
district court imposed an illegal sentence by erroneously classifying his 1978 Texas
burglary of a habitation conviction as a person felony under State v. Dickey, 301 Kan.
1018, 1034, 350 P.3d 1054 (2015). State v. Lewis, No. 113,438, 2016 WL 1546133 (Kan.
App. 2016) (unpublished opinion).

A panel of this court agreed with the State that Texas' definition of habitation fit
within Kansas' definition of dwelling, but we reversed and remanded the case anyway.
We directed the district court: (1) to review court documents from the 1978 case and
determine whether the prior conviction involved burglary of a habitation; and (2) to
determine whether Texas' 1978 burglary statute was comparable to the Kansas burglary
statute in effect when Lewis committed his current crimes of conviction. Lewis, 2016 WL
1546133, at *5.

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At the hearing on remand, Lewis argued that the district court should score his
1978 Texas conviction as a nonperson felony because the facts showed his crime
involved a separate garage without an entrance to the house. The district court rejected
that argument, determined that Lewis' Texas burglary involved a crime comparable to
Kansas' person burglary, and found it was properly scored as a person crime. Lewis
appealed. All three cases were consolidated on appeal.

Lewis argued to a second panel of this court that his sentence was illegal because
the district court had erroneously classified his 1978 Texas burglary conviction as a
person felony. He contended that Texas' burglary of a habitation was not comparable to
Kansas' burglary of a dwelling because Texas' definition of habitation was broader than
Kansas' definition of dwelling, encompassing both nondwelling buildings or structures
and unenclosed property that would not constitute burglary of a dwelling in Kansas.

We agreed, applying State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). That
case held that for an out-of-state conviction to be comparable to a Kansas crime under
K.S.A. 2017 Supp. 21-6811(e)(3), the elements of the out-of-state crime must be identical
to or narrower than the elements of the Kansas crime to which it is being compared.
Wetrich, 307 Kan. 552, Syl. ¶ 3. Yet that construction of the statute was contrary to the
way the court had analyzed the statute in the past. See, e.g., State v. Williams, 299 Kan.
870, 873, 326 P.3d 1070 (2014) ("comparable offense" means "the offenses need only be
comparable, not identical") (quoting State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925
[2003], overruled on other grounds by Dickey, 301 Kan. 1018 [2015]).

We held that the elements of Lewis' 1978 Texas burglary of a habitation
conviction were broader than and thus not comparable to the elements of his Kansas
burglary. State v. Lewis, No. 118,401, 2018 WL 6711263, at *5 (Kan. App. 2018)
(unpublished opinion). The State petitioned for review and the Kansas Supreme Court
granted that petition. On review, the Kansas Supreme Court summarily vacated our
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decision and "remand[ed] this matter to the Court of Appeals for consideration in light of
State v. Weber, 309 Kan. 1203, 442 P.3d 1044 (2019); State v. Newton, 309 Kan. 1070,
442 P.3d 489 (2019); and State v. Dubry, 309 Kan. 1229, 444 P.3d 328 (2019)." We now
consider Lewis' argument in light of those cases.

Analysis

Weber, Newton, and Dubry were decided the same day. They held that Wetrich
was a change in the law and that a subsequent change in law regarding consideration of
prior out-of-state convictions does not render a sentence, which was legal when imposed,
illegal for purposes of a collateral attack. Those cases underscored State v. Murdock, 309
Kan. 585, 591, 439 P.3d 307 (2019) (Murdock II ), which held:

"[T]he legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at
the time the sentence was pronounced. The legality of a sentence is fixed at a discrete
moment in time—the moment the sentence was pronounced. At that moment, a
pronounced sentence is either legal or illegal according to then-existing law. Therefore,
for purposes of a motion to correct an illegal sentence, neither party can avail itself of
subsequent changes in the law." 309 Kan. at 591.

Thus our prior decision erred in applying Wetrich. We must determine the legality of
Lewis' sentence under K.S.A. 22-3504 by the law in effect at the time his sentence was
pronounced—2007, not based on Wetrich, decided in 2018.

Under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., a district
court must classify each prior out-of-state conviction as a "person" or "nonperson" crime.
K.S.A. 21-4711(e) provides:

"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
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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
comparable offense, the out-of-state conviction shall be classified as a nonperson crime.
Convictions or adjudications occurring within the federal system, other state systems, the
District of Columbia, foreign, tribal or military courts are considered out-of-state
convictions or adjudications. The facts required to classify out-of-state adult convictions
and juvenile adjudications must be established by the state by a preponderance of the
evidence." (Emphasis added.)

In 2007, when Lewis was sentenced, Kansas caselaw construed this statute to
mean "[f]or purposes of determining criminal history, the offenses need only be
comparable, not identical." Vandervort, 276 Kan. at 179. "'[T]he comparable offense' was
'the closest approximation' to the out-of-state crime. 276 Kan. at 179." Weber, 309 Kan.
at 1206.

As Weber makes clear, the "closest approximation" test controlled the
determination of comparability for purposes of criminal history until Wetrich was
decided in 2018.

"Before Wetrich, no Kansas case construed the term 'comparable' as used in K.S.A. 2018
Supp. 21-6811(e)(3), formerly K.S.A. 21-4711(e), to incorporate the identical-or-
narrower requirement. Vandervort rejected such a construction when it reviewed a
defendant's claim that an out-of-state offense and a Kansas offense could not be
comparable since the out-of-state offense was broader, i.e., did not contain a lack-of-
consent element required to commit the Kansas crime. See 276 Kan. at 178-79
('Vandervort confuses the term "comparable" with the concept of identical elements of
the crime.'). Wetrich substituted the statute's new interpretation for the old one. See 307
Kan. at 562." 309 Kan. at 1209.

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Thus in Weber, as in Newton and Dubry, the legality of the defendant's sentence
was determined by the comparability test applied in Vandervort, not the identical
elements test imposed later by Wetrich.

"Under the law at the time of Weber's sentencing, as he concedes, '[f]or purposes
of determining criminal history, the offenses need only be comparable, not identical.'
Vandervort, 276 Kan. at 179. In Murdock II 's wake, he cannot argue Wetrich makes his
sentence, which was legal when it was imposed, illegal. See State v. Newton, 309 Kan.
1070, 1073-74, 442 P.3d 489 (2019)." Weber, 309 Kan. at 1209.

Weber, Newton, and Dubry each applied the pre-Wetrich closest approximation test and
upheld the categorizations of comparable out-of-state crimes as person crimes in Kansas.
We apply that same test here.

Lewis was convicted of burglary of a habitation in 1978 under the following Texas
statute:

"(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." Tex. Penal Code Ann. § 30.02.

Kansas' burglary statute in 2007, when Lewis was sentenced for his current
crimes, stated:

"Burglary is knowingly and without authority entering into or remaining within any:
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(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." K.S.A. 21-3715.

Burglary as described in subsection (a) is a person felony. Burglary as described in
subsections (b) and (c) are nonperson felonies. K.S.A. 21-3715.

Lewis' argument is that the person-crime classification based on the Texas statute's
similarities to the Kansas statute was improper because the Texas statute criminalizes a
broader range of conduct than the Kansas offense. But under Vandervort, this argument is
unavailing. See 276 Kan. at 179 (rejecting argument that Virginia crime that lacked
nonconsent element required to be guilty of Kansas person offense rendered crimes
incomparable); see also Dubry, 309 Kan. at 1233 (finding the broader range argument
unavailing under Vandervort). Here, as in Dubry, "Any viability to [defendant's]
argument turns on whether the new rule announced in Wetrich applies to his sentence.
But we have determined already that it does not apply." Dubry, 309 Kan. at 1232-33.

The Texas statute under which Lewis was charged and convicted identified
kindred, though different, forms of burglary—one criminalizing entry into a residence or
"habitation" and the other criminalizing entry into other buildings. Burglarizing a
habitation, as Lewis did, carried a more severe punishment. Tex. Penal Code Ann.
§ 30.02(d)(1). And burglary of a building was considered a lesser included offense of
burglary of habitation. See Bartley v. State, 789 S.W.2d 288, 291-92 (Tex. App. 1990). A
defendant in Texas would be indicted for one or the other rather than a generic charge of
burglary. 789 S.W.2d at 290-91. Although the language in Tex. Penal Code Ann. §
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30.02(a) does not draw an especially clear distinction between burglary of a habitation
and burglary of a building, they are separate offenses.

Here, the district court had the indictment, the entry of judgment, and other
documents from Lewis' 1978 Texas conviction. Those documents all identify the crime as
burglary of a habitation. So the district court could rely on those materials to determine
the nature of the Texas crime without considering any facts specific to Lewis' conviction,
thus comporting with the constitutional limitations on judicial fact-finding laid out in
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

In turn, the statutory definition of "habitation" in Tex. Penal Code Ann. § 30.01(1)
was comparable to, though marginally broader than, the definition of "dwelling"
applicable to K.S.A. 21-3715, criminalizing burglary at the time of Lewis' underlying
convictions in this case. See K.S.A. 21-3110(7). The Texas definition included structures
"appurtenant to or connected with" the residence, such as a garage. Tex. Penal Code Ann.
§ 30.01(1)(B). But both the Texas and Kansas statutes aim to deter burglary of residences
by more harshly punishing that crime than other forms of burglary. They are
"comparable" in that objective and the overarching description of the crime. The minor
difference in scope does not negate their close similarity. The district court, therefore,
properly treated Lewis' 1978 Texas conviction as comparable to burglary of a dwelling
under K.S.A. 21-3715 and, thus, a person felony for criminal history purposes.

The elements of Texas' crime of burglary of a habitation may be broader than the
elements of Kansas' crime of residential burglary—under Texas law an unenclosed
structure could be a habitation, while under Kansas law a dwelling must be enclosed. And
Texas may consider an unattached garage to be a habitation, while Kansas would not
consider a garage to be a dwelling. Even so, the two statutes remain comparable as that
term was defined before Wetrich, at the time of Lewis' 2007 sentencing. Both statutes
criminalize the unauthorized entry into a dwelling with intent to commit a felony or theft.
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The Kansas burglary statute is similar in nature and covers a similar type of criminal
conduct as does the Texas burglary of a habitation statute. See State v. Weber, No.
113,472, 2016 WL 5867238, at *2 (Kan. App. 2016) (unpublished opinion), aff'd 309
Kan. 1203 (reasoning that "the 'essential question'" in making the person/nonperson
designation was whether the out-of-state and Kansas offenses being compared are
"'similar in nature and cover similar conduct'").

We find K.S.A. 21-3715(a) is the Kansas statute that is the closest approximation
to the Texas burglary of a habitation statute. Violation of that Kansas statute is a person
offense. Thus, Lewis' Texas burglary must also be scored as a person offense. See K.S.A.
21-4711(e).

Lewis' sentence was legal when it was imposed. Wetrich does not render Lewis'
sentence, which was legal when it was imposed, illegal. The district court properly scored
Lewis' 1978 Texas conviction for burglary of a habitation as a person crime.

Affirmed.