State v. Lewis

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NOT DESIGNATED FOR PUBLICATION

Nos. 118,401
118,402
118,403

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

HAROLD L. LEWIS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WILLIAM S. WOOLLEY, judge. Opinion filed December 21,
2018. Sentences vacated and case remanded with directions.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

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

PER CURIAM: Harold L. Lewis pleaded guilty to possession of cocaine in case No.
05 CR 3213 for a crime committed in August 2005. At the same plea hearing, he pleaded
no contest to forgery in case No. 06 CR 247, committed in January 2006. In case No. 07
CR 428, Lewis pleaded no contest to aggravated battery, criminal possession of a firearm,
and aggravated escape from custody, committed in February 2007. In all three cases, the
district court sentenced Lewis as having a criminal history score of B based partially on
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his 1978 Texas conviction for burglary of a habitation, which the district court scored as a
person felony.

In 2014, Lewis filed a motion to correct an illegal sentence based on State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel, 302 Kan. 560,
357 P.3d 251 (2015), arguing that his pre-1993 person convictions should have been
classified as nonperson convictions. Without holding a hearing, the district court denied
that motion and held that Murdock did not apply retroactively to Lewis' cases. Lewis
appealed, arguing that the district court imposed an illegal sentence by erroneously
classifying his 1978 Texas burglary of a habitation conviction as a person felony under
State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015). State v. Lewis, No. 113,438,
2016 WL 1546133 (Kan. App. 2016) (unpublished opinion). We agreed with the State
that Texas' definition of habitation fits within Kansas' definition of dwelling, but we
reversed and remanded the case with directions to the district court for two reasons: to
review court documents from the 1978 case and determine if the prior conviction
involved burglary of a habitation; and to determine whether Texas' 1978 burglary statute
was comparable to the Kansas burglary statute in effect when Lewis committed his
current crimes of conviction. Lewis, 2016 WL 1546133 at *5.

At the hearing on remand, Lewis argued that his 1978 Texas conviction should be
scored as a nonperson felony because the facts showed his crime involved a separate
garage without an entrance to the house. The district court rejected that argument based
on prior court rulings that treated Texas' burglary of a habitation the same as Kansas'
burglary of a dwelling. See State v. Mullens, 51 Kan. App. 2d 1114, 1117, 360 P.3d 1107
(2015) (finding that the Texas' definition of habitation "fits within" Kansas' definition of
dwelling and is thus comparable to Kansas' residential burglary). After reviewing the
Texas court documents, the district court determined that Lewis' Texas burglary involved
a habitation so that crime was comparable to Kansas' burglary and was thus properly
scored as a person crime. Lewis appeals. All three cases are consolidated on appeal.
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Analysis

Lewis argues solely that his sentence is illegal because the district court
erroneously classified his 1978 Texas burglary conviction as a person felony. He
contends that Texas' burglary of a habitation is not comparable to Kansas' burglary of a
dwelling because Texas' definition of habitation is broader than Kansas' definition of
dwelling, encompassing both nondwelling buildings or structures and unenclosed
property that would not constitute burglary of a dwelling in Kansas. Lewis asks us to
remand the case for resentencing with an amended criminal history score.

Res Judicata

We first examine the State's contention that the doctrine of res judicata precludes
Lewis' argument. We have unlimited review over this issue of law. Cain v. Jacox, 302
Kan. 431, 434, 354 P.3d 1196 (2015). Four elements must be present for res judicata to
apply: (1) the same claim; (2) the same parties; (3) claims that were or could have been
raised; and (4) a final judgment on the merits. 302 Kan. 431, Syl. ¶ 2.

In 2014, Lewis argued that his prior Texas convictions, including his 1978
burglary conviction, could not be classified as person felonies because they were
committed before Kansas enacted the KSGA, citing Murdock. His claim was denied on
the merits. Now, Lewis claims that his 1978 Texas burglary of a habitation conviction
should not be classified as a person felony because Kansas has no comparable crime.
This is the same claim based on a different legal theory—one that is not distinct enough
to give rise to a new claim for purposes of res judicata. Midwest Crane & Rigging v.
Schneider, No. 113,725, 2016 WL 1391805, at *5 (Kan. App. 2016) (unpublished
opinion); see State v. McIntyre, No. 117,787, 2018 WL 3321177, at *2 (Kan. App. 2018)
(unpublished opinion). The other requirements are met too, as this appeal involves the
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same parties, claims that could have been raised previously, and a final judgment on the
merits. So ordinarily res judicata would bar Lewis' current appeal.

But the Kansas Supreme Court does not seem to apply res judicata in this context,
finding that "arguments concerning retroactivity and res judicata . . . are all unavailing in
the context of a motion to correct an illegal sentence which can be made at any time."
State v. Dickey, 305 Kan. 217, 222, 380 P.3d 230 (2016). See State v. McAlister, 54 Kan.
App. 2d 65, 73, 396 P.3d 100 ("Our Supreme Court in Dickey II makes clear that a
sentence based on an incorrect criminal history score is an illegal sentence that can be
corrected at any time regardless of the procedural posture of the case."), rev. granted 306
Kan. 1326 (2017); but see State v. Conley, 287 Kan. 696, 698, 197 P.3d 837 (2008)
(finding "[r]es judicata applies to motions to correct illegal sentence filed pursuant to
K.S.A. 22-3504. Such a motion may not be used to breathe new life into an appellate
issue previously adversely determined."); McAlister, 54 Kan. App. 2d at 82 (Gardner, J.,
concurring) ("As Conley recognizes, K.S.A. 22-3504's provision that an illegal sentence
can be corrected 'at any time' merely means that, unlike our other statutes providing post-
conviction remedies, the legislature has imposed no time limit in which to bring these
motions."). Based on the Kansas Supreme Court's most recent approach, we find res
judicata does not bar Lewis from raising this claim again.

Law of the Case Doctrine

The State next contends that the law of the case doctrine bars us from reviewing
Lewis' claim. This doctrine prevents a party from relitigating an issue already decided on
appeal in successive stages of the same proceeding. State v. Parry, 305 Kan. 1189, 1189,
390 P.3d 879 (2017). Whether the law of the case doctrine bars a party from relitigating
an issue is a legal question over which we have unlimited review. 305 Kan. at 1194.

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Under the law of the case doctrine, "[w]hen a second appeal is brought to this
court in the same case, the first decision is the settled law of the case on all questions
involved in the first appeal, and reconsideration will not normally be given to such
questions." State v. Collier, 263 Kan. 629, Syl. ¶ 3, 952 P.2d 1326 (1998). The doctrine
promotes judicial efficiency and allows litigants a full opportunity to present their
arguments. State v. Parry, 51 Kan. App. 2d 928, 928, 358 P.3d 101 (2015), aff'd 305 Kan.
1189 (2017). We assume, without deciding, that motions to correct an illegal sentence are
subject to the law of the case doctrine. See Conley, 287 Kan. at 698.

The law of the case doctrine would generally apply here. Lewis filed his first
motion to correct illegal sentence under Murdock in 2014. The district court denied his
motion and he appealed. This court found "the Texas definition of habitation fits within
the Kansas definition of dwelling," but it remanded the case for the district court to see if
it could determine from relevant documents whether Lewis' prior conviction actually
involved a burglary of a habitation, as well as whether the 1978 Texas burglary
conviction was comparable to Kansas' burglary statute in effect when Lewis committed
the current crimes. Lewis, 2016 WL 1546133, at *5. Now Lewis claims Texas' definition
of "habitation" is broader than Kansas' definition of a "dwelling," so the two crimes are
not comparable. Thus Lewis is bringing an already litigated claim based on a different
legal theory.

Yet this doctrine "'is not an inexorable command, or a constitutional requirement,
but is, rather, a discretionary policy which expresses the practice of the courts generally
to refuse to reopen a matter already decided, without limiting their power to do so.'"
Collier, 263 Kan. at 631. Courts have limited their discretion by applying three generally
recognized exceptions to this doctrine. These exceptions permit an appellate court to
reconsider an issue it already decided when: (1) a later trial produces substantially
different evidence; (2) a controlling authority has made a contrary decision regarding the
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law applicable to the issues; or (3) the prior decision was clearly erroneous and would
result in manifest injustice. State v. Kleypas, 305 Kan. 224, 245, 382 P.3d 373 (2016).

The second exception applies here. Between Lewis' appeals the Kansas Supreme
Court decided State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). That case held that
for an out-of-state conviction to be comparable to a Kansas crime under K.S.A. 2017
Supp. 21-6811(e)(3), the elements of the out-of-state crime must be identical to or
narrower than the elements of the Kansas crime to which it is being referenced. Wetrich,
307 Kan. 552, Syl. ¶ 3. This construction of the statute is by a controlling authority and is
contrary to the way the court had analyzed the statute in the past. See, e.g., State v.
Williams, 299 Kan. 870, 873, 326 P.3d 1070 (2014) (finding that "comparable offense"
means "the offenses need only be comparable, not identical") (quoting State v.
Vandervort, 276 Kan. 164, 179, 72 P.3d 925 [2003], overruled on other grounds by
Dickey, 301 Kan. 1018 (2015). Because this exception applies, the doctrine of the law of
the case does not prevent our review.

The elements of Lewis' Texas crime of conviction are broader than the elements of
the Kansas crime

We thus reach the merits of Lewis' appeal and determine whether the elements of
his 1978 Texas conviction are comparable to the elements of his Kansas burglary.
Resolution of this claim involves interpretation of the revised Kansas Sentencing
Guidelines Act (KSGA), K.S.A. 2017 Supp. 21-6801 et seq. Interpretation of a
sentencing statute is a question of law over which we exercise de novo review. State v.
Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). Whether the district court properly
classified a defendant's prior conviction for criminal history purposes is a question of law
subject to our unlimited review. Dickey, 301 Kan. 1018, Syl. ¶ 5.


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To classify an out-of-state conviction for criminal history purposes, Kansas courts
generally follow two steps. First, we categorize the prior conviction as a misdemeanor or
a felony by deferring to the convicting jurisdiction's classification of the crime. K.S.A.
2017 Supp. 21-6811(e)(2). The parties do not dispute that Lewis' Texas conviction was
for a felony. See Tex. Penal Code Ann. § 30.02(c) and (d) (West 1974).

Second, we determine whether the prior conviction is a person or nonperson crime
by looking to the comparable crime in Kansas when the defendant committed the current
crime of conviction. K.S.A. 2017 Supp. 21-6811(e)(3). Currently, for an out-of-state
conviction to be comparable to an offense in Kansas, the elements of the out-of-state
crime must be identical to or narrower than the elements of the Kansas crime. Wetrich,
307 Kan. 552, Syl. ¶ 3. If Kansas has no comparable crime we will classify the out-of-
state crime as a nonperson crime. K.S.A. 2017 Supp. 21-6811(e)(3). If Kansas has a
comparable crime, we determine if that crime is a person or nonperson crime and then
classify the out-of-state crime the same way.

Lewis was convicted of burglary of a habitation under the following Texas statute:

"(a) A person commits an offense if, without the effective consent of the owner, he:
(1) enters a habitation, or a building (or any portion of a building) not then open
to the public, with intent to commit a felony or theft; or
(2) remains concealed, with intent to commit a felony or theft, in a building or
habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony or
theft." Tex. Penal Code Ann. § 30.02 (West 1974).

Kansas' burglary statute from the date of Lewis' current crime of conviction states:

"(a) Burglary is knowingly and without authority entering into or remaining within any:
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(1) Building, manufactured home, mobile home, tent or other structure which is
a dwelling, with intent to commit a felony, theft or sexual battery therein;
(2) 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
(3) 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." K.S.A. 21-3715 (Furse 1995).

One obvious distinction between the two statutes is that Texas uses the word
"habitation" while Kansas uses "dwelling." Texas defined "habitation" to mean "a
structure or vehicle that is adapted for the overnight accommodation of persons,"
including "(A) each separately secured or occupied portion of the structure or vehicle;
and (B) each structure appurtenant to or connected with the structure or vehicle." Tex.
Penal Code Ann. § 30.01(1) (West 1974). But Kansas defined "dwelling" in narrower
terms as "a building or portion therefore, 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. 21-
3110(7).

Texas cases illustrate the difference between these two controlling terms. A
defendant may be convicted in Texas for burglary of a victim's garage—a structure
appurtenant to or connected with victim's house. A garage falls within the definition of a
"habitation," as contained in its statute defining the offense of burglary of a habitation.
Shakesnider v. State, 477 S.W.3d 920, 922-33 (Tex. App. 2015). Even an unattached
garage is a structure appurtenant to a residence is therefore within the statutory definition
of "habitation." Jones v. State, 690 S.W.2d 318, 319 (Tex. App. 1985). But Kansas'
burglary of a dwelling statute has no such "structure appurtenant to or connected with"
language. Instead, the Kansas statute considers burglaries of buildings other than
"dwellings," such as unattached garages, to be nonperson crimes. K.S.A. 21-3715.
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Nor does Texas law require that a structure be enclosed to be considered a
habitation. Tex. Penal Code Ann. § 30.01. See White v. State, 630 S.W.2d 340, 342 (Tex.
App. 1982) (stating "before a structure may be considered a building, it must be enclosed,
but there is no such requirement for a habitation"). Kansas, though, requires the space be
enclosed to be considered a dwelling. K.S.A. 2005 Supp. 21-3110(7).

For these reasons, the elements of Texas' crime of burglary are broader than the
elements of Kansas' crime of burglary, so the two statutes are not comparable as that term
is defined in Wetrich.

Wetrich was not a change in the law

Finally, the State argues that Wetrich amounts to a change in the law that cannot
be the basis for relief, relying on K.S.A. 2017 Supp. 22-3504(3). Resolving this issue
involves interpretation of a statute, a question of law over which we have unlimited
review. Collins, 303 Kan. at 473-74.

A 2017 amendment to K.S.A. 2017 Supp. 22-3504(3) states that "[a] sentence is
not an 'illegal sentence' because of a change in the law that occurs after the sentence is
pronounced." The State argues that Wetrich's holding requiring the identical-or-narrower
rule was a change in the law that obviously occurred after Lewis' sentence was
pronounced, so Wetrich cannot be the basis for finding that Lewis' sentence is illegal. But
we agree with panels of this court which have concluded that Wetrich merely clarified
existing law, rather than changed it. See State v. Smith, 56 Kan. App. 2d 343, 430 P.3d 58
(2018), petition for rev. filed September 26, 2018; State v. Jones, No. 117,811, 2018 WL
4655628 (Kan. App. 2018) (unpublished opinion).

"Simply put: the KSGA and its reference to the term 'comparable offenses' has not
changed . . . . The only thing that may have changed is our Supreme Court's interpretation
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of the KSGA. But a judicial construction of a statute is an authoritative statement of what
the statute meant before as well as after the decision. See Rivers, 511 U.S. at 312-13. As
previously stated, the Wetrich court found that the identical-or-narrower test was the
intent of the Legislature when it passed the KSGA based on the legislative history of the
Act and the purposes and objectives of the sentencing guidelines. 307 Kan. at 561-62."
Smith, 56 Kan. App. 2d at 354.

Those panels reached their determination that Wetrich interpreted existing law,
rather than changed the law, by considering legislative history, the Kansas Supreme
Court's language describing its holding, and its treatment of pre-Wetrich cases with
inconsistent holdings. The Smith panel noted that the Wetrich court found that the
identical-or-narrower test was the intent of the legislature when it passed the KSGA
based on the legislative history of the act and the purposes and objectives of the
sentencing guidelines. Smith, 56 Kan. App. 2d at 354. It also found that Wetrich applied
the rule set out in Dickey, and our court has held that Dickey was not a change in the law
but was an application of Apprendi. Smith, 56 Kan. App. 2d at 354. The Jones panel
noted that the Kansas Supreme Court did not overrule its prior opinions, further
indicating that it did not intend to make new law by issuing its opinion in Wetrich, and
that in cases following Wetrich, the Kansas Supreme Court consistently described the
decision as merely having "construed the meaning of 'comparable offense.'" State v.
Jones, No. 117,808, 2018 WL 4656409, at *10 (Kan. App. 2018) (unpublished opinion)
(citing State v. Moore, 307 Kan. 599, 602, 412 P.3d 965 [2018]; State v. Buell, 307 Kan.
604, 607, 412 P.3d 1004 [2018]). We agree that "Wetrich's approach to the issue thus
appears to be tailored to reach the conclusion that it was not changing the law but was
merely construing a long-standing term in a preexisting statute pursuant to its original
legislative intent." Jones, 2018 WL 4656409, at *10.

Accordingly, the identical-or-narrower rule adopted in Wetrich did not create new
law but clarified existing statutory language. The 2017 amendment to K.S.A. 2017 Supp.
22-3504(3) thus does not affect Lewis' ability to seek relief.
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Conclusion

We vacate the sentences and remand for resentencing with directions to count
Lewis' 1978 Texas burglary conviction as a nonperson felony.