State v. Marsh

1

NOT DESIGNATED FOR PUBLICATION

No. 115,048

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FREDERICK EUGENE MARSH,
Appellant.


MEMORANDUM OPINION

Appeal from Bourbon District Court; AMY L. HARTH, judge. Opinion filed December 2, 2016.
Affirmed in part, reversed in part, and remanded with directions.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, for appellee.

Before BRUNS, P.J., GREEN, J., and WILLIAM S. WOOLLEY, District Judge, assigned.

Per Curiam: Frederick Eugene Marsh appeals from the district court's denial of
his 2015 motion to correct illegal sentence, alleging the district court should not have
classified a 1992 burglary conviction and a 1991 attempted aggravated assault conviction
as person felonies. Marsh argues these convictions should not have been scored as person
felonies, citing State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015); State v. O'Connor,
299 Kan. 819, 326 P.3d 1064 (2014); and State v. Long, No. 110,852, 2014 WL 4723750
(Kan. App. 2014) (unpublished opinion).

2

After holding an evidentiary hearing on the classification of the 1992 burglary, the
district court improperly classified the burglary conviction as a person felony. However,
the district court properly classified the 1991 aggravated assault conviction as a person
felony. Therefore, the district court should have granted the motion in part and denied the
motion in part. Thus, we affirm in part, reverse in part, and remand to the district court
with instructions to direct the preparation of an amended presentence investigation (PSI)
report in accordance with our ruling and to hold a new sentencing hearing.

FACTS AND PROCEDURAL BACKGROUND

This case is unusual because the district court heard testimonial evidence at the
sentencing hearing on the facts surrounding the 1992 burglary conviction.

On October 31, 2013, Frederick Marsh pleaded guilty to one count of unlawful
possession of methamphetamine with intent to distribute. The PSI report assigned Marsh
a criminal history score of "B". Marsh's criminal history consisted of 10 prior
convictions: Six nonperson adult misdemeanors, two unscored adult misdemeanors, and
two adult person felonies. The two adult felony convictions that were classified as person
felonies were both Kansas convictions: A 1991 attempted aggravated assault conviction
and a 1992 burglary conviction.

Before sentencing, Marsh filed a motion to challenge criminal history, objecting to
having the 1992 burglary conviction being classified as a person felony because the
burglary conviction was before Kansas implemented the sentencing guidelines. The
motion did not state an objection to having the 1991 attempted aggravated assault
conviction being classified in his criminal history as a person felony. The motion also
noted that Marsh had previously filed a pro se motion in 1996, asserting a challenge to
the 1992 burglary classification.

3

The State opposed Marsh's renewed challenge to his criminal history. In its
response to Marsh's challenge to the classification of the burglary conviction as a person
felony, the State said that it would present certified copies of the 1992 complaint, 1992
plea journal entry, 1992 sentencing journal entry, and 1992 PSI report, all of which the
State argued would clearly reflect that the defendant had pleaded guilty to burglary of a
home, a person felony. The State also alleged that Marsh had admitted on at least two
occasions that the burglary conviction was a conviction for burglary of a home.

On April 23, 2014, the district court heard the challenge to the criminal history.
The State presented evidence to which Marsh's counsel made no general objections to the
procedure. There was no procedural discussion, such as a request for jury trial or waiver
of a jury trial.

At the April 23, 2014, hearing, the State offered several exhibits purporting to
show that Marsh's burglary conviction was for the burglary of a dwelling. The State's first
exhibit was a copy of the complaint in 92CR258, the burglary conviction. Count 1 of the
1992 burglary charging complaint stated that Marsh "entered into the home of Lynn
Robinson with the intent to commit theft therein."

Next, the State introduced a copy of Marsh's guilty plea to the burglary count in
the 1992 complaint. In addition, the State also admitted the PSI report for the burglary
sentencing. As part of the introduction of this evidence, the State asked the court to take
special notice of Marsh's version of events as written in the PSI report, which the State
characterized as Marsh admitting that "he entered a home and stole items from a
residence or from a home." Marsh's 1992 version of the events, as he wrote for the 1992
PSI report, stated that he stole a chain saw, weed eater, tools, a microwave oven, color
TV, and an air compressor from a house and shed owed by Lynn Robinson. Later, Marsh
wrote that he and his friend "went to the hous[e] . . . went in took the [s]tuff and took it to
the [auction]."
4

Finally, the State admitted exhibits from Marsh's 1999 conviction for possession
of cocaine. The State emphasized to the court that the PSI report for the 1999 possession
of cocaine conviction scored the 1992 burglary conviction as a person felony. The State
noted that for the 1999 possession of cocaine sentencing, Marsh's attorney had filed a
motion for departure in which Marsh's attorney acknowledged that Marsh had a previous
conviction for burglary of a dwelling for purposes of the motion. The 1999 sentencing
departure motion does state that Marsh had a conviction for burglary of a dwelling.

After the State finished admitting its exhibits at the April 23, 2014, hearing on the
objection to the criminal history, Marsh testified. Marsh testified that the structure that
was burglarized was not a dwelling, but rather an unoccupied structure. Marsh described
it as a cabin and two sheds. He said he did not go into the cabin but only went into the
two sheds. Marsh testified that he was told nobody lived in the cabin and it was "just for
show." Then, he said he "never entered the house." However, on cross-examination,
when the State asked whether Marsh admitted that he went in the house in the 1992 PSI
Marsh said, "I admit to goin' inside the home." But then Marsh said, "that ain't what
happened."

At the April 2014 hearing, the district court found the State had met its burden of
proof by a preponderance of the evidence that the burglary conviction should be
classified in Marsh's criminal history as a person felony. The court said that the most
convincing evidence was the PSI report in which Marsh stated in his own words that he
was at a house. With the 1992 burglary and the uncontested 1991 attempted aggravated
assault convictions included in the criminal history, both classified as person felonies, the
district court sentenced Marsh to 122 months' imprisonment.

A search of the appellate court records shows that there is no appeal docketed of
the district court's sentence in this case.

5

Subsequently, on January 9, 2015, Marsh filed a motion to correct illegal sentence
in which he objected to having the 1992 burglary classified as a person felony in his
criminal history. Again, Marsh did not object to having the 1991 attempted aggravated
assault conviction classified as a person felony in his criminal history.

In his motion to support his argument, Marsh cited State v. Murdock, 299 Kan.
312, 323 P.3d 846 (2014), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015).
Marsh filed an amended motion, adding three new case citations as authority: Dickey,
301 Kan. 1018; O'Connor, 299 Kan. 819; and Long, 2014 WL 4723750. The State
objected and argued that Marsh's motion should be denied without the need for a hearing
because Murdock dealt with classifying out-of-state convictions and all of Marsh's
convictions were in Kansas. The State did not address the issue of whether Dickey could
be applied to Marsh's motion.

The district court chose to have a hearing at which the district court denied
Marsh's motion, finding that Murdock did not apply because all of Marsh's relevant
convictions were in Kansas. The district court stated it did not address whether Dickey or
the other cases cited by Marsh could be applicable to the 1992 burglary conviction.

Marsh timely appealed.

ANALYSIS

Did the district court properly classify Marsh's 1992 burglary conviction as a person
felony?

On appeal, Marsh argues that pursuant to Apprendi v. New Jersey, 530 U.S. 466,
490, 123 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Dickey, a court may not find that a
defendant burglarized a dwelling unless the existence of a dwelling was a statutory
element of the offense at the time of the defendant's prior conviction. At the time of
6

Marsh's 1992 burglary conviction, the Kansas burglary statute did not require a court to
find that Marsh burglarized a dwelling in order to be convicted of burglary. Therefore,
Marsh argues that the district court improperly scored Marsh's 1992 burglary conviction
as a person felony.

The State argues that caselaw permitting Dickey to be applied through a motion to
correct an illegal sentence—especially to a final conviction—was wrongly decided. The
State also argues that there was no Apprendi violation because there can be no Apprendi
violation if the facts are admitted by the defendant. In support, the State cites several
places in the record where the State claims that Marsh admitted he burglarized a dwelling
or home in 1992. The State also argues that if there is an Apprendi violation, the error is
harmless because Marsh's own admissions provide overwhelming and uncontested
evidence that the 1992 burglary conviction involved a dwelling.

1. Apprendi, Descamps, and Dickey

K.S.A. 22-3504(1) provides that a "court may correct an illegal sentence at any
time." Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question
of law over which the appellate court has unlimited review. State v. Lee, 304 Kan. 416,
417, 372 P.3d 415 (2016). Additionally, determining "[w]hether a prior conviction or
adjudication was properly classified as a person or nonperson crime for criminal history
purposes raises a question of law subject to unlimited review." Dickey, 301 Kan. at 1034.

In Dickey, our Supreme Court emphasized the application of Apprendi in Kansas,
holding that under Apprendi, other 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. 301 Kan. at 1036, citing
Apprendi, 530 U.S. at 490.
7

The court in Dickey further stated: "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." 301 Kan. at
1036, citing Descamps v. United States, 570 U.S. __, 133 S. Ct. 2276, 2288-89, 186 L.
Ed. 2d 438 (2013).

In Dickey, our Supreme Court addressed the issue of classifying a pre-Kansas
Sentencing Guidelines Act burglary offense. Our Supreme Court explained:

"[I]n order to classify a prior burglary conviction or adjudication as a person offense
under K.S.A. 2014 Supp. 21-6811(d), a sentencing court must find that the prior burglary
involved a 'dwelling,' i.e., '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. 2014 Supp. 21-5111(k). But the burglary statute in effect when Dickey committed
his prior burglary did not require evidence showing that the structure burglarized was a
dwelling. See K.S.A. 1991 Supp. 21-3715. Thus, determining whether Dickey's prior
burglary involved a dwelling would necessarily involve judicial factfinding that goes
beyond merely finding the existence of a prior conviction or the statutory elements
constituting that prior conviction. Accordingly . . . classifying Dickey's prior burglary
adjudication as a person felony violates his constitutional rights as described under
Descamps and Apprendi." Dickey, 301 Kan. at 1021.

As determined by our Supreme Court in Dickey, the burglary statute in effect
when Marsh committed his 1992 prior burglary did not require evidence showing that the
structure burglarized was a dwelling. See Dickey, 301 Kan. at 1022; K.S.A. 1991 Supp.
21-3715(1) (defining burglary as "knowingly and without authority entering into or
remaining within any: (1) Building, manufactured home, mobile home, tent or other
structure, with the intent to commit a felony or theft therein.").

8

This court recently addressed whether a conviction under the 1992 burglary statute
can be scored as a person felony in State v. Olivas, No. 113,451, 2016 WL 1391786
(Kan. App. 2016) (unpublished opinion), petition for rev. filed April 29, 2016. In that
case, one of the crimes in Olivas' PSI report was described as "Burglary (Dwelling)."
Olivas, 2016 WL 1391786, at *1. Olivas did not object to his criminal history. On appeal,
Olivas "argued that his 1992 Kansas burglary conviction should have been classified as a
nonperson offense based on this court's decision in Dickey." 2016 WL 1391786, at *1.
This court held that because the 1992 burglary statute "did not contain a dwelling
element, the district court's person classification necessarily required judicial
factfinding." 2016 WL 1391786, at *3. The court then held that classifying Olivas' "1992
burglary conviction as a person felony violates his constitutional rights as described in
Descamps and Apprendi and as applied by the Kansas Supreme Court in Dickey." 2016
WL 1391786, at *3.

While the State argues that Dickey was incorrectly decided, we simply do not have
the authority to overrule our Supreme Court. See Dees v. Marion-Florence U.S.D. 408,
36 Kan. App. 2d 768, 782-83, 149 P.3d 1 (2006) (The Court of Appeals is duty bound to
follow Kansas Supreme Court precedent.). Thus, Marsh's 1992 burglary conviction
should not be classified as a person felony, absent legally justifiable reasons to do
otherwise.

2. Marsh's Admissions

The State argues, based upon the evidence at the hearing and Marsh's alleged
admissions, that Marsh admitted that in 1992 he committed a burglary of a dwelling. The
State argues that if Marsh admitted to the burglary of a dwelling, there is no Apprendi
violation, citing Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004). In essence, the State argues there is an exception to Apprendi's jury trial
9

requirement—that is when the defendant has admitted the facts necessary to enhance the
defendant's sentence.

In Blakely, the Supreme Court stated: "Our precedents make clear, however, that
the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant. " 542 U.S. at 303. In Blakely, the defendant was sentenced to more than 3
years beyond the statutory maximum sentence of 53 months because the state court found
he acted with deliberate cruelty. However, the Court held the facts supporting the
sentence were neither admitted by the defendant nor found by a jury. 542 U.S. at 303. In
reversing the sentence, the Court stated that when a judge inflicts a punishment that the
jury verdict alone does not allow, the jury has not found all the facts which the law makes
essential to the punishment and the judge exceeds his proper authority. 542 U.S. at 304.

The Court's decision in Blakely does not explain procedurally how a fact must be
admitted by the defendant, other than a citation to Apprendi, 530 U.S. at 488. Blakely,
542 U.S. at 303. However, Apprendi does not discuss the meaning of "admitted" and
merely references and discusses Almendarez-Torres v. United States, 523 U.S. 224, 118
S. Ct. 1219, 140 L. Ed. 2d 350 (1998):

"Because Almendarez-Torres had admitted the three earlier convictions for aggravated
felonies—all of which had been entered pursuant to proceedings with substantial
procedural safeguards of their own—no question concerning the right to a jury trial or the
standard of proof that would apply to a contested issue of fact was before the Court."
Apprendi, 530 U.S. at 488.

The "admission" referenced in Apprendi was an admission that Almendarez-
Torres made during a plea hearing. Almendarez-Torres, 523 U.S. at 227. At the plea
hearing, Almendarez-Torres admitted to the relevant elements of the statute under which
he was being charged, i.e., that he had previously been deported, that he had reentered the
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United States without permission and consent of the Attorney General, and that the
earlier deportation had taken place pursuant to three earlier convictions for aggravated
felonies. The facts admitted at the hearing were the facts necessary to find that he could
be found guilty of the all the elements of the crime to which he was charged. See 523
U.S. at 227.

The Supreme Court in Descamps reinforced the purpose of what facts are
important at a plea hearing if the government wants to use that conviction at a later
hearing to enhance a different sentence.

In Descamps, the government sought to enhance Descamps' sentence under the
Armed Career Criminal Act (ACCA) on the basis of Descamps' three prior convictions.
One of Descamps's convictions was for burglary under § 459 of the California Penal
Code. The § 459 definition of burglary went beyond the generic definition of burglary
because it did not require a breaking and entering. The district court utilized the modified
categorical approach to look at the plea colloquy and found that Descamps had admitted
the elements of a generic burglary. Because of this, the district court permitted the ACCA
sentence enhancement. The Ninth Circuit Court of Appeals affirmed, holding that where
a sentencing court considers a conviction under a statute "that is 'categorically broader
than the generic offense'" it may utilize the modified categorical approach to determine
whether a plea was based on facts that would satisfy the elements of a generic crime. See
133 S. Ct. at 2283.

The Supreme Court reversed, stating: "a conviction based on a guilty plea can
qualify as an ACCA predicate only if the defendant 'necessarily admitted [the] elements
of the generic offense.'" (Emphasis added.) 133 S. Ct. at 2284 (quoting Shepard v. United
States, 544 U.S. 13, 26, 125 S. Ct. 1254, 161 L. Ed. 2d 205 [2005]). The Court stated that
"the modified approach serves a limited function: It helps effectuate the categorical
analysis when a divisible statute, listing potential offenses in the alternative, renders
11

opaque which element played a part in the defendant's conviction." 133 S. Ct. at 2283.
The modified categorical approach did not apply to Descamps' situation "[b]ecause
generic unlawful entry is not an element, or an alternative element, of § 459, a conviction
under that statute is never for generic burglary." 133 S. Ct. at 2293. The Court also stated
"[w]hether Descamps did break and enter makes no difference. And likewise, whether he
ever admitted to breaking and entering is irrelevant. . . . We know Descamps' crime of
conviction, and it does not correspond to the relevant generic offense. Under our prior
decisions, the inquiry is over." (Emphasis added.) 133 S. Ct. at 2286. As such, any fact
finding that goes beyond determining whether the defendant's actions satisfied an element
of the crime charged violates Apprendi. See 133 S. Ct. at 2281-87.

Our Supreme Court in Dickey adopted this holding regarding the use of the
modified categorical approach, stating it applies, "when the statute forming the basis of
the prior conviction is a 'divisible statute,' i.e., a statute which includes multiple,
alternative versions of the crime and at least one of the versions matches the elements of
the generic offense." Dickey, 301 Kan. at 1037 (citing Descamps, 133 S. Ct. at 2281-82,
2284-86).

Importantly for our decision here, the Kansas Supreme Court held that a district
court is constitutionally prohibited from classifying a prior burglary adjudication as a
person felony when 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. Dickey, 301 Kan. at 1039. Thus,
looking beyond the statute to determine whether Marsh's prior burglary conviction
involved a dwelling would be constitutionally prohibited under Descamps and Apprendi.
See Dickey, 301 Kan. at 1039.

In this case, it was permissible for the district court in 2014 to have a hearing on
Marsh's objection to classifying the 1992 burglary conviction as a person felony.
12

However, the district court was constitutionally prohibited from making or adopting
factual findings that went beyond simply identifying the statutory elements that
constituted the 1992 burglary conviction.

This makes sense in the context of the right to jury trial. In Kansas, a burglary is
classified as a person felony if the burglarized structure is a dwelling. Like the burglary
statute in Descamps, the 1992 Kansas burglary statute "was comprised of multiple,
alternative versions of the crime," but "none included an element requiring that the
structure burglarized be a dwelling." Dickey, 301 Kan. at 1039. In 1992, a jury would not
have needed to find Marsh committed the burglary of a dwelling because dwelling was
not a statutory element of the crime of burglary in 1992. Similarly, the court in 1992 did
not need to make factual findings at the plea hearing that Marsh committed the burglary
of a dwelling. In 1992, the court only needed to find that there was a sufficient factual
basis that met the elements of the crime of burglary in 1992.

a. 1992 sentencing .

At the 2014 sentencing, the district court went beyond merely considering the
elements of the 1992 burglary conviction when the court considered the charging
document, what Marsh said at the 1992 plea hearing, and what Marsh said at the PSI
investigation. In doing this, the district court's actions constituted making and adopting
findings of fact that went beyond simply identifying the statutory elements that
constituted the prior burglary conviction.

Marsh could not admit to the burglary of a dwelling in 1992 because the crime of
"burglary of a dwelling" did not exist in 1992 as distinct to the crime of burglary. Thus,
Apprendi was implicated by the district court's actions at the 2014 sentencing.

13

Therefore, it was error for the district court in 2014 to consider the 1992 burglary
charging document, what Marsh said at his 1992 plea hearing, and what Marsh said to the
PSI preparers in determining whether to classify the 1992 burglary conviction as person
felony.

b. 1999 sentencing for an unrelated crime, possession of cocaine.

As part of the court's decision to classify the 1992 burglary conviction, the district
court also considered actions taken surrounding Marsh's sentencing hearings for his 1999
cocaine conviction. In particular, the State emphasized to the court that the PSI report for
the 1999 possession of cocaine conviction scored the 1992 burglary conviction as a
person felony. In addition, the State noted that for the 1999 sentencing, Marsh's attorney
had filed a motion for departure in which Marsh's attorney acknowledged that Marsh had
a previous conviction for" burglary of a dwelling" for purposes of the motion.

The court in Dickey addressed the issue of a defendant's failure to object to
criminal history classification, stating:

"But a stipulation or lack of an objection regarding how those convictions should be
classified or counted as a matter of law for the purpose of determining the defendant's
criminal history score will not prevent a subsequent challenge under K.S.A. 22-3504(1)
of his or her prior convictions. [State v. Weber, 297 Kan. 805, 814-15, 304 P.3d 1262
(2013)]. Accordingly, to the extent that Vandervort, Goeller, and McBride stand for the
proposition that a legal challenge under K.S.A. 22-3504(1) is waived if the defendant
stipulated or failed to object at sentencing to the classification of prior convictions or the
resulting criminal history score, those cases are specifically overruled." 301 Kan. at 1032.

K.S.A 22-3504(1) expressly states that the court may correct an illegal sentence
"at any time." See State v. Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015); State v. Neal,
292 Kan. 625, 631, 258 P.3d 365 (2011); State v. Martin, 52 Kan. App. 2d 474, Syl. ¶ 5,
14

369 P.3d 959 (2016) ("Applying the doctrine of res judicata to bar challenges of an illegal
sentence merely because they could have been brought in a direct appeal would
undermine the clear statutory directive in K.S.A. 22-3504[1] that courts may correct an
illegal sentence at any time."), petition for rev. filed May 5, 2016.

Therefore, a defendant's failure to object to a classification of his criminal history
does not bar a subsequent objection to, or act as a stipulation to, the classification of
convictions listed in the defendant's criminal history. Likewise, Marsh's counsel's
statements made in the 1999 departure motion were unrelated to a challenge to Marsh's
criminal history. Like statements made at a plea hearing, the statements made in a
subsequent motion are not admissions for determining whether the defendant has given a
sufficient factual basis at a hearing to determine if the defendant is guilty of the crime.

In doing this, the district court's actions constituted making and adopting findings
of fact that went beyond simply identifying the statutory elements that constituted the
prior burglary conviction. Thus, it was error for the district court to consider the fact that
at the 1999 sentencing for possession of cocaine, Marsh did not object to the
classification in the 1999 PSI and to consider Marsh's attorney's statements made in the
motion for a departure sentence.

c. Marsh's testimony at the 2014 sentencing.

As part of the sentencing in the 2014 case, the district court conducted an
evidentiary hearing to the bench to determine whether Marsh entered a dwelling in 1992
when Marsh committed the burglary. At that bench hearing, the court heard Marsh's
testimonial evidence.

Procedurally, this is problematic. As we noted above, Apprendi is implicated
"when a district court, for purposes of enhancing a defendant's sentence for a current
15

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." Dickey, 301 Kan. at 1036. The district court could not make a factual
finding that went beyond simply identifying the statutory elements that constituted the
prior burglary conviction. See 301 Kan. at 1039. This means, other than the fact of the
prior conviction, the fact must be submitted to a jury and proved beyond a reasonable
doubt. 301 Kan. at 1036.

Nothing in the record presented to us would demonstrate the court had a dialogue
with Marsh about waiving his right to a jury trial. Nor does it demonstrate that either
Marsh or the State requested a jury trial. In addition, it does not appear that the Kansas
Legislature has adopted a jury trial procedure to use in this factual scenario. The
legislature knows how pass legislation providing for the proper procedure when it
recognizes that a right to jury trial is implicated. See K.S.A. 2015 Supp. 21-6620 (jury
trial procedure for the enhancement of a sentence beyond the mandatory minimum upon
conviction of first-degree murder). As a result, it was error for the court to conduct a
testimonial evidentiary hearing.

In addition, in doing this, the district court's actions constituted the making and
adopting of findings of fact that went beyond simply identifying the statutory elements
that constituted the prior burglary conviction.

As part of this conclusion, we note that Marsh's testimony at the 2014 hearing was
contradictory. He said he "never entered the house." However, on cross-examination,
when the State asked whether Marsh admitted that he went in the house in the 1992 PSI
Marsh said, "I admit to goin' inside the home." But then Marsh said, "that ain't what
happened."


16

3. Harmless Error

The State's final argument is that even if there was an Apprendi error, it is
harmless error due to Marsh's multiple admissions. The constitutional harmless error
analysis applies to violations of a right guaranteed by the United States Constitution.
State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011). This standard requires the
prosecution to prove "beyond a reasonable doubt that the error complained of will not or
did not affect the outcome of the trial in light of the entire record, i.e., proves there is no
reasonable possibility that the error affected the verdict." 292 Kan. at 569.

In support, the State cites four items as evidence that the defendant admitted the
fact that the burglary was of a dwelling. The issue is not whether in 2014 the State proved
to a judge beyond a reasonable doubt that Marsh committed burglary of a dwelling in
1992. The issue is whether that finding of fact is one that only a jury in 1992 could and
would need to make.

The district court's actions in conducting the hearing and considering the evidence
were legally impermissible. The district court erred because the evidence was admitted
for the purpose of the making and adopting findings of fact that went beyond simply
identifying the statutory elements that constituted the prior burglary conviction. Thus, the
district court's actions were not harmless error.

In conclusion, the district court erred by classifying Marsh's 1992 burglary as a
person felony in violation of his Sixth Amendment rights as defined by Apprendi,
Descamps, and Dickey. In doing this, the district court's actions constituted making and
adopting findings of fact that went beyond simply identifying the statutory elements that
constituted the prior burglary conviction.

17

While reasonable minds could differ on the question of whether it was our
Supreme Court's intention in Dickey to prohibit the type of judicial factfinding the district
court conducted at Marsh's 2014 sentencing hearing, the language used by the court in
Dickey says what it says. If true, this error was not harmless.

Did the district court properly classify Marsh's 1991 attempted aggravated assault
conviction as a person felony?

Marsh also argues, for the first time, that the district court improperly classified
his 1991 attempted aggravated assault as a person felony. The State did not address this
issue in its brief.

Marsh's failure to raise this argument in district court does not preclude him from
raising the issue in this appeal. See State v. Kelly, 298 Kan. 965, 975-76, 318 P.3d 987
(2014) (A court may review an illegal sentence allegation for the first time on appeal.). A
court may correct an illegal sentence at any time. K.S.A. 22-3504(1).

Whether a prior conviction or adjudication is properly classified as a person or
nonperson offense involves the interpretation of statutes, that is, the revised Kansas
Sentencing Guidelines (KSGA) found at K.S.A. 2015 Supp. 21-6801 et seq.
Interpretation of a statute is a question of law over which appellate courts have unlimited
review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

At the time of Marsh's 1991 attempted aggravated assault conviction, aggravated
assault was defined as: "(a) Unlawfully assaulting or striking at another with a deadly
weapon; or (b) Committing assault by threatening or menacing another while disguised in
any manner designed to conceal identity; or (c) Willfully and intentionally assaulting
another with intent to commit any felony." K.S.A. 21-3410 (Ensley 1988). Assault was
defined as: "an intentional threat or attempt to do bodily harm to another coupled with
18

apparent ability and resulting in immediate apprehension of bodily harm." K.S.A. 21-
3408 (Ensley 1988).

When Marsh was sentenced in 2014 for his current offense, aggravated assault
was defined as an "assault . . . committed: (1) With a deadly weapon; (2) while disguised
in any manner designed to conceal identity; or (3) with intent to commit any felony."
K.S.A. 2014 Supp. 21-5412(b). "Assault" is defined as "knowingly placing another
person in reasonable apprehension of immediate bodily harm." K.S.A. 2014 Supp. 21-
5412(a). Assault is a person misdemeanor. K.S.A. 2014 Supp. 21-5412(e)(1).
Aggravated assault is a person felony. K.S.A. 2014 Supp. 21-5412(e)(2).

Marsh argues that unlike subsections (b) and (c) of the 1991 aggravated assault
statute, subsection (a) of the current statute does not require an offender to commit simple
assault. Marsh argues that an offender could be convicted under subsection (a) of the
current statute by either by assaulting another with a deadly weapon or by striking at
another with a deadly weapon. He further argues under the first means, simple assault
with a deadly weapon, immediate apprehension of bodily harm must exist, but under the
second means, striking at another with a deadly weapon, the victim need not feel any
apprehension of bodily harm at all. Finally, Marsh argues, under the modern statute, an
assault must occur. He concludes that the 1991 assault statute is broader than the current
statute.

Marsh's argument misses the point. Under each subsection of the 1991 aggravated
assault statute, the perpetrator must still have committed an assault, which required the
immediate apprehension of bodily harm. The issue is not whether an assault under the
current statute would qualify as an assault under the 1988 statute. The issue is whether
all of the elements of an assault under the 1988 statute would qualify as an assault under
the 2014 statute.

19

This court recently examined K.S.A. 21-3410(a)(Ensley 1988) in State v.
Greenleaf, No. 111,277, 2015 WL 1782682, at *2 (Kan. App. 2015) (unpublished
opinion), rev. denied 303 Kan. 1080 (2015). There, the court stated that "it is clear that
aggravated assault should be categorized as a person crime because it is a crime in which
a defendant assaults or strikes at another person." The court added:

"In 1969, when the Kansas Criminal Code was adopted, the legislature set out a very
specific statutory outline. See L.1969, [c]h. 180. Crimes listed under Article 34 of the
Code were designated as 'Crimes Against Persons.' K.S.A. 21-3410 (Ensley 1988),
aggravated assault, was listed under Article 34. Accordingly, the legislature's intent was
clear. Aggravated assault was designated as a person crime. That designation has
remained since that time and was simply further codified with the adoption of the KSGA
in 1993. See K.S.A. 21-3410 (aggravated assault is severity level 7 person felony).
Accordingly, in the case of aggravated assault under K.S.A. 21-3410, it is clear that the
legislature has always intended it to be classified as a person crime." 2015 WL 1782682,
at *2.

We agree and adopt this reasoning that a 1991 conviction for aggravated assault
should be classified as a person felony. Any action, whether it is assault or striking at,
taken against another with a deadly weapon is a person crime.

In addition, it is clear that assault as defined in 1991 meets the definitional
requirements to be classified as an assault in 2014. Even if Marsh's arguments were true
that the elements of an aggravated assault in 2014 might be broader than in 1991, an
aggravated assault committed in 1991 would still qualify as an aggravated assault under
K.S.A. 2014 Supp. 21-5412(b) because the elements of assault have not materially
changed. "Striking at another with a deadly weapon" today would be an assault, as
defined today, with a deadly weapon.

20

Finally, in applying this holding to Marsh's 1991 conviction for attempted
aggravated assault, K.S.A. 2014 Supp. 21-6811(g) provides that attempted crimes should
be "treated as a person or nonperson crime in accordance with the designation assigned to
the underlying crime." In 1991, the definition of "attempt" was "any overt act toward the
perpetration of a crime done by a person who intends to commit such crime but fails in
the perpetration thereof or is prevented or intercepted in executing such crime." K.S.A.
21-3301(a) (Ensley 1988). The definition of "attempt" has not changed. See K.S.A. 2014
Supp. 21-5301(a). Therefore, if a 1991 aggravated assault would be properly classified as
a person crime, then a 1991 attempted aggravated assault would also be properly
classified as a person crime.

In conclusion, the district court properly classified Marsh's 1991 attempted
aggravated assault as a person crime. However, we reverse the district court's decision
that Marsh's 1992 burglary conviction should be classified as a person felony. We affirm
the district court's decision that Marsh's 1991 attempted aggravated assault should be
classified as a person felony. We remand for the district court to order the preparation of
an amended PSI and to hold a new sentencing hearing.

Affirmed in part, reversed in part, and remanded with directions.