State v. Barnes

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NOT DESIGNATED FOR PUBLICATION

No. 114,540

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT JOE BARNES,
Appellant.


MEMORANDUM OPINION

Appeal from Finney District Court; PHILIP C. VIEUX, judge. Opinion filed December 9, 2016.
Vacated and remanded with directions.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., BUSER, J., and WALKER, S.J.

Per Curiam: Robert Joe Barnes appeals, claiming his criminal history score
improperly calculated a 1978 Texas burglary conviction as a person felony. Barnes
argues the district court failed to analyze whether his 1978 Texas burglary charge should
be classified as a person felony or a nonperson felony as required by State v. Dickey, 301
Kan. 1018, 1037-39, 350 P.3d 1054 (2015) (Dickey I). We agree with Barnes, and we
remand for the district court to determine how Barnes' 1978 Texas burglary conviction
should be scored in compliance with Dickey I. Vacated and remanded with directions.

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FACTS

In 2011, Barnes pleaded no contest to one count of distribution of
methamphetamine and one count of possession of a controlled substance with no drug tax
stamp affixed. A presentence investigation report (PSI) was prepared and used at
sentencing indicating Barnes' criminal history scored was B. One of the entries on the PSI
was a 1978 Texas conviction for "Burglary of a Habitat," which was scored as a person
felony.

On October 6, 2014, Barnes filed a motion to correct an illegal sentence pursuant
to State v. Murdock, 299 Kan. 312, 313, 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), arguing the
district court erred in scoring his 1978 Texas burglary conviction as a person felony. The
district court denied Barnes' motion. Barnes timely appealed.

ANALYSIS

Dickey I Applies

Barnes acknowledges Murdock was explicitly overruled by Keel, 302 Kan. 560,
Syl. ¶ 9. Nevertheless, he argues his sentence is illegal under Dickey I, 301 Kan. 1018.
The State argues Barnes is not entitled to relief because his motion to correct an illegal
sentence was based on Murdock rather than Dickey I. The State asserts Barnes' motion
was properly denied by the district court and his sentence was not illegal at the time it
was imposed. While the district court was correct in denying Barnes' motion based on
Murdock, Barnes' sentence may still be illegal within the meaning of K.S.A. 22-3504.
See Dickey I, 301 Kan. at 1035 (finding Dickey's claim was not controlled by Murdock;
rather, the issue was whether Dickey's pre-KSGA burglary conviction should be scored
as a person felony under K.S.A. 2014 Supp. 21-6811[d]).
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Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question
of law over which the appellate court has unlimited review. An illegal sentence, as
contemplated by K.S.A. 22-3504(1), 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. [Citation omitted.]" State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256
(2014).

K.S.A. 22-3504(1) provides that a court may correct an illegal sentence at any
time. A defendant may challenge a sentence even after failing to challenge the sentence
on direct appeal. State v. Williams, 298 Kan. 1075, 1077, 319 P.3d 528 (2014). 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. Dickey
I, 301 Kan. at 1034.

In Dickey I, the Supreme Court found:

"[I]n order to classify a prior burglary conviction or adjudication as a person
offense under K.S.A. 2014 Supp. 21-6811(d), a sentencing court must find that the prior
burglary involved a 'dwelling,' i.e., 'a building or portion thereof, a tent, a vehicle or other
enclosed space which is used or intended for use as a human habitation, home, or
residence.' K.S.A. 2014 Supp. 21-5111(k)."

From the record before us, we cannot tell what type of structure was burglarized by
Barnes in 1978.

The State also asserts Dickey I should not be applied retroactively to any case that
has become final. The State's argument is erroneous. Our Supreme Court recently
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addressed this question in State v. Dickey, 305 Kan. 217, 380 P.3d 230 (2016) (Dickey
II).

In Dickey II, our Supreme Court held the proper classification of a prior conviction
for purposes of determining a defendant's criminal history score is purely a matter of state
statutory law. Dickey II explicitly rejected the State's arguments regarding retroactivity
and res judicata barring the application of Dickey I to a postappeal claim of an illegal
sentence. However, Dickey II expressly reaffirmed "'"the definition of an illegal sentence
does not include a claim that the sentence violates a constitutional provision [and] a
defendant may not file a motion to correct an illegal sentence based on constitutional
challenges to his or her sentence."'" 380 P.3d at 233 (quoting State v. Moncla, 301 Kan.
549, 553-54, 343 P.3d 1161 [2015] [quoting State v. Mitchell, 284 Kan. 374, 377, 162
P.3d 18 (2007)]).

Dickey II acknowledged Dickey I lacked clarity and explained the requirement that
a prior burglary conviction be of a dwelling in order to constitute a person felony is a
matter of state statutory law. Dickey II further acknowledged Dickey I was imbued with
"a thick overlay of constitutional law occasioned by the State's unconstitutional efforts to
'save' Dickey's prior conviction as a person felony." 380 P.3d at 233. Although it is not
explicitly stated, Dickey II seems to suggest that while the classification of a prior
burglary conviction as a person felony is a matter of state statutory law, a sentencing
court must apply the statute in a manner consistent with the defendant's constitutional
rights in order for the sentence to be lawful. 380 P.3d at 233. Similarly, in State v.
Martin, this court held "when a constitutional challenge results in the determination that
the defendant's criminal history score is incorrect, the resulting sentence does not
conform to the statutory provisions in the term of the punishment authorized and,
consequently, is an illegal sentence." 52 Kan. App. 2d 474, 483, 369 P.3d 959 (2016),
(citing State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 [2011]), petition for rev. filed May
5, 2016. Dickey I applies to Barnes' claim.
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Dickey I Requires Resentencing

The State argues Dickey I was wrongly decided and therefore should not be
applied to Barnes' claim. However, the State concedes that if Dickey I applies, the matter
should be remanded to the district court for resentencing. This court is bound to follow
Kansas Supreme Court precedent, absent some indication the Supreme Court is departing
from its previous position. State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev.
denied 302 Kan. 1012 (2015). Our Supreme Court has given no indication it is departing
from Dickey I; thus, we are bound to follow it. Barnes asserts Dickey I applies but argues
"the State should not get a second chance to prove what it should have proven at the first
sentencing." He acknowledges, however, in State v. Lewis, No. 113,438, 2016 WL
1546133, at *1 (Kan. App. 2016) (unpublished opinion), petition for rev. filed May 12,
2016, this court found remand to the district court was necessary to determine whether
Lewis' 1978 Texas conviction for burglary of a habitation should be scored as a person
felony based on the Dickey I framework.

Here, remand to the district court is appropriate. To date, there have been no
specific findings by the district court regarding the nature of Barnes' Texas burglary
conviction. The conviction was simply scored as a person felony on the PSI without any
discussion or explanation on the record. The district court must make appropriate
findings utilizing Dickey I to make sure Barnes' sentence complies with the statutory
provisions of K.S.A. 2015 Supp. 21-6811. Dickey II, 380 P.3d at 233; Dickey I, 301 Kan.
at 1039; Lewis, 2016 WL 1546133, at *5.

Vacated and remanded with directions.