State v. Dickey (Court of Appeals)

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,245

STATE OF KANSAS,
Appellee,

v.

JEFF DICKEY,
Appellant.


SYLLABUS BY THE COURT

1.
K.S.A. 22-3504(1) specifically authorizes a court to "correct an illegal sentence at
any time." This language has generally been interpreted to mean that an illegal sentence
issue may be considered for the first time on appeal.

2.
An "illegal sentence" is (1) a sentence imposed by a court without jurisdiction; (2)
a sentence that does not conform to the applicable statutory provision, either in the
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.

3.
Under K.S.A. 22-3504(1), a defendant may challenge for the first time on appeal
the classification of his or her prior convictions and/or the resulting criminal history score
used to sentence him or her under the Kansas Sentencing Guidelines Act. Such a
challenge necessarily raises a claim that the sentence imposed for the current conviction
was illegal because the sentence did not comply with the applicable statutory provision
regarding the term of punishment authorized for the current conviction.
2



4.
A defendant's stipulation or failure to object at sentencing to the convictions listed
in his or her presentence investigation report may prevent the defendant from later
challenging the existence of the convictions listed in the report. 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. Accordingly, to the extent that State v. Vandervort, 276 Kan. 164, 72 P.3d
925 (2003), State v. Goeller, 276 Kan. 578, 77 P.3d 1272 (2003), and State v. McBride,
23 Kan. App. 2d 302, 930 P.2d 618 (1996), stand for the proposition that a subsequent
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 his or her prior convictions or the resulting
criminal history score, those cases are specifically overruled.

5.
Whether 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.

6.
The classification of a prior burglary conviction or adjudication for criminal
history purposes is controlled by K.S.A. 2014 Supp. 21-6811(d). Accordingly, the legal
reasoning and holding of State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), is
inapplicable to determining whether a prior burglary conviction or adjudication should be
classified as a person or nonperson offense.

3



7.
The constitutional protections described in Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), are implicated when a district court, for
purposes of enhancing a defendant's sentence for a current conviction, makes findings of
fact at sentencing that go beyond merely finding the existence of a prior conviction or the
statutory elements that made up the prior conviction.

8.
Under the facts of this case, the district court was constitutionally prohibited from
classifying the defendant's prior burglary adjudication as a person felony under K.S.A.
2014 Supp. 21-6811(d) because doing so necessarily resulted from the district court
making or adopting a factual finding (i.e., the prior burglary involved a dwelling) that
went beyond simply identifying the statutory elements that constituted the prior burglary
adjudication. Because burglary of a "dwelling" (as that term is defined in K.S.A. 2014
Supp. 21-5111[k]) was not included within the statutory elements making up the
defendant's burglary adjudication under K.S.A. 1991 Supp. 21-3715, the burglary
adjudication should have been classified as a nonperson felony for criminal history
purposes.

Review of the judgment of the Court of Appeals in 50 Kan. App. 2d 468, 329 P.3d 1230 (2014).
Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed May 22, 2015. Judgment of the
Court of Appeals vacating the sentence and remanding the case to the district court is affirmed. Judgment
of the district court is reversed and remanded with directions.

Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Anna M. Jumpponen, assistant county attorney, argued the cause, and Charles Ault-Duell,
assistant county attorney, Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
4




The opinion of the court was delivered by

ROSEN, J.: The State appeals the Court of Appeals' decision in State v. Dickey, 50
Kan. App. 2d 468, 329 P.3d 1230 (2014), vacating Jeff Dickey's 16-month prison
sentence for theft (a severity level 9 nonperson felony) and remanding for resentencing.
The Court of Appeals reached this decision after concluding that the district court
violated Dickey's constitutional rights as described in Descamps v. United States, 570
U.S. __, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by classifying Dickey's prior 1992
in-state juvenile adjudication for burglary as a person felony—resulting in Dickey having
a criminal history score of A and placing him in the A-9 grid box of the Kansas
Sentencing Guidelines.

The State argues that the Court of Appeals erred in reaching the merits of Dickey's
Descamps/Apprendi argument (raised for the first time on appeal) because Dickey failed
to challenge his criminal history score at sentencing and, in fact, stipulated to the
accuracy of his criminal history shown in the presentence investigation (PSI) report
prepared prior to his sentencing. Alternatively, the State argues that because Descamps
involved the classification of a prior crime for purposes of imposing an enhanced
sentence under the federal Armed Career Criminal Act (ACCA), 18 U.S.C. § 924 (2012),
Descamps is simply inapplicable to the issue of how Dickey's prior juvenile adjudication
should be classified (i.e., person or nonperson) for purposes of determining his criminal
history score and, in turn, sentencing him under the guidelines. Thus, according to the
State, Descamps does not provide a basis for vacating Dickey's sentence.

In his cross-petition for review, Dickey argues that the Court of Appeals erred in
concluding that the legal reasoning of State v. Murdock, 299 Kan. 312, 323 P.3d 846
5



(2014) (holding that all out-of-state crimes occurring prior to July 1, 1993—the date the
Kansas Sentencing Guidelines Act (KSGA) was implemented—must be classified as
nonperson crimes) was inapplicable to determining whether his 1992 in-state juvenile
adjudication for burglary was properly classified as a person felony.

Though we rely on a different legal basis than that cited by the Court of Appeals
for reaching the merits of Dickey's Descamps/Apprendi argument, we agree with the
panel's conclusion that Dickey's legal challenge to the classification of his prior burglary
adjudication can be raised for the first time on appeal. Furthermore, we also agree with
the panel that because the Kansas Sentencing Guidelines Act (KSGA) provides a specific
method for classifying prior burglaries for criminal history purposes, see K.S.A. 2014
Supp. 21-6811(d), neither Murdock's legal reasoning nor holding has any applicability to
the classification issue raised in this case.

Finally, in 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, we agree with the
Court of Appeals that classifying Dickey's prior burglary adjudication as a person felony
violates his constitutional rights as described under Descamps and Apprendi.
Consequently, his sentence must be vacated and his case remanded to the district court
6



for resentencing with instructions that his prior burglary adjudication be classified as a
nonperson felony.

FACTS

On April 9, 2013, Dickey pled guilty to felony theft. A hearing was conducted on
May 16, 2013, to consider sentencing on the theft conviction and whether to revoke
Dickey's probation in four other cases.

A PSI report was prepared prior to the hearing showing that Dickey had 55 prior
convictions, including 3 person felonies, 12 nonperson felonies, and 40 nonperson
misdemeanors. The individual who prepared the PSI report designated Dickey's criminal
history score an "A" based on the finding that Dickey had three prior adult convictions or
juvenile adjudications for person felonies. See K.S.A. 2014 Supp. 21-6809 (offender falls
into criminal history category A when offender's criminal history includes three or more
adult convictions or juvenile adjudications for person felonies, in any combination). One
of the three offenses scored as a person felony was a 1992 juvenile adjudication for
burglary, which occurred prior to the enactment of the KSGA and the classification of
crimes in Kansas as either person or nonperson.

Under K.S.A. 2014 Supp. 21-6811(d), in order to classify the 1992 burglary
adjudication as a person felony, the person who prepared the PSI would have had to
conclude that the 1992 burglary involved a "dwelling," which is defined 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." K.S.A. 2014 Supp. 21-5111(k). At the time
of Dickey's 1992 adjudication, burglary was defined as

"knowingly and without authority entering into or remaining within any:
(1) Building, manufactured home, mobile home, tent or other structure,
7



with intent to commit a felony or theft therein; or (2) motor vehicle,
aircraft, watercraft, railroad car or other means of conveyance of persons
or property, with intent to commit a felony or theft therein.

"Burglary as described in subsection (1) is a class D felony.
Burglary as described in subsection (2) is a class E felony." K.S.A. 1991
Supp. 21-3715.

As can be discerned from the statutory language, K.S.A. 1991 Supp. 21-3715 did
not distinguish between a burglary of a dwelling versus a burglary of a nondwelling.
Though the statute proscribed burglary of a "[b]uilding, manufactured home, mobile
home, tent or other structure," it did not require a showing that the structure burglarized
be a "dwelling," i.e., was "used or intended for use as a human habitation, home or
residence." K.S.A. 2014 Supp. 21-5111(k).

Notably, if a defendant challenges the person/nonperson classification of a prior
burglary for criminal history purposes under K.S.A. 2014 Supp. 21-6814(c), then the
State has the burden to prove by a preponderance of the evidence the facts required for
the classification (i.e., whether the prior burglary involved a dwelling or nondwelling).
See K.S.A. 2014 Supp. 21-6811(d).

A certificate of service sheet attached to the PSI report shows that the report was
served upon defense counsel via courthouse mail and U.S. mail on May 2, 2013. Dickey
never filed any notice of error pursuant to K.S.A. 2014 Supp. 21-6814(c) ("Upon receipt
of the criminal history worksheet prepared for the court, the offender shall immediately
notify the district attorney and the court with written notice of any error in the proposed
criminal history worksheet. Such notice shall specify the exact nature of the alleged
error."). At the sentencing hearing on May 16, Dickey responded affirmatively when the
court asked whether he had reviewed his criminal history and responded negatively when
8



the court subsequently asked whether he had an objection to any of the convictions listed.
Dickey testified in support of his motion for a downward departure sentence. During this
testimony, defense counsel asked: "And you understand that for starters your criminal
history A is that correct do you agree with that?" Dickey responded: "Yes, ma'am."

After hearing the testimony and the arguments of counsel, the district court denied
Dickey's motion for downward departure and sentenced Dickey to 16 months'
imprisonment (the standard sentence in the A-9 grid box) and ordered the sentence to run
consecutive to his sentences in the four other criminal cases in which his probation was
revoked. Dickey filed a timely notice of appeal.

Before the Court of Appeals, Dickey argued that the district court's classification
of his 1992 burglary adjudication—resulting in him having a criminal history score of
A—violated his rights under the Sixth Amendment to the United States Constitution as
described in Descamps (filed after Dickey's sentencing) and Apprendi. Dickey conceded
that he was raising this argument for the first time on appeal and that he failed to raise an
objection to his reported criminal history score. But he contended that his argument
implicated Apprendi and that based on State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147
(2000), issues implicating Apprendi could be raised for the first time on appeal because
such claims (1) involved only questions of laws arising on undisputed facts and are
determinative of the case; and (2) consideration of such issues are necessary to prevent
the denial of fundamental rights. Dickey also maintained that his argument could be
raised for the first time on appeal pursuant to K.S.A. 2014 Supp. 21-6820(e)(3), which
states: "In any appeal, the appellate court may review a claim that . . . the sentencing
court erred in ranking the crime severity level of the current crime or in determining the
appropriate classification of a prior conviction or juvenile adjudication for criminal
history purposes."

9



The State argued Descamps had no application to this case because Descamps
involved judicial factfinding at a federal sentencing hearing to determine whether a prior
burglary conviction qualified as a predicate offense under the ACCA for purposes of
imposing an enhanced sentence. Thus, according to the State, the case involved
application of a federal sentencing statute and not application of constitutional law.
Instead of Descamps, the State argued that the outcome of this case was controlled by
prior Court of Appeals' decisions indicating that a pre-KSGA burglary conviction could
be properly classified as a person felony if the underlying facts of the prior conviction
showed that a dwelling was burglarized. See, e.g., State v. May, 39 Kan. App. 2d 990,
186 P.3d 847 rev. denied 287 Kan. 768 (2008). Because Dickey failed to object to the
classification of his 1992 burglary adjudication as a person felony, the State argued that
the invited-error doctrine barred Dickey from challenging that classification on appeal.
By not objecting at sentencing, the State contended that Dickey essentially stipulated to
the fact that the 1992 burglary adjudication involved a dwelling, making it a person
felony. Consequently, Dickey was bound by his stipulation on appeal.

In further support of his argument that his 1992 burglary adjudication should be
classified as a nonperson felony, Dickey filed a letter with the Court of Appeals pursuant
to Supreme Court Rule 6.09(b) (2014 Kan. Ct. R. Annot. 52) advising it of this court's
recent decision in Murdock (issued after Dickey's brief was filed), holding that all out-of-
state crimes occurring prior to the enactment of the KSGA must be classified as
nonperson offenses for criminal history purposes. Obviously, by citing to Murdock,
Dickey believed that Murdock's legal reasoning applied to pre-KSGA in-state crimes.

In a published opinion, the Court of Appeals panel agreed with Dickey that his
Descamps argument could be raised for the first time on appeal because it only involved
a question of law on undisputed facts and was determinative of the case and because
consideration of the argument was necessary to serve the ends of justice and to prevent
10



the denial of a fundamental right. Dickey, 50 Kan. App. 2d at 474-75. With regard to the
State's argument that the invited-error doctrine barred Dickey from raising his Descamps
argument on appeal, the panel concluded that it was "completely irrational" to view
Dickey's fleeting and perfunctory responses at sentencing to routine and prefatory
questions as

"affirmative invitations by Dickey to count his 1992 juvenile adjudication for burglary as
a person felony. To construe Dickey to have invited the court to do so for purposes of
precluding him from pursuing his claim for relief not only counters the underlying
purpose of the doctrine but also unnecessarily thwarts the ends of justice." 50 Kan. App.
2d at 492.

Accordingly, the panel addressed the merits of Dickey's Descamps argument.
Before doing so, however, the panel analyzed this court's decision in Murdock. The panel
reasoned that because Murdock addressed the issue of how to classify pre-KSGA out-of-
state crimes for sentencing purposes—a situation for which the legislature had provided
no explicit statutory guidance—Murdock's reasoning for classifying such crimes as
nonperson offenses was inapplicable to the situation here: how to classify a pre-KSGA
in-state burglary conviction or adjudication. The court noted that K.S.A. 2013 Supp. 21-
6811(d) specifically applied to the classification of in-state burglary convictions
occurring before the enactment of the KSGA. Accordingly, the panel concluded that
"neither the analysis nor the holding in Murdock apply to the issue presented in this
case." Dickey, 50 Kan. App. 2d at 480.

With regard to whether classifying Dickey's 1992 burglary adjudication as a
person felony violated his constitutional rights as described in Descamps, the panel noted
that the burglary statute forming the basis of the 1992 adjudication was comprised of
multiple, alternative versions of the crime, but none included an element relating to
whether the structure burglarized was a dwelling. See K.S.A. 1991 Supp. 21-3715.
11



Consequently, the panel concluded that classifying Dickey's 1992 burglary adjudication
as a person felony would have necessarily required the district court to look beyond the
elements of the 1991 burglary statute in search of record evidence to determine whether
the burglary involved a dwelling—an undertaking the panel held was constitutionally
proscribed by Descamps and Apprendi. Accordingly, the panel concluded that as a matter
of law, Dickey's 1992 burglary adjudication should have been classified as a nonperson
felony and, thus, vacated his sentence and remanded for resentencing. Dickey, 50 Kan.
App. 2d at 486-90, 492.

Judge Pierron filed a concurring opinion, agreeing with the majority that Dickey's
1992 burglary adjudication must be classified as a nonperson felony. But, unlike the
majority, Judge Pierron believed that Murdock's reasoning was applicable to Dickey's
case and dictated that his 1992 adjudication be classified as a nonperson felony. Dickey,
50 Kan. App. 2d at 492.

The State filed a petition for review arguing that (1) Dickey waived appellate
review of the classification of his 1992 burglary adjudication because he failed to
challenge the classification at sentencing; and (2) Descamps is inapplicable to the
sentencing issue presented here because Descamps involved application of a federal
sentencing enhancement statute. Dickey filed a cross-petition for review arguing that
Murdock applies to his case and provides an alternative basis for classifying his burglary
adjudication as a nonperson felony. This court granted the State's petition for review as
well as Dickey's cross-petition for review.

WAIVER

The State argues that the Court of Appeals erred in addressing the merits of
Dickey's challenge to the classification of his prior burglary adjudication because Dickey
12



failed to raise an objection to the classification at sentencing and, in fact, stipulated to the
accuracy of his criminal history score. Consequently, the State contends that Dickey is
barred from challenging the classification on appeal based on the invited-error doctrine.

Though not relied on by either Dickey or the Court of Appeals as a means for
raising his Descamps argument for the first time on appeal, K.S.A. 22-3504(1)
specifically authorizes a court to "correct an illegal sentence at any time." This language
has generally been interpreted to mean that "an illegal sentence issue may be considered
for the first time on appeal." State v. Floyd, 296 Kan. 685, 690, 294 P.3d 318 (2013). See
also State v. Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013) ("This court may correct an
illegal sentence sua sponte."); State v. Scherzer, 254 Kan. 926, 930, 869 P.2d 729 (1994)
(Kansas courts have "specific statutory jurisdiction to correct an illegal sentence at any
time."). However, opinions from this court have been split as to whether a defendant who
fails to object or stipulates to his or her criminal history score at sentencing has waived a
later challenge to the criminal history score on appeal.

In State v. Vandervort, 276 Kan. 164, 178, 72 P.3d 925 (2003), the defendant
sought to challenge for the first time on appeal the classification of a prior 1980 Virginia
conviction as a person felony, which resulted in the defendant having a criminal history
score of B. Notably, the defendant failed to provide written notice pursuant to K.S.A. 21-
4715(c) (recodified at K.S.A. 2014 Supp. 21-6814[c]) of claimed errors within the
proposed criminal history worksheet. Furthermore, defense counsel stipulated to the
accuracy of the defendant's criminal history score listed in an amended PSI. But the
record on appeal indicated that the district court never personally addressed the defendant
at sentencing regarding his criminal history, and there was nothing in the record to
indicate that the defendant was afforded an opportunity to review the amended PSI prior
to sentencing. Vandervort, 276 Kan. at 173-75.

13



In addressing whether the defendant was procedurally barred from challenging his
criminal history score on appeal, the Vandervort court quoted State v. McBride, 23 Kan.
App. 2d 302, Syl. ¶ 3, 930 P.2d 618 (1996), stating "[t]he general rule regarding review
of an illegal sentence is that '[a] defendant who invites error by stipulating to his or her
criminal history cannot request a correction of sentence under K.S.A. 22-3504 after
pronouncement of sentence.'" Vandervort, 276 Kan. at 175-76. Despite acknowledging
McBride's holding, the Vandervort court proceeded to review the facts of two Court of
Appeals cases and noted that K.S.A. 21-4721(e)(3) (recodified at K.S.A. 2014 Supp. 21-
6820[e][3]) establishes appellate jurisdiction to consider whether the sentencing court
erred in determining the appropriate classification of a prior conviction. The Vandervort
court then concluded that under limited circumstances, an appellate court can address
alleged criminal history errors for the first time on appeal despite a stipulation or lack of
an objection at sentencing. The court described those circumstances as being when there
was no oral stipulation by the defendant in open court regarding the accuracy of the
criminal history contained within the PSI report and that there was no opportunity for the
defendant or defense counsel to review the criminal history prior to the sentencing
hearing. Finding that those circumstances were present in the case before it, the
Vandervort court proceeded to address the merits of the defendant's argument regarding
the calculation of his criminal history score. 276 Kan. at 176-77.

In McBride—the Court of Appeals decision cited by the Vandervort court—the
defendant stipulated to his criminal history score at sentencing but subsequently argued
on appeal that his prior juvenile adjudication for burglary should have been scored as a
nonperson felony instead of as a person felony. The defendant claimed that his resulting
sentence was an illegal sentence and, thus, could be corrected at any time pursuant to
K.S.A. 22-3504. The Court of Appeals, citing State v. Thomas, 220 Kan. 104, 106, 551
P.2d 873 (1976), in support, rejected the defendant's argument regarding the applicability
of K.S.A. 22-3504, stating: "[T]he law is well settled that one who, by his or her own
14



acts, invites error cannot then complain or take advantage of it on appeal." McBride, 23
Kan. App. 2d at 304. Because the defendant stipulated to his criminal history score at
sentencing, the panel concluded that the defendant had waived any argument on appeal
regarding the inaccuracy of his criminal history score. 23 Kan. App. 2d at 304.

Notably, the court in Thomas applied the invited-error doctrine to an evidentiary
question—not a sentencing issue. The defendant in Thomas claimed that the district court
erred in preventing him from presenting evidence at trial showing that the victim, in
exchange for a large sum of money, offered to "drop the case" against the defendant. 220
Kan. at 105-06. But prior to this occurrence at trial, the defendant had prevented the State
from questioning the victim as to whether the defendant was the one who had made the
initial offer of money. In concluding that the district court had not erred in excluding the
evidence, the Thomas court stated:

"The [defendant's] successful exclusion of similar evidence is significant. It is
settled law that one who by his acts invites error is in no position to complain or take
advantage of it on appeal. [Citations omitted.] Thus, a party who has had evidence
excluded is estopped to complain of the subsequent exclusion of similar evidence offered
by him." 220 Kan. at 106.

This court later relied on Vandervort in State v. Goeller, 276 Kan. 578, 584-85, 77
P.3d 1272 (2003). In Goeller, the defendant stipulated to a criminal history score of F at
sentencing. On appeal, he argued that the district court erred by including a felony
conviction in his criminal history that either was or could have been used to increase the
sentence for his current conviction of possession of marijuana. In declining to address the
merits of the defendant's argument, the Goeller court acknowledged that "[g]enerally,
under K.S.A. 21-4721(e), we have jurisdiction to consider whether the district court erred
in determining the appropriate classification of [the defendant's] prior convictions." 276
Kan. at 585. But, relying on Vandervort (which relied on McBride, which, in turn, relied
15



on Thomas—a case applying the invited-error doctrine to an evidentiary issue), the
Goeller court reasoned that "[a] criminal defendant who stipulates to an incorrect
criminal history score cannot later complain on appeal of an illegal sentence based on that
score." Goeller, 276 Kan. 578, Syl. ¶ 6.

More recent cases from this court have interpreted K.S.A. 22-3504 as allowing
challenges to criminal history scores and/or classifications of prior crimes to be raised for
the first time on appeal despite a stipulation or lack of objection at sentencing. In State v.
Neal, 292 Kan. 625, 258 P.3d 365 (2011), the defendant had three municipal
misdemeanor convictions that were aggregated under K.S.A. 21-4711(a) (recodified at
K.S.A. 2014 Supp. 21-6811[a]) to form a single person felony for purposes of calculating
his criminal history score. Notably, the defendant never lodged an objection to his
criminal history score at sentencing. The defendant appealed, challenging his criminal
history score but not on the basis of the misdemeanors' aggregation. His convictions and
sentences were later affirmed by the Court of Appeals. Approximately 7 years after his
convictions, the defendant filed a motion to correct an illegal sentence based on his
allegation that two of his municipal misdemeanor convictions were uncounseled but
resulted in suspended jail sentences. Accordingly, the defendant argued that the
convictions were constitutionally invalid and could not be considered in calculating his
criminal history score. 292 Kan. at 626-27.

The district court and the Court of Appeals concluded that the defendant was
procedurally barred from challenging the accuracy of his criminal history score in a
motion to correct an illegal sentence because the defendant had already challenged the
score on direct appeal. In other words, the defendant was improperly using a motion to
correct an illegal sentence as a substitute for a second appeal. Neal, 292 Kan. at 628. This
court in Neal disagreed, noting that though a defendant is generally required to raise all
available issues on direct appeal, K.S.A. 22-3504(1) specifically states that a court "'may
16



correct an illegal sentence at any time.'" 292 Kan. at 630. The Neal court recognized that
caselaw had previously defined an illegal sentence as one "'imposed by a court without
jurisdiction, a sentence which does not conform to the statutory provision, either in
character or the term of the punishment authorized, or a sentence which is ambiguous
with regard to the time and manner in which it is to be served.' [Citations omitted]" 292
Kan. at 630. The court reasoned that the defendant's challenge to his criminal history
score was

"necessarily a challenge to his sentence that the history score helped produce. If the
history score is incorrect, it follows that his resulting sentence cannot conform with the
statutory provision in the term of the punishment authorized . . . and, consequently, is an
illegal sentence. Accordingly, K.S.A. 22-3504 is the proper vehicle for his claim.
[Citation omitted.]" 292 Kan. at 631.

Accordingly, the Neal court proceeded to address the merits of the defendant's
argument. 292 Kan. at 631.

A similar result was reached in State v. Weber, 297 Kan. 805, 304 P.3d 1262
(2013), where the defendant directly appealed the district court's designation of his prior
Michigan conviction as a sexually violent crime for purposes of classifying him as an
aggravated habitual sex offender and, in turn, imposing an enhanced sentence of life
without the possibility of parole. The State argued that the defendant was procedurally
barred from challenging the classification of the Michigan conviction on appeal because
he had failed to challenge the classification at sentencing. Additionally, the State argued
that defense counsel stipulated at sentencing that the defendant should be sentenced as an
aggravated habitual sex offender. 297 Kan. at 813.

17



The Weber court rejected the State's waiver argument, stating that

"K.S.A. 22-3504(1) specifically authorizes a court to correct an illegal sentence at any
time. We reiterated recently that this means that 'an illegal sentence issue may be
considered for the first time on appeal.' [Citation omitted.] Moreover, if a prior
conviction is erroneously included in the calculation of an enhanced sentence under the
Habitual Criminal Act, the resulting sentence is illegal as not conforming to the
statutorily authorized term of punishment. [Citation omitted.] Therefore, if the district
court erroneously included the prior Michigan assault conviction in calculating [the
defendant's] enhanced sentence under the aggravated habitual sex offender provision, the
resulting sentence is illegal and is subject to challenge here and now." 297 Kan. at 813-
14.

With regard to the State's argument concerning defense counsel's stipulation at
sentencing, the Weber court agreed with the State that the defendant "should be bound by
his counsel's stipulation of fact in the district court with respect to his criminal history,
i.e., the factual stipulation that Weber was convicted in Michigan of the crime of assault
with intent to commit criminal sexual contact in the second degree." Weber, 297 Kan. at
814. But the court concluded that the "factual stipulation does not answer the question
before us, which is: what is the legal effect of that prior conviction on the imposition of
an enhanced sentence." 297 Kan. at 814. The court acknowledged that defense counsel
had stipulated that the prior Michigan conviction mandated that the defendant receive the
enhanced sentence. However, the court noted that in prior cases, it had not permitted
parties to stipulate to the legal conclusions drawn from admitted facts. The court stated:

"The legal question of whether [the defendant's] admitted criminal history was sufficient
to meet the requirements of K.S.A. 2009 Supp. 21-4642(c)(1)(B), so as to define him as
an aggravated habitual sex offender subject to enhanced sentencing, '"must rest upon the
court, uninfluenced by stipulations of the parties."' [Citations omitted.] Therefore, despite
the concession of [defense] counsel, 'we nevertheless must address the accuracy of the
18



purported legal basis of [the defendant's] concession.' [Citation omitted]; see also Ritchie
Paving, Inc. v. City of Deerfield, 275 Kan. 631, 641, 67 P.3d 843 (2003) ('Stipulations as
to what the law is are not effective and not controlling on this court.').

"Perhaps more to the point here, 'Kansas law is clear that a defendant can't agree
to an illegal sentence.' [Citations omitted.] Accordingly, the State's alleged procedural bar
emanating from a defense stipulation . . . is simply unavailing." Weber, 297 Kan. at 814-
15.

It appears that the legal reasoning of Neal and Weber is more sensible than the line
of cases holding that a defendant waives a subsequent challenge to the classification of
prior convictions or to his or her criminal history score if he or she stipulated or failed to
object to the classification or score at sentencing. As Weber indicates, a defendant's
stipulation or failure to object at sentencing will prevent the defendant from later
challenging the existence of convictions listed in his or her criminal history. 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. Weber, 297 Kan. at 814-15. 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.

The State contends that determining whether a prior burglary conviction or
adjudication should be classified as a person or nonperson offense is a factual
determination given that the classification is dependent on whether the prior burglary
involved a dwelling. See K.S.A. 2014 Supp. 21-6811(d). Because Dickey never objected
to the classification of his 1992 burglary adjudication as a person felony pursuant to
19



K.S.A. 2014 Supp. 21-6814(c), the State contends that it was relieved of its burden at
sentencing to prove by a preponderance of the evidence that the prior burglary involved a
dwelling. See K.S.A. 2014 Supp. 21-6811(d). Accordingly, the State contends that the
invited-error doctrine should apply in this case to bar Dickey from challenging the
classification of his burglary adjudication on appeal.

The problem with the State's argument is that Dickey raised a pure legal argument
on appeal for why his burglary adjudication was improperly classified as a person felony.
As the Court of Appeals' panel in this case noted:

"Given [the] statutory language [of K.S.A. 2014 Supp. 21-6811(d)], it might
appear as if the question presented on appeal—whether the sentencing court erred in
counting Dickey's prior juvenile adjudication for burglary as a person felony and
enhancing his sentence—can be answered by deciding whether the State established by a
preponderance of the evidence that the 1992 juvenile adjudication for burglary involved a
dwelling. But that is not the claim of error asserted by Dickey here. See Apprendi v. New
Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) ('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.'
[Emphasis added.]). Dickey claims the sentencing court violated Apprendi by going
beyond the fact that he had a pre-KSGA unclassified prior adjudication for burglary to
consider other facts in ultimately deciding that his prior burglary adjudication involved a
dwelling and was a person felony, which in turn increased the penalty for his current
crime beyond the prescribed statutory maximum.

"Based on the manner in which Dickey has framed the issue and the cases he
relies on in support thereof, the question of whether the 1992 burglary actually involved a
dwelling is irrelevant. Instead, the relevant question is whether the sentencing court was
constitutionally permitted to go beyond the fact that Dickey had a prior adjudication for
burglary in 1992 to determine that Dickey's prior adjudication for burglary qualified as a
person felony and then to use that determination to enhance his current sentence. In order
20



to answer that question, we must apply the analysis set forth by the United States
Supreme Court in Descamps v. United States, 570 U.S. __, 133 S. Ct. 2276, 186 L. Ed.
2d 438 (2013)." Dickey, 50 Kan. App. 2d at 481-82.

Again, the language of K.S.A. 22-3504(1) specifically authorizes a court to
"correct an illegal sentence at any time." This language has generally been interpreted to
mean that "an illegal sentence issue may be considered for the first time on appeal."
Floyd, 296 Kan. at 690. This court has defined an "illegal sentence" as "(1) a sentence
imposed by a court without jurisdiction; (2) a sentence that does not conform to the
applicable statutory provision, either in the 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." State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). As
noted above, in Neal, this court concluded that a challenge to a district court's criminal
history score calculation can be raised pursuant to K.S.A. 22-3504(1) because such a
challenge essentially raises a claim that the sentence imposed does not conform with the
applicable statutory provision regarding the term of punishment authorized for the current
conviction. 292 Kan. at 631.

Though we rely on a different basis than the Court of Appeals did to address the
merits of Dickey's argument, we agree with the Court of Appeals that Dickey's
argument—a legal challenge to the classification of a prior adjudication for purposes of
lowering his criminal history score—can be raised for first time on appeal pursuant to
K.S.A. 22-3504(1). See Neal, 292 Kan. at 631.

Whether 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. State v. Murdock, 299 Kan. 312, 314, 323 P.3d 846 (2014); see also
Makthepharak v. State, 298 Kan. 573, 577-78, 314 P.3d 876 (2013) (Whether a sentence
21



is illegal within the meaning of K.S.A. 22-3504 is a question of law over which this court
has unlimited review.).

THE APPLICABILITY OF STATE V. MURDOCK

As noted above, before addressing Dickey's Descamps v. United States, 570 U.S.
__, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), argument, the Court of Appeals addressed
whether this court's decision in Murdock (holding that all pre-KSGA out-of-state crimes
must be classified as nonperson crimes for criminal history purposes) should be applied
to the classification issue raised in this case. The Murdock decision considered and
resolved two separate issues before reaching its ultimate holding. First, Murdock relied
on State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010), to conclude as a matter of law
that when classifying a prior out-of-state conviction as person or nonperson, the out-of-
state crime must be compared to the criminal statute in effect in Kansas at the time the
prior out-of-state crime was committed. Murdock, 299 Kan. at 318. Second, because
there was not a statutory provision within the KSGA directing how pre-KSGA out-of-
state crimes should be classified for criminal history purposes, K.S.A. 21-4710(d)(8)
dictated that such crimes had to be classified as nonperson offenses because, prior to the
enactment of the KSGA, classification of crimes as person or nonperson did not exist.
Murdock, 299 Kan. at 318-19.

As the Dickey panel recognized, unlike the prior convictions at issue in Murdock,
there is a statutorily prescribed mechanism for classifying Dickey's 1992 juvenile
adjudication for burglary. K.S.A. 2014 Supp. 21-6811(d) provides that a prior burglary
conviction or adjudication will be classified for criminal history purposes as: (1) a person
felony if the prior burglary conviction or adjudication involved a dwelling, or (2) a
nonperson felony if the prior burglary conviction or adjudication did not involve a
dwelling. Accordingly, the classification issue presented in this case is specifically
22



controlled by K.S.A. 2014 Supp. 21-6811(d) and not Murdock. We will now address
whether K.S.A. 2014 Supp. 21-6811(d) can be constitutionally applied to Dickey.

DESCAMPS

In a thorough and comprehensive analysis of the United States Supreme Court's
decision in Descamps, the Court of Appeals panel majority concluded that classifying
Dickey's 1992 juvenile adjudication for burglary as a person felony would require
judicial factfinding in violation of Dickey's constitutional rights as described in
Descamps and Apprendi. State v. Dickey, 50 Kan. App. 2d 468, 485-91, 329 P.3d 1230
(2014).

Whether a defendant's constitutional rights as described under Apprendi were
violated by a district court at sentencing raises a question of law subject to unlimited
review. State v. Anthony, 273 Kan. 726, 727, 45 P.3d 852 (2002).

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 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
23



violate a defendant's jury trial rights. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781
(2002).

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. Descamps, 133 S. Ct. at 2288-89. In Descamps, 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 ACCA,
which increases the sentences of defendants who have three prior convictions for violent
felonies. Unlike the ACCA's "generic burglary" definition, the California burglary statute
at issue did not require a "breaking and entering"; 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 § 459 (West 2010). Consequently, in order to determine
whether the defendant's California burglary conviction qualified as a predicate offense
under the ACCA, the sentencing court reviewed the underlying facts of the prior
conviction to determine whether the facts showed that the defendant accomplished the
burglary by breaking and entering. The Descamps Court held that this examination
violated Apprendi because the sentencing court engaged in factfinding to determine
whether the defendant's actions satisfied an element not contained within the California
burglary statute. See 133 S. Ct. at 2281-87.

To determine whether a prior conviction qualifies as a predicate offense under the
ACCA without violating Apprendi, the Descamps Court held that a sentencing court must
use one of two approaches—the categorical approach or the modified categorical
approach. Descamps,133 S. Ct. at 2281-84, 2287. A sentencing court applies the
categorical approach when the statute forming the basis of the defendant's prior
conviction contains a single set of elements constituting the crime. A sentencing court
24



simply compares "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 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 forming the basis of
the prior conviction is a "divisible statute," i.e., a statue which includes multiple,
alternative versions of the crime and at least one of the versions matches the elements of
the generic offense. Descamps, 133 S. Ct. at 2281-82, 2284-86. Naturally, when a
defendant's prior conviction arises under a divisible statute, a sentencing court cannot
determine whether a defendant's prior conviction constitutes a predicate offense under the
ACCA by merely examining the elements of the statute. Thus, without running afoul of
Apprendi, a sentencing court is permitted to look beyond the elements of the statute and
examine a limited class of documents to determine "which of a statute's alternative
elements formed the basis of the defendant's prior conviction." 133 S. Ct. at 2284. Such
documents 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).

The Descamps Court clarified that the modified categorical approach is prohibited
if the statute is not divisible, i.e., contains one set of elements defining the crime. 133 S.
Ct. at 2281-83. And, as the panel in this case astutely pointed out, even if the statute is
divisible, the modified categorical approach may not apply

"because, in some cases, none of the alternative elements will match any elements of the
corresponding generic crime. Post-Descamps, a case involving a prior statute of
25



conviction for burglary containing alternative elements, none of which match any
element of a generic statute, is virtually indistinguishable from a case involving a prior
statute of conviction for burglary containing a single and indivisible set of elements; thus,
the modified approach has no role to play." (Emphasis added.) Dickey, 50 Kan. App. 2d
at 487.

See also Descamps, 133 S. Ct. at 2286 ("Our decisions authorize review of the plea
colloquy or other approved extra-statutory documents only when a statute defines
burglary not [as here] overbroadly, but instead alternatively, with one statutory phrase
corresponding to the generic crime and another not. In that circumstance, a court may
look to the additional documents to determine which of the statutory offenses [generic or
non-generic] formed the basis of the defendant's [prior] conviction." [Emphasis added.])

The categorical approach and modified categorical approach described in
Descamps ensure that sentencing courts, when examining a prior conviction for
sentencing purposes, do not engage in factfinding in violation of Apprendi by attempting
to determine whether a defendant's actions satisfied an element not contained within the
statute under which the defendant's prior conviction arose. See Descamps, 133 S. Ct. at
2281-87. Though Descamps involved determining whether a prior conviction qualified as
a predicate offense under the ACCA, the methods Descamps outlined for making this
determination in a constitutionally valid manner necessarily apply to determining whether
a prior burglary conviction should be classified as a person or nonperson felony under the
KSGA.

Applying Descamps here, K.S.A. 2014 Supp. 21-6811(d) states that a prior
burglary conviction or adjudication will be classified as a person felony if the prior
burglary involved a "dwelling," which is defined 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,
26



home or residence." (Emphasis added.) K.S.A. 2014 Supp. 21-5111(k). At the time of
Dickey's 1992 adjudication, burglary was defined as

"knowingly and without authority entering into or remaining within any: (1) Building,
manufactured home, mobile home, tent or other structure, with intent to commit a felony
or theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of
conveyance of persons or property, with intent to commit a felony or theft therein.

"Burglary as described in subsection (1) is a class D felony. Burglary as
described in subsection (2) is a class E felony." K.S.A. 1991 Supp. 21-3715.

Though the burglary statute forming the basis for Dickey's prior juvenile
adjudication was comprised of multiple, alternative versions of the crime, none included
an element requiring that the structure burglarized be a dwelling, i.e., "used or intended
for use as a human habitation, home or residence." K.S.A. 2014 Supp. 21-5111(k).
Consequently, employing either a categorical approach or a modified categorical
approach to determine whether Dickey's prior burglary adjudication involved a dwelling
would be constitutionally prohibited under Descamps and Apprendi. See Descamps, 133
S. Ct. at 2288-89.

Based on the above analysis, the district court was constitutionally prohibited from
classifying Dickey's prior burglary adjudication as a person felony because 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. Because burglary of a "dwelling" (as that term is defined in
K.S.A. 2014 Supp. 21-5111[k]) was not included within the statutory elements making up
Dickey's prior burglary adjudication, the burglary adjudication should have been
classified as a nonperson felony.

27



Accordingly, we affirm the Court of Appeals' decision vacating Dickey's sentence
and remand the case to the district court for resentencing with directions that Dickey's
1992 adjudication for burglary be classified as a nonperson felony for purposes of
calculating his criminal history score. Judgment of the district court is reversed and
remanded.