State v. Rodriguez

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NOT DESIGNATED FOR PUBLICATION

No. 114,264

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANGEL RODRIGUEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Seward District Court; CLINT B. PETERSON, judge. Opinion filed July 22, 2016.
Sentence vacated and case remanded with directions.

Adam D. Stolte and Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Russell W. Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.

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

POWELL, J.: Angel Rodriguez appeals the district court's denial of his pro se
motion to correct an illegal sentence filed nearly 5 years after he was sentenced, arguing
that the district court engaged in improper factfinding to score his Nevada burglary
conviction as a person felony, which violated his rights under the Sixth Amendment to
the United States Constitution as articulated in Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States, 570 U.S. ___,
133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). Because we find that although the Nevada
burglary statute is divisible, none of the elements match the dwelling requirement of
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Kansas' person felony burglary statute, requiring us to vacate Rodriguez' sentence and
remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Rodriguez entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.
Ct. 160, 27 L. Ed. 2d 162 (1970), to one count of sexual exploitation of a child committed
on March 26, 2006. Rodriguez' presentence investigation report (PSI) indicated three
prior person felonies, all out-of-state convictions, including a 1997 Nevada burglary
conviction. At his sentencing on November 9, 2009, Rodriguez objected to his criminal
history score, contending that a New Jersey sexual assault conviction was improperly
scored as a felony. The district court overruled Rodriquez' objection, scored Rodriquez'
criminal history as A, then sentenced Rodriguez to 130 months' imprisonment with 24
months' postrelease supervision. Rodriguez never filed a direct appeal of his conviction
and sentence.

Nearly 5 years later, on October 10, 2014, Rodriguez filed a pro se motion to
correct an illegal sentence, arguing that under State v. Murdock, 299 Kan. 312, 323 P.3d
846 (2014), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied
136 S. Ct. 865 (2016), the classification of his 1997 Nevada burglary as a person felony
was an error, making his sentence illegal. The district court denied Rodriguez' motion,
stating that because Murdock did not apply retroactively, Rodriguez was not entitled to
relief.

Rodriguez timely appeals.

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IS RODRIGUEZ' SENTENCE ILLEGAL?

On appeal, Rodriguez drops his challenge to his sentence based upon Murdock,
299 Kan. 312, presumably because Murdock has been overruled by Keel, 302 Kan. 560.
Instead, Rodriguez contends for the first time on appeal that the district court erred when
it classified his 1997 Nevada burglary conviction as a person offense by implicitly
engaging in impermissible judicial factfinding when it determined that the Nevada
burglary conviction should be treated as the equivalent of burglary of a dwelling, a
person felony under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et
seq., in effect at the time Rodriguez committed his current crime. Rodriguez contends
that such factfinding by the judge rather than a jury increased the penalty for his primary
offense, violating his rights under the Sixth and Fourteenth Amendments to the United
States Constitution as articulated by Apprendi, 530 U.S. 466, and Descamps, 133 S. Ct.
2276. As answering this question concerns the legality of Rodriguez' sentence and
whether a prior conviction should be classified as a person or nonperson offense, it is one
of law over which we have unlimited review. See Keel, 302 Kan. 560, Syl. ¶ 4.

Even though Rodriguez raises this argument for the first time on appeal, K.S.A.
22-3504(1) provides that "[t]he court may correct an illegal sentence at any time." As the
State has not raised any procedural bars or contested the applicability of Apprendi and
Descamps, we will proceed to consider his claim on the merits.

"'[A]n "illegal sentence" under K.S.A. 22-3504 [is]: (1) a sentence imposed by a court
without jurisdiction; (2) a sentence that does not conform to the applicable statutory
provision, either in character or the term of authorized punishment; or (3) a sentence that
is ambiguous with respect to the time and manner in which it is to be served. [Citations
omitted.]'" State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015).

Our analysis begins with the KSGA, which provides that criminal sentences are
essentially based on two controlling factors: the criminal history of the defendant and the
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severity level of the crime committed, with person crimes having a greater impact. See
K.S.A. 21-4704(c); State v. Vandervort, 276 Kan. 164, 178, 72 P.3d 925 (2003),
overruled in part on other grounds by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054
(2015). A defendant's criminal history score is calculated by tabulating the offender's
prior convictions to generate a criminal history score, with A being the highest and I
being the lowest. See K.S.A. 21-4703(d); K.S.A. 21-4704(a); K.S.A. 21-4705(a). Prior
convictions or adjudications are classified as either misdemeanors or felonies, person or
nonperson, with some exceptions. See K.S.A. 21-4710; K.S.A. 21-411. The more
extensive the defendant's criminal history and/or the greater the severity level of the
crime, the lengthier the guideline sentence. See K.S.A. 21-4704(a); K.S.A. 21-4705(a).

In determining a defendant's criminal history, the KSGA requires the scoring of
out-of-state prior convictions:

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

Rodriquez does not challenge, and Nevada law clearly provides, that his 1997
Nevada burglary conviction is a felony. Nev. Rev. Stat. § 205.060(2) (1997). Our next
task, then, is to determine whether his Nevada felony burglary conviction should be
classified as a person or nonperson crime. This is done by referring to the comparable
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Kansas offenses in effect at the time the current crime of conviction was committed.
Keel, 302 Kan. 560, Syl. ¶ 9. It is well established that in evaluating what offenses are
comparable under the KSGA, "[t]he essential question is whether the offenses are similar
in nature and cover similar conduct." State v. Martinez, 50 Kan. App. 2d 1244, 1249, 338
P.3d 1236 (2014). We look for the Kansas offense that is the "closest approximation" or
most "'comparable.'" Vandervort, 276 Kan. at 179. In making this comparison, the
elements of each out-of-state crime do not need to be identical to the elements of a
Kansas crime for them to be comparable. 276 Kan. at 179. Offenses may be comparable
"even when the out-of-state statute encompassed some acts not necessarily encompassed
by the Kansas statute." State v. Riolo, 50 Kan. App. 2d 351, 356-57, 330 P.3d 1120
(2014), rev. denied 302 Kan. ___ (June 30, 2015).

K.S.A. 21-3715, the burglary statute in effect at the time Rodriguez committed his
current crime of sexual exploitation of a child, states:

"Burglary is knowingly and without authority entering into or remaining within
any:
"(a) Building, manufactured home, mobile home, tent or other structure which is
a dwelling, with intent to commit a felony, theft or sexual battery therein;
"(b) building, manufactured home, mobile home, tent or other structure which is
not a dwelling, with intent to commit a felony, theft or sexual battery therein; or
"(c) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance
of persons or property, with intent to commit a felony, theft or sexual battery therein.
"Burglary as described in subsection (a) is a severity level 7, person felony.
Burglary as described in subsection (b) is a severity level 7, nonperson felony. Burglary
as described in subsection (c) is a severity level 9, nonperson felony."

K.S.A. 21-3110(7) defines a 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."
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Rodriguez was convicted of burglary under Nev. Rev. Stat. § 205.060(1) (1997),
which defines burglary:

"A person who, by day or night, enters any house, room, apartment, tenement, shop,
warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle,
vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car, with the
intent to commit grand or petit larceny, assault or battery on any person or any felony, is
guilty of burglary."

When examining both the Kansas and Nevada burglary statutes, we have no
trouble concluding as a matter of law that they are broadly comparable. The rub is
whether the Nevada burglary statute under which Rodriguez was convicted is comparable
to Kansas' person burglary statute. See K.S.A. 21-4711(d) (prior burglary convictions
must be classified as either person or nonperson). "[T]he distinction between person and
nonperson burglaries under K.S.A. [21-4711(d)] hinges on whether the offender
burglarized a dwelling." State v. Cordell, 302 Kan. 531, 534, 354 P.3d 1202 (2015).

Rodriguez specifically argues that under Apprendi and Descamps the district court
erred in classifying his Nevada burglary conviction as a person felony because such
classification required the district court to make the factual finding that the burglary had
been committed in a dwelling without requiring the State to prove such a fact to a jury
beyond a reasonable doubt.

"Under Apprendi, '[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.' 530 U.S. at 490. The policy
rationale behind Apprendi is that a court violates the United States Constitution if it
invades the jury's territory by finding facts at sentencing. See Shepard v. United States,
544 U.S. 13, 25, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (plurality opinion) ('[T]he
Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the
power of the State, and they guarantee a jury's finding of any disputed fact essential to
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increase the ceiling of a potential sentence.'). A narrow exception exists for judicial
factfinding regarding the existence of a prior conviction because of the procedural
safeguards which attach to such a fact. Apprendi, 530 U.S. at 488. As a result, in the
typical case under our sentencing guidelines, tabulating a defendant's prior convictions to
determine the criminal history score, which usually has the effect of increasing a
defendant's sentence, does not violate a defendant's jury trial rights. See State v. Ivory,
273 Kan. 44, 46-48, 41 P.3d 781 (2002)." Dickey, 301 Kan. at 1036.

In Descamps, 133 S. Ct. 2276, the United States Supreme Court held that a
defendant's prior conviction for burglary under California law could not be counted as a
predicate offense for burglary under the federal Armed Career Criminal Act (ACCA),
which increases the sentences of defendants who have three prior convictions for violent
felonies. Unlike the ACCA's "general burglary" definition, the California burglary statute
at issue did not require unlawful entry as do most burglary laws; it provided that a
"person who enters" certain locations "with intent to commit grand or petit larceny or any
felony is guilty of burglary." Cal. Penal Code Ann. § 459 (West 2010). The Descamps
Court stated that the sentencing court would have had to look at Descamps' prior
burglaries in order to determine whether he did break and enter or merely shoplifted in
order to count the prior burglaries for ACCA purposes. The Court held that such an
inquiry raised Sixth Amendment concerns because it required the sentencing court to
invade the jury's factfinding territory. See 133 S. Ct. at 2281-87.

To determine whether a prior conviction qualified as a sentence enhancer under
the ACCA, the Descamps Court held that a sentencing court must use one of two
approaches—the categorical approach or the modified categorical approach. 133 S. Ct. at
2281-84, 2287; see also Dickey, 301 Kan. at 1036-39 (detailed discussion of categorical
versus modified categorical approaches). Under the categorical approach, the sentencing
court is to simply "compare the elements of the statute forming the basis of the
defendant's conviction with the elements of the 'generic' crime." 133 S. Ct. at 2281. If the
elements of the prior conviction are the same as or narrower than the elements of the
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corresponding crime under the ACCA, then the prior conviction may be counted as a
predicate offense for sentence enhancement purposes under the ACCA. 133 S. Ct. at
2281, 2283.

The modified categorical approach applies when the statute defining the elements
of the prior offense in state law is broader than the corresponding generic offense as
defined in the ACCA. Descamps, 133 S. Ct. at 2281, 2283-84. However, this approach
may only be utilized when the prior conviction involves a "divisible statute," meaning a
statute which comprises multiple, alternative versions of the crime, at least one of which
matches the elements of the generic offense. 133 S. Ct. at 2281-82, 2284-85. In such an
instance, the sentencing court is permitted to look beyond the elements in the statutes and
examine limited extra-statutory materials to determine "which of a [prior] statute's
alternative elements formed the basis of the defendant's prior conviction." Descamps, 133
S. Ct. at 2284. Such extra-statutory materials include charging documents, plea
agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well
as findings of fact and conclusions of law from a bench trial. Johnson v. United States,
559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010).

In Dickey, 301 Kan. at 1039, our Supreme Court explicitly adopted the Descamps
categorical/modified categorical approach in "determining whether a prior burglary
conviction should be classified as a person or nonperson felony under the KSGA." The
court ultimately held that although the pre-KSGA Kansas burglary statute under which
Dickey had previously been convicted was divisible, as it had "multiple, alternative
versions of the crime, none included an element requiring that the structure burglarized
be a dwelling." 301 Kan. at 1039. Therefore, it was constitutionally impermissible to
classify Dickey's prior burglary adjudication as a person crime because to do so would
have required judicial factfinding beyond merely identifying the statutory elements. 301
Kan. at 1039-40.
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The elements of the Nevada burglary statute are: (1) a person who, (2) by day or
night, enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn,
stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or
house trailer, airplane, glider, boat or railroad car, (3) with the intent to commit grand or
petit larceny, assault or battery on any person or any felony. Nev. Rev. Stat. § 205.060(1)
(1997). The key element in our inquiry is "any house, room, apartment, tenement, shop,
warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle,
vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car."

Relying on State v. Roose, 41 Kan. App. 2d 435, 203 P.3d 18 (2009), Rodriguez
argues that none of the alternative elements listed in the Nevada burglary statute
necessarily constitute a dwelling, meaning the burglary conviction cannot be counted as a
person felony. The State argues, however, that "every burglary in Nevada is reviewed as
being a burglary of a dwelling." In support of this contention, the State cites the
sentencing provision of Nev. Rev. Stat. § 205.060(2) (1997):

"[A] person convicted of burglary is guilty of a category B felony and shall be punished
by imprisonment in the state prison for a minimum term of not less than 1 year and a
maximum term of not more than 10 years, and may be further punished by a fine of not
more than $10,000. A person who is convicted of burglary and who has previously been
convicted of burglary or another crime involving the forcible entry or invasion of a
dwelling must not be released on probation or granted a suspension of his sentence."

We are unpersuaded by the State's argument because the Nevada statute it relies
upon is simply a sentencing enhancement provision. Whether a conviction under
Nevada's burglary statute mandates a prison term is dependent on whether the defendant
had a prior conviction "involving the forcible entry or invasion of a dwelling." Nev. Rev.
Stat. § 205.060(2) (1997). The provision says nothing about the present conviction.

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Moreover, we agree with Rodriguez and the Roose panel that "simply describing
the structure as a 'house' does not indicate whether the structure is a dwelling." Roose, 41
Kan. App. 2d at 439. A mere listing of elements such as house, room, apartment, or
tenement, standing alone does not necessarily make them dwellings because to determine
whether they constitute dwellings would require factual findings that they were "used or
intended for use as a human habitation, home or residence." K.S.A. 21-3110(7). Our
conclusion is consistent with Dickey, 301 Kan. at 1039, where our Supreme Court held
that the modified categorical approach, which would allow the district court to examine
specified documents to determine whether a prior burglary conviction was committed in a
dwelling, was not applicable to the pre-KSGA version of the Kansas burglary statute.
Even though the statute was divisible as it contained alternative elements such as
"building, manufactured home, mobile home, tent or other structure," none of the
elements required that the structure be a dwelling. Accordingly, we hold that Rodriguez'
1997 Nevada burglary conviction cannot be scored as a person felony and, instead, must
be scored as a nonperson felony.

Finally, Rodriguez argues in the alternative that his Nevada burglary conviction
cannot be classified as a person felony because the intent element in the Nevada statute is
broader than the Kansas burglary statute, requiring the district court to make
impermissible factual findings. While this issue is moot given our holding that his
Nevada burglary conviction cannot be classified as a person felony, we agree with the
reasoning set forth by two other panels of our court which held that intent is irrelevant to
determine whether an out-of-state burglary conviction should be classified as a person or
nonperson crime. See State v. Moore, 52 Kan. App. 2d ___, ___ P.3d ___ (No. 113,545,
filed June 24, 2016); State v. Buell, 52 Kan. App. 2d ___, ___ P.3d ___ (No. 113,881,
filed June 24, 2016).

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Rodriguez' sentence is vacated, and the case is remanded for resentencing with
directions that Rodriguez' 1997 Nevada burglary conviction be scored as a nonperson
felony.