State v. Martinez

NOT DESIGNATED FOR PUBLICATION

Nos. 116,175
116,176
116,177

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RUDY LEE MARTINEZ,
Appellant.

MEMORANDUM OPINION

Appeal from McPherson District Court; JOE DICKINSON, judge. Opinion filed September 8, 2017.
Affirmed in part, sentence vacated, and case remanded with directions.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Jamie L. Karasek, deputy county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., LEBEN, J., and BURGESS, S.J.

LEBEN, J.: In early 2016, Rudy Lee Martinez pled no contest to criminal charges in
three cases, and he now appeals the 56-month sentence that the district court imposed. He
claims that the criminal-history score upon which his presumptive sentence was based
was incorrect.

First, he claims that his 2008 Florida burglary conviction was wrongly classified
as a person crime. But we can't tell from the documents in our record which subpart of
the Florida burglary statute applied to that conviction, leaving us unable to do the
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statutory comparison necessary to classify it as a person or nonperson offense. Since
Martinez didn't raise this issue until his appeal, the State didn't have a chance to present
information to the district court that might support the person-offense classification. So
we will remand the case for the district court to look at documents related to the 2008
conviction to determine which subpart of Florida's burglary statute Martinez was
convicted under and then classify it based on the comparable Kansas offense.

Second, Martinez claims that his 1996 juvenile adjudication for aggravated assault
shouldn't be counted in his criminal history at all. He argues that a statutory amendment
about how long old juvenile adjudications should be considered—an amendment that
took effect after he committed his crimes—applies retroactively and requires the deletion
of this adjudication from his criminal history. But the legislature did not clearly intend for
the amendment to apply retroactively, so the juvenile adjudication was correctly
accounted for.

As we will explain later in the decision, the possible misclassification of Martinez'
2008 Florida burglary conviction has a potential effect in only one of the three
consolidated cases before us on appeal. We therefore vacate the sentence in that single
case and remand that case for further consideration of the proper classification of the
2008 Florida burglary conviction. In all other respects, we affirm the district court's
judgments in each case.

FACTUAL AND PROCEDURAL BACKGROUND

This case consolidates appeals in three criminal cases against Martinez. He pled
no contest in each of them, and in exchange the State dismissed other charges and cases
against him. In case No. 15 CR 195, Martinez pled to burglary of a dwelling; in case No.
15 CR 197, felony theft; and in case No. 16 CR 29, attempted felony theft.

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In April 2016, the district court sentenced Martinez in all three cases. The parties
agreed that Martinez' criminal-history score in each case was A (the most serious
criminal-history score on a scale of I to A) because he had at least three prior person
felonies. See K.S.A. 2016 Supp. 21-6809. Specifically, in case No. 15 CR 195, he had
three prior person felonies. In both case No. 15 CR 197 and case No. 16 CR 29, he had
four prior person felonies, because the burglary conviction in 15 CR 195 counted for
sentencing purposes in those cases. Two of the prior person-felony convictions are
relevant to the issues Martinez raises on appeal—a 2008 Florida burglary conviction and
a 1996 Kansas juvenile adjudication for aggravated assault.

The district court sentenced Martinez in each case based on the severity level of
his crimes and his criminal-history score. Kansas courts determine the sentences for most
crimes using a grid created by the intersection of these two factors; each grid box
includes a sentencing range of months from which the district court can choose. See, e.g.,
K.S.A. 2016 Supp. 21-6804. In each of Martinez' cases, the district court imposed the low
number from the relevant grid box: 30 months in prison in case No. 15 CR 195; 15
months in case No. 15 CR 197; and 11 months in case No. 16 CR 29. The court ordered
that the three sentences would run consecutively, or one after the other, for a total prison
sentence of 56 months.

Martinez has appealed his sentences to this court.

ANALYSIS

I. Martinez' Notices of Appeal Were Timely, So We Have Jurisdiction.

Before we get to the merits of Martinez' appeal, we must first deal with a novel
jurisdictional argument made by the State. It argues that Martinez filed his notices of
appeal too late when he relied on the McPherson District Court's celebration of a unique
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county holiday. Martinez contends that the district court's closure for this McPherson
County holiday—All Schools Day—automatically extended his filing deadline, just like
state-recognized holidays. We have unlimited review of jurisdictional issues. Fuller v.
State, 303 Kan. 478, 492, 363 P.3d 373 (2015).

K.S.A. 2016 Supp. 22-3608(c) provides a 14-day deadline for criminal defendants
to file the notice of appeal after an adverse decision. Filing a timely notice of appeal is a
jurisdictional requirement: if the defendant doesn't appeal within the statutory 14 days,
we must dismiss the appeal. State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014).

Specific rules govern how to count these 14 days. For those, we turn to the Kansas
Rules of Civil Procedure, which apply in criminal appeals when the Code of Criminal
Procedure doesn't address the question. See K.S.A. 22-3606. The day-counting begins on
the day after the triggering event, and we then count every day, including weekends and
legal holidays. K.S.A. 2016 Supp. 60-206(a)(1)(A), (B). But when the last day of the time
to appeal falls on a weekend or a legal holiday, the time period extends until the end of
the next day that isn't a weekend or a legal holiday. K.S.A. 2016 Supp. 60-206(a)(1)(C).
And "legal holiday" has a specific statutory meaning: it is "any day declared a holiday by
the president of the United States, the congress of the United States or the legislature of
this state, or any day observed as a holiday by order of the Kansas supreme court."
(Emphasis added.) K.S.A. 2016 Supp. 60-206(a)(6).

In this case, the district court sentenced Martinez on Friday, April 29, 2016.
Martinez' lawyer filed the notices of appeal 17 days later, on Monday, May 16.
Obviously, this was outside the 14-day time period. See K.S.A. 2016 Supp. 22-3608(c).
But the final day of the 14-day time period—Friday, May 13—was All Schools Day, a
McPherson County holiday that has been observed there on the second Friday in May
since 1914. (The holiday is apparently unique to McPherson County, and celebrates the
5

graduation of students from eighth grade, high school, and college. See
www.allschoolsday.com.)

So our jurisdiction depends on whether All Schools Day is a "legal holiday" for
the purpose of extending the time period to file the notice of appeal. If so, Martinez'
appeal was timely filed on the Monday following All Schools Day. If not, we have no
jurisdiction over his appeal.

The parties agree that All Schools Day isn't a holiday declared by the federal
government or the Kansas Legislature. But Martinez contends it was a "day observed as a
holiday by order of the Kansas supreme court." See K.S.A. 2016 Supp. 60-206(a)(6).

The Kansas Supreme Court issued an administrative order listing the 2016
holidays, including days such as New Year's Day, Columbus Day, and Thanksgiving
Day. Unsurprisingly, All Schools Day wasn't on this statewide list. But the order said that
district courts could substitute their local holidays for those listed in the order:

"At the discretion of the chief judge and approval of the judicial administrator, a
district court may remain open on any of the above designated holidays when the local
county courthouse is open for business and observe as a substitute holiday a county
designated holiday not otherwise observed by the Judicial Branch." Kansas Supreme
Court Administrative Order No. 281 (issued May 26, 2015).

McPherson County did exactly what the order authorized. There's no suggestion in
the record on appeal that the county lacked the required permissions. McPherson
County—and the McPherson County District Court—observed All Schools Day instead
of Columbus Day, closing the courthouse on All Schools Day (and presumably remaining
open on Columbus Day).

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The State argues that the holidays listed expressly in the administrative order—
New Year's Day, Columbus Day, etc.—are the only holidays "observed as a holiday by
order of the Kansas supreme court." By this reasoning, since All Schools Day isn't listed
in the order, it's not a legal holiday that extends the time to appeal. See K.S.A. 2016
Supp. 60-260(a)(6). But the State's argument ignores the other language in the order that
expressly provides for substitute local holidays: a county may "observe as a substitute
holiday a county designated holiday not otherwise observed by the Judicial Branch."
Administrative Order No. 281. The order provides for substitute county holidays, so the
McPherson County holiday of All Schools Day is a "legal holiday" that is "observed as a
holiday by order of the Kansas supreme court." K.S.A. 2016 Supp. 60-206(a)(6).

To hold otherwise would be unreasonable, especially considering that the result of
the State's argument could be the dismissal of Martinez' appeal. (We say "could be"
because the parties have several alternative arguments that we need not address since All
Schools Day qualifies as a legal holiday.) McPherson County adopted a resolution setting
the schedule of holidays for the local judicial district and then consistent with that
resolution, the district court closed the local courthouse on All Schools Day. And the
Kansas Supreme Court's Administrative Order No. 281 expressly authorized this.

It would not be fair to allow a county to substitute a local holiday in this way and
to hold at the same time that such a substitute holiday isn't a "legal holiday" that extends
the time to file an appeal by a few days. When the county courthouse closes for a holiday,
the public has good reason to believe that any rules applicable to court filings on legal
holidays are in effect.

In sum, All Schools Day was a substitute county holiday authorized by order of
the Kansas Supreme Court, so it was a "legal holiday" that extended the 14-day time
period for Martinez' notices of appeal to Monday, May 16, 2016. The notices were timely
filed on that date, and we have jurisdiction.
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II. We Cannot Determine Whether the District Court Correctly Classified Martinez' 2008
Florida Burglary Conviction as a Person Crime, So We Remand this Issue to the
District Court.

Martinez argues that his 2008 Florida burglary conviction should not count as a
person offense in his criminal history. We have unlimited review, with no required
deference to the district court's conclusion, over the classification of a prior conviction.
State v. Dickey, 301 Kan. 1018, Syl. ¶ 5, 350 P.3d 1054 (2015) (Dickey I).

As an initial matter, the State claims that Martinez cannot challenge the
classification of his prior convictions because he invited the error when he failed to object
to the classification of his prior convictions and agreed with the district court, on several
occasions, that his criminal-history score was correct. The State acknowledges that the
Kansas Supreme Court rejected this argument in State v. Dickey, 301 Kan. 1018, 1032-
34, 350 P.3d 1054 (2015) (Dickey I). Relying on K.S.A. 22-3504, which states that an
illegal sentence can be corrected at any time, the Dickey I court held that a defendant who
stipulates or fails to object to the classification of a prior conviction in his or her criminal-
history score can still challenge that classification for the first time on appeal. 301 Kan at
1032

The State nonetheless argues that Dickey I was wrongly decided. Even if that were
so, we are not the court the State should look to for relief; we must abide by the decisions
of the Kansas Supreme Court unless it indicates that it is departing from its previous
holdings. State v. Vrabel, 301 Kan. 797, 809-10, 347 P.3d 201 (2015). And rather than
departing from this holding, the court reaffirmed it in a later case involving the same
defendant, State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016) (Dickey II), and has
refused to apply the invited-error doctrine in other cases involving claims of illegal
sentences and misclassification of prior convictions. See, e.g., State v. Rodgriguez, 305
8

Kan. 1139, 1148-49, 390 P.3d 903 (2017); State v. Hankins, 304 Kan. 226, 232, 372 P.3d
1124 (2016).

The State also claims that this case is factually distinguishable from Dickey I
because Martinez agreed to his criminal-history score six separate times, not just once.
This distinction makes no difference here. A defendant can stipulate to the factual
existence of a prior conviction but cannot stipulate to the legal classification of that prior
conviction. Dickey II, 305 Kan. at 220; Dickey I, 301 Kan. at 1032. We can correct an
illegal sentence at any time, and "where there has been a misclassification of a prior
conviction, the resulting sentence is illegal." Dickey II, 305 Kan. at 220; see K.S.A. 22-
3504. We move on, then, to the classification of Martinez' 2008 Florida burglary
conviction and why it matters.

Under the Kansas Sentencing Guidelines Act, a district court determines the range
of a defendant's prison sentence using a statutory chart that combines the severity of the
defendant's crime with the defendant's criminal-history score. See, e.g., K.S.A. 2016
Supp. 21-6804. Criminal-history scores range from I, the least serious, to A, the most
serious, and a more serious criminal-history score will result in a longer prison sentence.
Because Martinez had three or more prior person felonies—one of which was his 2008
Florida burglary conviction—his criminal-history score was A. See K.S.A. 2016 Supp.
21-6809. But if the district court wrongly classified that prior conviction as a person
felony, then Martinez should have had one less person felony in his criminal history,
which could reduce his criminal-history score and therefore his sentence. See K.S.A.
2016 Supp. 21-6809 (two prior person felonies leads to a criminal-history score of B). So
did the district court err in classifying the Florida burglary conviction as a person crime?

When classifying out-of-state prior convictions, we start with K.S.A. 2016 Supp.
21-6811(e). See State v. O'Connor, 299 Kan. 819, 821, 326 P.3d 1064 (2014); State v.
Fahnert, 54 Kan. App. 2d 45, 47, 396 P.3d 723 (2017); State v. Buell, 52 Kan. App. 2d
9

818, 823, 377 P.3d 1174, rev. granted 305 Kan. 1253 (2016). But see Buell, 52 Kan. App.
2d at 824 (listing Kansas Court of Appeals cases that did not use subsection [e] to classify
out-of-state burglary convictions). Two classifications must occur: (1) Is the prior
conviction a felony or a misdemeanor?, and (2) Is it a person or nonperson crime? K.S.A.
2016 Supp. 21-6811(e)(2), (3).

In this case, the first question is straightforward—because burglary is a felony in
Florida, it is a felony for Kansas criminal-history purposes. See K.S.A. 2016 Supp. 21-
6811(e)(2)(A) ("If a crime is a felony in another state, it will be counted as a felony in
Kansas."); Fla. Stat. § 810.02(3) (defining Florida second-degree burglary as a felony).
The second question is more difficult and is the crux of this case. See State v. Moore, 52
Kan. App. 2d 799, 804, 377 P.3d 1162, rev. granted 305 Kan. 1256 (2016).

We determine whether an out-of-state prior conviction is a person or a nonperson
offense by comparing the prior-conviction statute to the "comparable offense" in effect in
Kansas on the date the current crime was committed. K.S.A. 2016 Supp. 21-6811(e)(3).
Kansas courts have said that "comparable offense" means what it says: "'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 I, 301 Kan. at 1032). In other words, a comparable
crime "must be 'similar in nature and cover 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]); see State v. Buoy, No. 113,796, 2016 WL
1546422, at *4 (Kan. App.) (unpublished opinion), rev. denied 305 Kan. 1253 (2016).
When comparing out-of-state statutes to Kansas statutes, the focus is the statutory
elements: "[T]here is no review of the evidence surrounding the out-of-state conviction."
Williams, 299 Kan. at 875.

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For prior burglary convictions in particular, the key element in the
person/nonperson classification is whether the prior-conviction statute includes a
"dwelling" element. See K.S.A. 2016 Supp. 21-6811(d); State v. Cordell, 302 Kan. 531,
534, 354 P.3d 1202 (2015); Moore, 52 Kan. App. 2d at 805. This distinction comes from
the justification behind the person/nonperson classification and the definition of
"dwelling"—crimes that cause physical or emotional harm to another person are
generally person crimes and are weighted more heavily, State v. Keel, 302 Kan. 560, 574-
75, 357 P.3d 251 (2015), and whether a place is a "dwelling" turns on whether it is used
or intended to be used as a place for people to live. K.S.A. 2016 Supp. 21-5111(k). So
because a burglary of a dwelling has a greater potential to result in harm to another
person, it's a person crime that weighs more heavily in the calculation of a defendant's
criminal-history score.

To classify Martinez' 2008 Florida burglary conviction, we begin by comparing
the Kansas and Florida burglary statutes, paying particular attention to the "dwelling"
element, since that's what elevates nonperson burglary to person burglary. See Moore, 52
Kan. App. 2d at 814. Kansas defines burglary as a person crime only if the defendant
unlawfully entered or remained within a dwelling with the intent to commit a felony,
theft, or sexually motivated crime in that dwelling. See K.S.A. 2016 Supp. 21-
5807(c)(1)(A)(i), (B)(i).

At first glance, at least part of the Florida burglary statute looks similar to this kind
of Kansas burglary. See O'Connor, 299 Kan. at 823 (stating that the comparable Kansas
offense for a Florida burglary would be Kansas burglary); Buell, 52 Kan. App. 2d at 826
(same). Florida defines second-degree burglary as unlawfully entering or remaining in a
dwelling with the intent to commit an offense therein. Fla. Stat. § 810.02(3)(b); see also
Fla. Stat. § 810.02(1)(b) (providing the general burglary definition).

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But on further review, the Florida statute actually lists several different types of
second-degree burglary; not all involve a dwelling. See Fla. Stat. § 810.02(3)(a)-(f). And
of critical significance to this appeal, we cannot determine of which of these types of
second-degree burglary Martinez was convicted.

Martinez says in his brief on appeal (without explanation) that it appears that he
was convicted under subpart (b). And both parties proceed as if that is the only relevant
subpart. Indeed, it is the subpart that fits nicely into the sentencing issues that Kansas
appellate courts have been grappling with since the Kansas Supreme Court issued its
opinion in Dickey I, which dealt with the constitutional implications of the
person/nonperson classification of a prior Kansas burglary conviction. But a review of
the constitutional principles at play in Dickey I makes clear that we cannot actually
decide this case on the record before us.

In Apprendi v. New Jersey, the United States Supreme Court held that because of
the Sixth Amendment right to a jury trial, "[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. 466, 490, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000). Under this rule, a court still can use prior convictions
to calculate a defendant's criminal-history score, and that score may increase a
defendant's sentence. But the court can't increase a defendant's sentence based on
anything except those prior convictions. For example, the Kansas Supreme Court applied
Apprendi to hold that judicially determined upward-departure sentences—increasing the
maximum sentence that a defendant could receive based on aggravating facts found by
the judge—were unconstitutional. State v. Gould, 271 Kan. 394, Syl. ¶¶ 2-6, 23 P.3d 801
(2001).

In short, Apprendi forbids a judge from making the factual findings that would
increase a defendant's sentence; a jury must determine such facts. So Apprendi issues can
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arise when a sentencing judge looks beyond the mere existence of a prior conviction to
classify that conviction in a way that will increase a defendant's sentence. For example,
when a Kansas district court classifies an out-of-state prior conviction as a person crime,
the defendant will have a more serious criminal-history score and therefore a longer
sentence. So the court's person classification cannot be based on any underlying fact
about the prior conviction—it must be based only on statutory elements.

Those principles determined the result in Dickey I. There, the district court had
classified the defendant's 1992 Kansas juvenile adjudication for burglary as a person
felony. As we've mentioned, prior burglary convictions are classified as person or
nonperson offenses based on whether the prior conviction involved burglary of a
dwelling (because that location has more potential for harm to a person). K.S.A. 2016
Supp. 21-6811(d). But the 1992 Kansas burglary statute didn't include a dwelling
element. Dickey I, 301 Kan. at 1039. So the sentencing court would have had to look at
the facts underlying the 1992 conviction, determine that it involved a dwelling, and then
use that fact to classify the conviction as a person felony and increase the defendant's
sentence. This is exactly the type of "judicial factfinding that goes beyond merely finding
the existence of a prior conviction or the statutory elements constituting that prior
conviction" that Apprendi prohibits. So the Dickey I court concluded that "classifying
Dickey's prior burglary adjudication as a person felony violate[d] his constitutional
rights." 301 Kan. at 1021.

The Dickey I court borrowed some analysis and methodology from the United
States Supreme Court case Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276,
2282, 186 L. Ed. 2d 438 (2013). Descamps considered how a federal court should
classify prior convictions when increasing a defendant's sentence under a provision of the
federal Armed Career Criminal Act. That Act prescribes a sentence increase for any felon
who possesses a firearm and has three prior convictions for a "violent felony" or a
"serious drug offense." 18 U.S.C. §§ 922(g), 924(e) (2012). To classify a prior conviction
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as a "violent felony" or a "serious drug offense" without doing unconstitutional fact-
finding, federal sentencing courts use what the Court has called the categorical and
modified-categorical approaches: Both are ways to compare the elements of the prior-
conviction statute with elements of generic offenses ("violent felony" and "serious drug
offense") without looking into the facts underlying the prior conviction. Descamps, 133
S. Ct. at 2281.

The Kansas Supreme Court described these two approaches in Dickey I, noting
that they provided a constitutionally valid way to classify a prior burglary conviction as a
person or nonperson crime—a classification that involves comparing the prior-conviction
statute to the Kansas statute in effect at the time the current crime was committed. 301
Kan. at 1038-39; see Keel, 302 Kan. 560, Syl. ¶ 8. Under the categorical approach, the
court simply compares the elements of the two statutes—it's a pure statutory comparison.
The court uses the modified-categorical approach when the prior-conviction statute is
divisible—in other words, when the statute provides different ways of committing the
crime. Under the modified-categorical approach, the court can look at a limited set of
documents (like charging documents, jury instructions, and verdict forms) to determine
which of the alternatives the defendant was actually convicted of. The modified-
categorical approach lets the court look at a few underlying facts from the prior
conviction, but only to determine which part of the prior-conviction statute it should
compare to the other offense. Dickey I, 301 Kan. at 1037; see Descamps, 133 S. Ct. at
2281.

Consideration of the categorical and modified-categorical approaches highlights
the problem in this case. As we've stated, Kansas classifies prior out-of-state convictions
as person or nonperson crimes by comparing the out-of-state statute to the comparable
Kansas statute in effect at the time of the defendant's current crime. K.S.A. 2016 Supp.
21-6811(e). To make this comparison, we need to know which Florida statute Martinez
was convicted under. See, e.g., Buell, 52 Kan. App. 2d at 826 (stating that defendant was
14

convicted under subpart [b] of an earlier version of the Florida statute and then moving
on to the statutory comparison).

Here's what we know about Martinez' Florida burglary conviction from the
presentence-investigation reports: (1) the conviction arose under a statute numbered
"810023"; (2) the person who prepared the presentence investigation report titled the
conviction "Burglary of a Dwelling"; and (3) the conviction date was January 10, 2008.
The numbers "810023" reasonably correspond to Florida's second-degree burglary
statute, found at Fla. Stat. § 810.02(3). But when Martinez committed his crime,
sometime in 2007 (we don't know when), that statute (amended effective July 1, 2007)
had either four or five subparts, each one describing a different type of burglary based on
location and whether another person was present:

"(a) Dwelling, and there is another person in the dwelling at the time the offender
enters or remains;
"(b) Dwelling, and there is not another person in the dwelling at the time the
offender enters or remains;
"(c) Structure, and there is another person in the structure at the time the offender
enters or remains;
"(d) Conveyance, and there is another person in the conveyance at the time the
offender enters or remains;
"(e) Authorized emergency vehicle." Fla. Stat. § 810.02(3) (as of July 1, 2007;
subsection [e] added as of that date).

None of the presentence investigation reports list which of these subparts applied
to Martinez. The title of the conviction as "Burglary of a Dwelling" doesn't provide
enough additional guidance because both subparts (a) and (b) involve a "dwelling"
element. Fla. Stat. § 810.02(3)(a), (b) (2007). (For comparison, the next line down on
each of Martinez' presentence investigation reports lists another Florida burglary
conviction, "Burglary of a Structure," saying it arose under "810024A." This corresponds
15

precisely with Florida's third-degree burglary provision for burglary of a structure
without another person present, at Fla. Stat. § 810.02[4][a] [2007].) And finally, we don't
even know if subpart (e) was an option. The legislature added subpart (e) effective July 1,
2007; because we don't know when in 2007 Martinez committed this burglary, we don't
know whether this subpart could apply to this conviction. 2007 Fla. Laws, ch. 2007-115,
§ 1.

Which subpart applied to Martinez is important because the different subparts are
comparable to different Kansas crimes that have different person/nonperson
classifications. Under subparts (a), (c), and (d), Martinez' conviction would be a person
crime because those subparts all involve the presence of another person, and the
comparable Kansas crime would be aggravated burglary, which is always a person crime,
regardless of where it occurred. See K.S.A. 2016 Supp. 21-5807(b), (c)(2). On the other
hand, if subpart (e) was in effect when Martinez committed his crime and was the subpart
he was convicted under, it would compare to regular Kansas burglary and would result in
a nonperson classification under the rule announced in Dickey I because it doesn't include
a dwelling element. Subpart (b) also compares to regular Kansas burglary, but it could be
a person crime because it involves burglary of a dwelling—and the dwelling element is
what distinguishes person burglary from nonperson burglary in Kansas. And this is where
the parties focus their briefs, arguing about whether Florida's definition of dwelling is
comparable to Kansas' definition of dwelling.

Kansas defines "dwelling" 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." (Emphasis added.) K.S.A. 2016 Supp. 21-5111(k). The italicized language is
the key part of this definition because it focuses on the possibility that another person
could be present in the location of the burglary (thereby increasing the possibility that a
person could be harmed, which is why burglary of a dwelling is a person crime). See
State v. Sodders, No. 115,366, 2017 WL 462046, at *4 (Kan. App. 2017) (unpublished
16

opinion), petition for rev. filed March 3, 2017. Florida defines "dwelling" similarly, as a
"building or conveyance of any kind, including any attached porch, whether such
building or conveyance is temporary or permanent, mobile or immobile, which has a roof
over it and is designed to be occupied by people lodging therein at night, together with
the curtilage thereof." (Emphasis added.) Fla. Stat. § 810.011(2). As in the Kansas
definition, the focus of this definition is the possibility that another person will be present
at the location of the burglary.

Martinez argues that the Florida definition of "dwelling" is broader than and not
comparable to the Kansas definition of "dwelling" because it includes the "curtilage" of
the dwelling. Generally speaking, "curtilage" means the land around a residence. See
State v. Fisher, 283 Kan. 272, 282, 154 P.3d 455 (2007); Black's Law Dictionary 466
(10th ed. 2014). But the inclusion of the curtilage of a dwelling doesn't change the
essential similarity between the two definitions: both focus on enclosed spaces designed
for people to live or stay overnight in. This difference between these definitions is much
smaller, for example, than the difference between Missouri's "habitable structure" and
Kansas' "dwelling," which Kansas appellate courts have held to be not comparable
because "habitable structure" includes a broad range of structures that aren't dwellings
meant for human habitation or overnight shelter, including businesses and churches. See
Fahnert, 54 Kan App. 2d at 56-57. But see Sodders, 2017 WL 462046, at *5 (reaching
the opposite result).

An aspect of Florida law supports this analysis. As the State points out, Florida
courts have interpreted the "curtilage" language in the definition of "dwelling" in a very
limited way. First, curtilage only includes land around a building if that land is enclosed
in some way (for example, by a fence). Dubose v. State, 210 So. 3d 641, 653-54 (Fla.
2017) (citing State v. Hamilton, 660 So. 2d 1038, 1044 [Fla. 1995].). Second, Florida
courts have avoided conflating burglary with simple trespassing on someone's property.
For example, one Florida appellate court determined that a defendant who had stolen
17

property that had been leaning up against a house but had not entered the house was
guilty only of trespassing, not of burglary. J.L. v. State, 57 So. 3d 924 (Fla. Dist. Ct. App.
2011). Another held that an unattached garage located at the south end of the victim's
property was not a part of the residence's curtilage. Martinez v. State, 700 So. 2d 142-43
(Fla. Dist. Ct. App. 1997). So Florida has limited the part of its "dwelling" definition that
is broader than Kansas' definition; the two definitions need not be identical to be
comparable.

Boiling this all down, though, we can't determine whether the Florida and Kansas
"dwelling" definitions are comparable—we cannot do the necessary statutory
comparison without knowing which subpart of the Florida statute formed the basis of
Martinez' conviction. For example, let's first take the person who completed Martinez'
presentence investigation reports at his or her word and assume that the burglary involved
a dwelling, based on the description of the conviction as "Burglary of a Dwelling." This
burglary conviction could be a person crime for two different reasons. If based on subpart
(b), then it's a person crime only if the dwelling elements are comparable. But if based on
subpart (a), which includes the presence of a person, then the comparable Kansas crime is
aggravated burglary, which is always a person crime (with no dwelling analysis
required).

Since the person who completed Martinez' presentence investigation report did not
actually list the subpart of the Florida statute that applied to Martinez, we hesitate to rest
entirely on his or her conclusion that the burglary involved a dwelling. By contrast, the
presentence investigator did include reference to a statutory subpart for the next
conviction listed in the report, another Florida burglary conviction (under a different
statute). Why wasn't a subpart included for the Florida burglary conviction Martinez
challenges in this appeal? We simply don't know.

18

In this situation, the proper course is to remand the case to the district court for it
to use the modified-categorical approach outlined in Dickey I to determine which subpart
of the divisible Florida statute, Fla. Stat. § 810.02(3), applied to Martinez. See Mathis v.
United States, 579 U.S. ___, 136 S. Ct. 2243, 2249, 195 L. Ed. 2d 604 (2016) (noting that
a divisible statute is one that lists elements in the alternative and defines multiple crimes);
State v. Smith, No. 113,297, 2016 WL 1391767, at *9 (Kan. App.) (unpublished opinion)
(remanding for district court to use modified-categorical approach to determine which
part of divisible Texas burglary statute had applied to prior conviction), rev. denied 305
Kan. 1257 (2016). We emphasize that the goal of the modified-categorical approach to
classifying prior convictions—looking at charging documents, plea agreements, jury
instructions, verdict forms, transcripts from plea colloquies, and findings of fact and
conclusions of law from a bench trial—is to determine which statutory provision
Martinez was convicted under, not to determine the actual facts underlying Martinez'
conviction.

If Martinez' conviction was based on subparts (a), (c), or (d), the classification is
straightforward—all involve the presence of another person, so all would be comparable
to Kansas aggravated burglary and would result in a person classification without any
chance of unconstitutional fact-finding. See K.S.A. 2016 Supp. 21-5807(b), (c)(2); State
v. Collier, 306 Kan. 521, 527, 394 P.3d 1164 (2017) (concluding that Dickey I doesn't
apply to prior convictions that are comparable to aggravated burglary).

If his conviction was based on subpart (b), then the district court must determine
whether the Florida dwelling element is comparable to ours. See State v. Lewis, No.
113,438, 2016 WL 1546133, at *5 (Kan. App. 2016) (unpublished opinion) (agreeing that
Texas "habitation" fit within Kansas "dwelling" but remanding for district court to look at
documents from Texas conviction to determine whether the presentence investigation
report correctly described the Texas conviction as "burglary of a habitation"), rev. denied
305 Kan. 1256 (2017); State v. Barnes, No. 114,540, 2016 WL 7178303, at *3 (Kan.
19

App. 2016) (unpublished opinion) (remanding for district court to make appropriate
findings utilizing Dickey I to make sure prior Texas conviction was correctly scored on
the presentence investigation report).

Finally, if his crime was committed after July 1, 2007, and was based on subpart
(e), then it must be classified as nonperson, since subpart (e) doesn't include a dwelling
element. See Dickey I, 301 Kan. at 1039.

We note—and defense counsel agreed at oral argument—that this error has a
potential impact only on Martinez' sentence in case No. 15 CR 195, the first of the three
cases in which he was sentenced. That's because Martinez' conviction in case No. 15 CR
195 was itself for a person-felony offense, burglary, and that conviction counts for his
criminal-history score in the other two cases. See K.S.A. 2016 Supp. 21-6810(a); State v.
Jefferson, No. 116,268, 2017 WL 3113038, at *1 (Kan. App. 2017) (unpublished
opinion). Thus, assuming that this is the only error we find in this appeal (a conclusion
we will confirm in the next section), further action by the district court is needed only in
case No. 15 CR 195.

Because we cannot tell whether the district court correctly classified the 2008
Florida burglary conviction as a person crime, we vacate the defendant's sentence in case
No. 15 CR 195 and remand that case for resentencing, at which the district court shall use
the modified-categorical approach to determine which subpart of the Florida burglary
statute Martinez was convicted under.

III. The 2016 Amendments to K.S.A. 21-6810(d) Do Not Apply Retroactively, So the
District Court Correctly Counted Martinez' 1996 Juvenile Adjudication as a Person
Felony.

Martinez next argues that his 1996 juvenile adjudication for aggravated assault
should not be included in his criminal history. He claims that a July 1, 2016 statutory
20

amendment changed the rules about how to classify prior juvenile adjudications and that
the amendment applies retroactively to his cases. The interpretation of a statute is a
question of law over which we have unlimited review. State v. Collins, 303 Kan. 472,
473-74, 362 P.3d 1098 (2015).

To put his argument in context, let's first review the statutory provisions that
govern how to classify juvenile adjudications—subsections (d)(3) and (d)(4) of K.S.A.
21-6810—including how those provisions have been amended in recent years. The
specific classification issue in this case is about the "decay" of juvenile adjudications. A
juvenile adjudication that "decays" does not count as a prior conviction in a defendant's
criminal history. K.S.A. 2016 Supp. 21-6803(e); K.S.A. 2016 Supp. 21-6810(d)(4); State
v. Smith, 49 Kan. App. 2d 88, 90, 304 P.3d 359 (2013). Subsection (d)(3) explains which
types of prior convictions will not decay, while subsection (d)(4) explains which ones will
decay. See K.S.A. 2016 Supp. 21-6810(d)(3), (4).

Martinez committed the crimes in his cases on appeal in May 2015, August 2015,
and January 2016. As of 2015, K.S.A. 2015 Supp. 21-6810(d)(3)(B) provided that any
prior juvenile adjudication for a crime that would have been a person felony if committed
by an adult would not decay.

With an effective date of July 1, 2016, the legislature amended these subsections
so that some less serious juvenile adjudications that would have been person felonies if
committed by adults will decay. L. 2016, ch. 97, § 1. Kansas criminal statutes assign
severity levels to felonies; the most serious is 1, and the least serious is 10. See, e.g.,
K.S.A. 2016 Supp. 5807(c) (listing severity levels for different types of burglary). Under
the 2016 amendments, prior juvenile adjudications for more serious felonies—those that
would have been nondrug person felonies with a severity level of 1 through 4—still do
not decay, just like under the 2015 version. K.S.A. 2016 Supp. 21-6810(d)(3)(B). But if
the prior juvenile adjudication was for a less serious felony—one that would have been a
21

nondrug crime with a severity level of 5 through 10—it will decay. K.S.A. 2016 Supp.
21-6810(d)(4)(B).

The prior juvenile adjudication at issue here was for a 1996 aggravated assault. If
committed by an adult, aggravated assault is a severity-level-7 person felony. See K.S.A.
2016 Supp. 21-5412(e). (It was also a severity-level-7 felony in 1994, when Martinez was
charged with it. See K.S.A. 1994 Supp. 21-3410.) The parties agree that if the 2015
statute applies, the adjudication does not decay, because it's a prior juvenile adjudication
for a crime that would have been a person felony if committed by an adult. They also
agree that if the 2016 version applies, then the adjudication does decay, because it's a less
serious, severity-level-7 person felony. So which version applies?

Usually, the statute in effect at the time of a person's crime controls. State v.
Bailey, 306 Kan. 393, 396, 394 P.3d 831 (2017). Martinez committed all of the crimes at
issue in these appeals in 2015 or January 2016, all before the effective date of the 2016
statutory amendments. So the 2015 version of the statute, which became effective April
2, 2015, applied to all three of his cases. See L. 2015, Ch. 5, § 5. But Martinez argues that
even though the 2016 amendments didn't become effective until July 1, 2016—after he
committed his crimes, pled no contest, and was sentenced—the legislature intended them
to apply retroactively. See L. 2016, ch. 97, § 6.

Generally, substantive criminal statutes only apply to crimes and circumstances
that arise after they become law, or prospectively. It's possible for substantive statutes to
apply retroactively, to cases and events in the past, but only if the legislature clearly
intended them to (and applying them retroactively causes no constitutional problems).
State v. Bernhardt, 304 Kan. 460, 479, 372 P.3d 1161 (2016).

The statute we're discussing in this case does include retroactivity language: the
legislature added subsection (e) in 2015 as part of House Bill 2053, which primarily
22

amended part of the statute about how to classify certain older, pre-1993 convictions. L.
2015, ch. 5, § 1. The added retroactivity language makes the 2015 amendments
themselves retroactive: "The amendments made to this section by this act are procedural
in nature and shall be construed and applied retroactively." (Emphasis added.) K.S.A.
2015 Supp. 21-6810(e); L. 2015, ch. 5, § 1. The legislature had specific reasons to make
the 2015 amendments retroactive; the amendments were the legislative response to a
specific Kansas Supreme Court decision, State v. Murdock, 299 Kan. 312, 323 P.3d 846
(2014), enacted before Murdock was overruled in State v. Keel, 302 Kan. 560, Syl. ¶ 9,
357 P.3d 251 (2015). See State v. Villa, No. 115,595, 2017 WL 3207087, at *3-4 (Kan.
App., 2017) (unpublished opinion). In 2016, when the legislature made the amendments
about the decay of juvenile adjudications in House Bill 2463, it didn't amend subsection
(e). See K.S.A. 2016 Supp. 21-6810(e); L. 2016, ch. 97, § 1.

Martinez argues that because K.S.A. 2016 Supp. 21-6810 includes retroactivity
language, the 2016 amendments apply retroactively to his cases. But he overlooks the
actual words in the retroactivity provision: the amendments made "by this act" are
retroactive. K.S.A. 2015 Supp. 21-6810(e). The "act" referenced here is House Bill 2053,
which contained the 2015 amendments and was titled, "An act concerning crimes,
punishment and criminal procedure; relating to calculation of criminal history; amending
K.S.A. 2014 Supp. 21-6810 and 21-6811 and repealing the existing sections." L. 2015,
ch. 5. If the legislature had intended for subsection (e) to apply to all future amendments
to the statute, it could have stated that intent; the legislature frequently applies a rule to a
statute "and amendments thereto."

In other words, only the 2015 amendments are retroactive, not every later
amendment to the statute. It's true that the legislature didn't change subsection (e) in 2016
when it made more amendments. But we hesitate to interpret the legislature's lack of
action related to subsection (e) as clear intent to make the 2016 amendments apply
retroactively. See State v. Jordan, 303 Kan. 1017, 1021, 370 P.3d 417 (2016) (noting that
23

legislative inaction is not a strong indicator of legislative intent); Bernhardt, 304 Kan. at
479 (reciting rule that a statute only applies retroactively if the legislature clearly
intended it to). Additionally, the legislature's most recent amendment to subsection (e)
confirms our interpretation of "by this act" to mean that only the 2015 amendments were
meant to be retroactive. Effective July 1, 2017, subsection (e) now reads: "The
amendments made to this section by section 1 of chapter 5 of the 2015 Session Laws of
Kansas are procedural in nature and shall be construed and applied retroactively."
(Emphasis added.) H.B. 2092; L. 2017, ch. 92, § 5. We find no clear indication that the
legislature intended for the 2016 amendments to apply retroactively, so we apply the
presumptive rule that substantive changes apply prospectively only.

Indeed, Martinez concedes that the amendments in this case are substantive—they
aren't procedural amendments that can apply retroactively even without clear legislative
intent. See Bernhardt, 304 Kan. at 479. Substantive laws declare what acts are crimes and
prescribes the punishment for those acts, while procedural laws regulate the steps for
trial, conviction, and sentencing. See State v. Dupree, 304 Kan. 43, 54, 371 P.3d 862
(2016) (finding speedy-trial statute procedural); Easterwood v. State, 273 Kan. 361, 372,
44 P.3d 1209 (2002) (defining procedural and substantive). The amendments here are
substantive because they affect the length of defendants' sentences. State v. Reese, 300
Kan. 650, 653-54, 333 P.3d 149 (2014); State v. Martin, 270 Kan. 603, 608-09, 17 P.3d
344 (2001). Finding for Martinez would definitely affect his substantive rights, as well as
the rights of every defendant serving a sentence based in part on the classification of a
juvenile adjudication like Martinez'—one that would be a low-severity-level person
felony if committed by an adult. See Parker v. State, No. 115,267, 2017 WL 947821, at
*4 (Kan. App. 2017) (unpublished opinion) (noting potential for a flood of illegal-
sentences cases if the 2016 amendments apply retroactively), petition for rev. filed May
4, 2017.

24

The 2016 amendments do not apply retroactively, so Martinez' prior juvenile
adjudication for aggravated assault does not decay and was correctly classified as a
person felony in his criminal history. See Villa, 2017 WL 3207087, at *2-5 (reaching the
same result and reviewing effect of subsection [e]); Parker, 2017 WL 947821, at *4
(reaching the same result, albeit without discussing subsection [e]); accord State v. Riley,
No. 116,046, 2017 WL 1426208, at *1 (Kan. App. 2017) (unpublished opinion)
(following Parker without analysis).

We vacate the defendant's sentence in case No. 15 CR 195 and remand to the
district court for resentencing. In all other respects, we affirm the district court's
judgment.