State v. Prince

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NOT DESIGNATED FOR PUBLICATION

No. 117,133

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SKIILAR T. PRINCE,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed March 23, 2018.
Affirmed in part, sentence vacated, and case remanded with directions.

Carol Longenecker Schmidt, 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 ARNOLD-BURGER, C.J., STANDRIDGE and BRUNS, JJ.

PER CURIAM: When determining whether a prior out-of-state conviction is a
person or nonperson felony for sentencing purposes, a court examines whether Kansas
has a comparable offense and how the comparable offense is classified. Such an analysis
is not as easy as it seems and often involves a somewhat counterintuitive analysis to
avoid some important constitutional minefields. In this case Skiilar T. Prince has a prior
conviction in Missouri for burglary in the first degree that he contends was improperly
classified as a person felony in arriving at his Kansas criminal history score. We agree for
the reasons set forth below, vacate his sentence, and remand for resentencing.
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Prince also argues that his constitutional rights were violated when the State was
not required to prove his prior convictions beyond a reasonable doubt to the jury. This
issue has already been addressed by the Kansas Supreme Court contrary to Prince's
position here. We are bound to follow Kansas Supreme Court precedent, so his second
claim fails.

FACTUAL AND PROCEDURAL HISTORY

In November 2016, Prince pled guilty to one count of possession of
methamphetamine, a severity level 5 drug felony. At sentencing, Prince's criminal history
score was B, based in part on a 2004 Missouri conviction for first-degree burglary. The
presentence investigation (PSI) report stated that Prince's 2004 Missouri conviction was
for "Burglary first degree—habitation." Prince was sentenced and filed a timely notice of
appeal.

ANALYSIS

The district court erred in finding that Prince's prior Missouri burglary should be
scored as a person felony under the Kansas Sentencing Guidelines Act.

In this case Prince argues that the district court erred in scoring his prior Missouri
burglary as a person felony. He asks that we vacate his sentence and remand the case for
resentencing using the correct criminal history category.

Our standard of review is de novo.

This case involves the interpretation of multiple statutes. "Whether a prior
conviction should be classified as a person or nonperson offense involves the
interpretation of the KSGA [Kansas Sentencing Guidelines Act]. Interpretation of a
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statute is a question of law over which appellate courts have unlimited review." State v.
Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016).

Prince's conviction of first-degree burglary in Missouri was not sufficiently
comparable to burglary of a dwelling or aggravated burglary of a dwelling in Kansas to
be scored as a person felony.

Under the KSGA a defendant's sentence is based on two factors: the severity of
the current offense and the criminal history score of the defendant. See K.S.A. 2017
Supp. 21-6804(a). The criminal history score is calculated by examining the defendant's
prior convictions. Each prior conviction is classified as either a misdemeanor or a felony
and as a person or nonperson offense. K.S.A. 2017 Supp. 21-6810. Having more person
convictions results in a higher criminal history score, which in turn leads to longer prison
sentences. See K.S.A. 2017 Supp. 21-6804(a); K.S.A. 2017 Supp. 21-6809. Classifying
an out-of-state conviction can prove challenging.

An out-of-state conviction is first classified as a felony or a misdemeanor based on
the law of the convicting jurisdiction. K.S.A. 2017 Supp. 21-6811(e). If the crime is
considered a felony in the other state it will count as a felony in Kansas. K.S.A. 2017
Supp. 21-6811(e). Here there is no dispute that Prince's Missouri first-degree burglary
conviction must be counted as felony, because it is a felony in Missouri. Mo. Rev. Stat.
§ 569.160 (2000).

Next, the out-of-state conviction is classified as either a person or nonperson
offense by looking to the "comparable offense" under Kansas law in effect on the date the
current crime of conviction was committed. K.S.A. 2017 Supp. 21-6811(e). The issue in
dispute is whether Prince's Missouri first-degree burglary conviction should be counted
as a person felony or a nonperson felony in Kansas. And how it is counted makes a
difference in his sentence. With one less person felony in his criminal history, Prince
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would fall under a criminal history category C, instead of the criminal history category B,
for which he was sentenced. Such a sentence would no longer require prison, but would
allow for probation and could be as low as 28 months or as high as 32 months. As it is,
Prince received a 32-month prison sentence and his motion for a dispositional departure
to probation was denied. K.S.A. 2014 Supp. 21-5706(a), (c)(1); K.S.A. 2014 Supp. 21-
6805. So we next turn to how we determine whether a prior conviction is to be counted as
a person felony or a nonperson felony.

The court makes the determination of whether a crime is a person crime or
nonperson crime by looking to see whether Kansas had a comparable offense at the time
the defendant committed the current crime of conviction. K.S.A. 2017 Supp. 21-6811(e);
Keel, 302 Kan. at 590. If there is no comparable offense in Kansas at the time the
defendant committed the current crime of conviction, the out-of-state conviction is
classified as a nonperson offense. K.S.A. 2017 Supp. 21-6811(e). If Kansas does have a
comparable offense at the time the defendant committed the current crime of conviction,
the court must refer to that comparable offense in Kansas in deciding whether to classify
the prior out-of-state conviction as a person or nonperson offense. K.S.A. 2017 Supp. 21-
6811(e).So we must determine whether Kansas has a comparable offense to first-degree
burglary in Missouri. We have received recent guidance from the Kansas Supreme Court
regarding the method we use to determine comparability.

"For an out-of-state conviction to be comparable to an offense under the Kansas
criminal code, . . . , the elements of the out-of-state crime cannot be broader than the
elements of the Kansas crime. In other words, 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." State v. Wetrich, 307 Kan. ___, Syl. ¶ 3 (No. 112,361, filed March 9, 2018).

In 2004, the time of Prince's Missouri conviction, Missouri defined burglary in the
first degree as:

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"1. A person commits the crime of burglary in the first degree if he knowingly
enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure
for the purpose of committing a crime therein, and when in effecting entry or while in the
building or inhabitable structure or in immediate flight therefrom, he or another
participant in the crime:

(1) Is armed with explosives or a deadly weapon or;
(2) Causes or threatens immediate physical injury to any person who is not a
participant in the crime; or
(3) There is present in the structure another person who is not a participant in the
crime." Mo. Rev. Stat. § 569.160 (2000).

Missouri defined inhabitable structure as:

"[A] ship, trailer, sleeping car, airplane, or other vehicle or structure:
"(a) Where any person lives or carries on business or other calling; or
"(b) Where people assemble for purposes of business, government, education,
religion, entertainment, or public transportation; or
"(c) Which is used for overnight accommodation of persons. Any such vehicle or
structure is 'inhabitable' regardless of whether a person is actually present." Mo. Rev.
Stat. § 569.010(2) (2000).

Both parties agree that the Kansas statute with which the Missouri statute should be
compared is the Kansas burglary statute. At the time of his conviction in the present case,
Kansas defined burglary as:

"(a) Burglary is, without authority, entering into or remaining within any:
(1) Dwelling, with intent to commit a felony, theft or sexually motivated crime
therein;
(2) building, manufactured home, mobile home, tent or other structure which is
not a dwelling, with intent to commit a felony, theft or sexually motivated crime therein;
or
. . . . .
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"(c)(1) Burglary as defined in:
(A) Subsection (a)(1) is a severity level 7, person felony . . . ;
(B) subsection (a)(2) is a severity level 7, nonperson felony." K.S.A. 2014 Supp.
21-5807.

Dwelling is defined, for purposes of the Kansas burglary statute, 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). So in Kansas, the
fact that the building is a dwelling is what makes it a person rather than a nonperson
felony.

It is clear that the Missouri crime of burglary in the first-degree is broader than the
Kansas crime of burglary. In order to be convicted of felony burglary in Kansas, a person
must enter a dwelling with the intent to commit a felony, theft, or sexual battery therein.
The Missouri statute, however, prohibits the entry into a building or inhabitable structure
to commit any crime. In addition, in Kansas a dwelling is defined "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). In contrast, the
statute in Missouri is much broader, in that the person must enter a building or
inhabitable structure. Moreover, the term inhabitable structure includes "such non-
dwelling places as a business, government office, school, church, roller-skating rink, or
bus station." Wetrich, slip op. at 15. In Wetrich, our Supreme Court held that as it relates
to identical language in the Missouri second-degree burglary statute "the breadth of the
element [of building or inhabitable structure] in Missouri defeats comparability with the
Kansas crime of burglary of a dwelling." Slip op. at 15. The same is true here. So, the two
operative statutes are not comparable.

Accordingly, we must vacate Prince's sentence and remand the case for
resentencing using the correct criminal history category.
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Prince's rights were not violated by the court's failure to submit his prior convictions to a
jury to be established beyond a reasonable doubt.

Prince argues that his constitutional rights were violated because the State was not
required to prove his prior convictions to a jury beyond a reasonable doubt. Prince
acknowledges that this argument was previously rejected by the Kansas Supreme Court.
See State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). Prince includes this argument to
preserve the issue for federal review.

This court is duty bound to follow Kansas Supreme Court precedent, absent some
indication the Supreme Court is departing from its previous position. State v. Meyer, 51
Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). There is no indication that the Kansas
Supreme Court is departing from its ruling in Ivory.

Affirmed in part, sentence vacated, and case remanded for resentencing based on
the proper criminal history category.