State v. Alexander

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NOT DESIGNATED FOR PUBLICATION

No. 112,300

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LORETTA LYNN ALEXANDER,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed November 13, 2015.
Affirmed in part, reversed in part, and remanded for further proceedings.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Amy E. Norton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before GREEN, P.J., GARDNER, J., and JOHNSON, S.J.

Per Curiam: Loretta Alexander, having pleaded guilty to theft, appeals her
sentence. The district court sentenced Alexander to 12 months' probation with an
underlying 12-month prison term. We reverse in part and affirm in part.

The facts of this case are undisputed. In March 2014, Alexander pleaded guilty to
theft. Before sentencing, Alexander filed an objection to her criminal history score.
Alexander argued that based on State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014),
her May 1993 burglary conviction should not have been scored as a person felony
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because it occurred before the Kansas Sentencing Guidelines Acts (KSGA) took effect on
July 1, 1993. The district court determined Alexander's criminal history score was correct
and sentenced her to 12 months' probation with an underlying 12-month prison term.

Alexander now argues the district court erred in scoring her pre-KSGA burglary
conviction as a person felony because the judge's finding that her 1993 conviction was
for burglary of a dwelling violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), and because under Murdock all pre-KSGA convictions
should be scored as nonperson felonies. Alexander also claims that her Sixth and
Fourteenth Amendment rights were violated when her criminal history, which had not
been proved to a jury beyond a reasonable doubt, was used to increase her sentence. Both
of Alexander's issues are properly before us. See State v. Dickey, 301 Kan. 1018, 1034,
350 P.3d 1054 (2015).

Scoring pre-KSGA burglary convictions

Whether a prior conviction was properly classified as a person or nonperson
felony is a question of law, over which we have unlimited review. 301 Kan. at 1034.

The State concedes that under State v. Dickey the district court erred in scoring
Alexander's pre-KSGA burglary conviction as a person felony. In Dickey, the district
court scored the defendant's 1991 burglary conviction as a person felony. 301 Kan. at
1022. The Supreme Court determined in order to score the defendant's burglary
conviction as a person felony under K.S.A. 2014 Supp. 21-6811(a), which prescribes how
pre-KSGA burglary convictions are to be classified for criminal history purposes, the
district court had to find that the defendant burglarized a dwelling. 301 Kan. at 1021. And
because the 1991 burglary statute did not include a dwelling element, the Supreme Court
concluded the district court's finding was constitutionally prohibited under Apprendi and
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Descamps v. United State, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). 301
Kan. at 1021.

Likewise, here, the district court found that Alexander had burglarized a dwelling,
even though her burglary conviction was based on K.S.A. 1992 Supp. 21-3715, which
also does not include a dwelling element. According to Dickey, that finding violated
Apprendi and Descamps. Therefore, the district court erred in scoring Alexander's pre-
KSGA burglary conviction as a person felony.

Using criminal histories to increase sentences

Alexander concedes that in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), the
Kansas Supreme Court held that the use of a defendant's criminal history to increase his
or her sentence, even if it was not proved beyond a reasonable doubt before a jury, did
not violate Apprendi. This issue is raised only to preserve it for federal review.

Alexander misconstrues Apprendi but is correct about the Supreme Court's
decision in Ivory. See 273 Kan. at 46-48. And we are duty bound to follow Kansas
Supreme Court precedent, unless it indicates it is departing from its previous position.
See State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294
Kan. 946 (2012). The Supreme Court has not indicated such a departure. See State v.
Barber, 302 Kan. ___, 353 P.3d 1108, 1122-23 (2015). Thus, the district court did not err
in using Alexander's criminal history to increase her sentence.

Affirmed in part, reversed in part, and remanded for further proceedings.