State v. Smith

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NOT DESIGNATED FOR PUBLICATION

No. 113,297

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHAWN D. SMITH,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed April 8, 2016.
Sentence vacated and case remanded with directions.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Lance J. Gillett, assistant district attorney, Marc
Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., MCANANY and POWELL, JJ.

Per Curiam: Shawn D. Smith appeals the district court's denial of his motion to
correct illegal sentence pursuant to K.S.A. 22-3504. After completing his direct appeal,
Smith filed a motion to correct illegal sentence, alleging that his sentence was illegal due
to the improper classification of a prior South Carolina burglary conviction as a person
felony for criminal history purposes. The district court denied the motion. For the first
time on appeal, Smith argues that his South Carolina burglary conviction should have
been scored as a nonperson felony for criminal history purposes based on our Supreme
Court's holding in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). The State
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argues that Smith is procedurally barred from seeking relief under Dickey. In the
alternative, the State argues that the classification of the South Carolina burglary as a
person felony does not violate Smith's constitutional rights as applied by our Supreme
Court in Dickey. For the reasons stated herein, we conclude that Smith is not procedurally
barred from raising his claim under Dickey, but the case must be remanded to the district
court for further proceedings to determine if Smith is entitled to relief.

In November 2006, a jury found Smith guilty of aggravated kidnapping. The
presentence investigation (PSI) report calculated Smith's criminal history score as "C,"
due in part to a 1993 South Carolina conviction identified as "Burglary of Dwelling 2nd
Degree" and classified as an adult person felony. Although Smith objected to his PSI
report on other grounds, he did not object to the classification of the South Carolina
burglary conviction. On December 19, 2006, the district court sentenced Smith to 272
months' imprisonment with 36 months' postrelease supervision.

Smith timely pursued a direct appeal. Relevant to his criminal history, Smith
argued only that the district court violated his Sixth and Fourteenth Amendment rights
under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
by using his prior convictions to increase his sentence without requiring the State to
prove them beyond a reasonable doubt to a jury. State v. Smith, No. 97,951, 2008 WL
4416029, *7-8 (Kan. App. 2008) (unpublished opinion), rev. denied 288 Kan. 835
(2009). This court affirmed Smith's conviction and sentence, and our Supreme Court
denied Smith's petition for review.

On June 9, 2014, Smith filed a pro se motion to correct illegal sentence pursuant to
K.S.A. 22-3504, arguing that the classification of his 1993 South Carolina burglary
conviction as a person felony for criminal history purposes violated our Supreme Court's
holding in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme
Court order September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251
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(2015), cert. denied 136 S. Ct. 865 (2016). The Murdock court held that when calculating
a defendant's criminal history that includes out-of-state convictions committed prior to
the enactment of the Kansas Sentencing Guidelines Act (KSGA), the out-of-state
convictions must be classified as nonperson offenses. 299 Kan. 312, Syl. ¶ 5. In the
motion, Smith cited K.S.A. 22-3504(1) for the proposition that a court may correct an
illegal sentence at any time. On November 13, 2014, Smith's court-appointed attorney
filed a motion to correct illegal sentence, also claiming that under Murdock, Smith's
criminal history was inaccurate and his sentence was illegal.

The State filed a response to the motions, arguing first that res judicata barred the
application of Murdock "in any case where a defendant either challenged or failed to
challenge criminal history on direct appeal." Next, the State asserted that Murdock should
not be applied retroactively to cases already final because (1) Murdock created a new rule
of law, (2) retroactive application would not further the underlying principle upon which
Murdock was based, and (3) retroactive application would cause the State to suffer
substantial hardship. On December 16, 2014, the district court filed a motion minutes
sheet denying the motions, stating only: "Court adopts the State's response as its findings
of fact and conclusions of law on final cases[.]" Smith timely appealed.

While Smith's appeal was pending, our Supreme Court overruled Murdock in
Keel. See 302 Kan. 560, Syl. ¶ 9. Smith filed a reply brief, arguing for the first time that
he was entitled to relief based on our Supreme Court's decision in Dickey, which also was
issued while Smith's appeal was pending. Specifically, Smith argued that the
classification of his South Carolina burglary as a person offense for criminal history
purposes necessarily required judicial factfinding in violation of his constitutional rights
as described in Apprendi and Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276,
186 L. Ed. 2d 438 (2013), and as applied by our Supreme Court in Dickey. This court
ordered supplemental briefing on whether Smith is entitled to relief under Dickey.

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In this opinion, we need not address Smith's original claim that the district court
erred in denying his motion to correct illegal sentence based on our Supreme Court's
holding in Murdock, as Murdock has been overruled by Keel, 302 Kan. 560, Syl. ¶ 9.
Likewise, we need not address Smith's argument in his initial brief that the retroactive
application of 2015 House Bill 2053 would violate the Ex Post Facto Clause of the
United States Constitution because the district court did not deny Smith's motion to
correct illegal sentence based on House Bill 2053. Instead, we address only Smith's
remaining claim that he is entitled to relief from his sentence based on Dickey.

IS SMITH'S MOTION PROCEDURALLY BARRED?

Smith has filed a motion to correct illegal sentence pursuant to K.S.A. 22-3504.
K.S.A. 22-3504(1) provides that "[t]he court may correct an illegal sentence at any time."
Whether a sentence is illegal is a question of law over which an appellate court has
unlimited review. State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015).

"'[A]n "illegal sentence" under K.S.A. 22-3504 [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.]" 301 Kan. at 551.

The threshold issue in this appeal is whether Dickey is applicable in cases such as
Smith's where the direct appeal is final and the procedural vehicle used is a motion to
correct illegal sentence pursuant to K.S.A. 22-3504. The State argues that Smith is
procedurally barred from bringing his claim for two reasons. First, the State maintains
that the doctrine of res judicata bars Smith's claim. Specifically, the State argues that
Smith could have challenged the classification of his South Carolina burglary conviction
as a person felony in his direct appeal and he has waived the issue because he failed to do
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so. Second, the State argues that the holding in Dickey should not be retroactively applied
to Smith's case which was final before Dickey was decided.

Res judicata

The State first argues that the doctrine of res judicata bars Smith's claim. "The
applicability of res judicata is a question of law over which this court has unlimited
review." State v. Robertson, 298 Kan. 342, 344, 312 P.3d 361 (2013).

"The doctrine of res judicata provides that 'where an appeal is taken from the
sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata
as to all issues actually raised, and those issues that could have been presented, but were
not presented, are deemed waived.' [Citations omitted.]" State v. Kingsley, 299 Kan. 896,
901, 326 P.3d 1083 (2014).

"The essence of the doctrine of res judicata is that issues 'once finally determined
. . . cannot afterwards be litigated.'" Kingsley, 299 Kan. at 901. Four elements are
required to apply the doctrine of res judicata to procedurally bar a claim: (1) the same
claim; (2) the same parties; (3) the claim at issue was or could have been raised in the
previous appeal; and (4) there was a final judgment on the merits. 299 Kan. at 901. The
State argues that Smith could have raised his current challenge to his sentence in his
direct appeal and, by failing to do so, he has waived it. Smith has not directly addressed
the State's res judicata argument. Nevertheless, when closely examined, the State's
argument is not persuasive.

As the State notes, Kansas appellate courts previously have applied the doctrine of
res judicata to motions to correct illegal sentences. See State v. Conley, 287 Kan. 696,
698, 197 P.3d 837 (2008) ("Res judicata applies to motions to correct illegal sentence
filed pursuant to K.S.A. 22-3504."). The State points to State v. Johnson, 269 Kan. 594,
602, 7 P.3d 294 (2000), in which our Supreme Court reiterated that a motion to correct
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illegal sentence "may not be used as a vehicle to breathe new life into appellate issues
previously abandoned or adversely determined." The State argues that under Johnson,
Smith has abandoned his claim by not pursuing it in his direct appeal.

Johnson is distinguishable because the issue that was barred by res judicata in that
case was whether the State acted at sentencing in a way that was inconsistent with its plea
bargain obligations. See 269 Kan. at 601. As the Johnson court noted, even if that error
occurred, it would not render a sentence illegal under K.S.A. 22-3504(1). 269 Kan. at
601. Here, if Smith's criminal history score was miscalculated based on an incorrect
classification of his South Carolina burglary conviction, his sentence is illegal. See State
v. Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015) (stating the claim of misclassification
of prior convictions as person offenses "necessarily raise[s] a claim that the current
sentence is illegal because it does not comply with the applicable statutory provision
regarding the term of punishment authorized").

The State provides no citation to a case in which a Kansas appellate court has
applied the doctrine of res judicata or waiver to bar a claim when that claim, if true,
would render a sentence illegal and the claim has not been previously addressed on its
merits. The cases in which Kansas appellate courts have applied res judicata to motions
to correct an illegal sentence involve claims that previously were resolved on the merits
or claims that would not render a sentence illegal, even if true. See, e.g., State v. Martin,
294 Kan. 638, 640-41, 279 P.3d 704 (2012) (barring through res judicata claim of illegal
sentence that was raised and denied at least six times previously), cert. denied 134 S. Ct.
114 (2013); Conley, 287 Kan. at 698 (A motion to correct illegal sentence "may not be
used to breathe new life into an appellate issue previously adversely determined."
[Emphasis added.]); Johnson, 269 Kan. at 601.

Moreover, interpreting the doctrine of res judicata to bar challenges of an illegal
sentence merely because they could have been brought in a direct appeal would
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undermine the clear statutory directive that courts may correct an illegal sentence at any
time under K.S.A. 22-3504(1). As this court recently explained in an unpublished
decision, res judicata generally applies to all issues that were or could have been raised in
an appeal from a sentence or conviction. Angelo v. State, No. 109,660, 2014 WL
1096834, at *3 (Kan. App. 2014) (unpublished opinion), rev. denied 301 Kan. ___
(January 8, 2015). But the Angelo court also stated: "However, K.S.A. 22-3504(1)
provides an exception to this rule. If a sentence is illegal, then the court may correct an
illegal sentence at any time despite a defendant's failure to raise the issue on direct
appeal." 2014 WL 1096834, at *3. This court continued: "[If a] sentence is illegal, res
judicata does not apply and we have jurisdiction over the issue." 2014 WL 1096834, at
*4.

Our Supreme Court took a similar position in State v. Neal, 292 Kan. 625, 631,
258 P.3d 365 (2011). The Neal court noted that although the defendant had not raised in
his direct appeal the issue of aggregation of prior uncounseled misdemeanor convictions
for criminal history purposes, "the motion to correct illegal sentence is not subject to our
general rule that a defendant must raise all available issues on direct appeal." 292 Kan. at
631. Based on the analysis in Neal and Angelo and because a broad application of res
judicata would contravene the clear directive of K.S.A. 22-3504(1), we decline to apply
the doctrine of res judicata or waiver to bar Smith's claim of an illegal sentence. See State
v. Martin, 52 Kan. App. 2d ___, Syl. ¶¶ 4-5, ___ P.3d ___ (No. 113,189, filed March 4,
2016).

Retroactivity

Next, the State argues that the holding in Dickey should not be "retroactively
applied" to cases, like Smith's, that became final prior to our Supreme Court's opinion in
Dickey. The State points out that Dickey involved a challenge to criminal history on
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direct appeal. Smith, however, brought his claim in a motion to correct illegal sentence
filed after his sentence had become final.

"Generally, when an appellate court decision changes the law, that change acts
prospectively and applies only to all cases, state or federal, that are pending on direct
review or not yet final on the date of the appellate court decision." State v. Mitchell, 297
Kan. 118, Syl. ¶ 3, 298 P.3d 349 (2013). The general rule prohibiting retroactive
application of an appellate court decision stems from our Supreme Court's adoption of the
United States Supreme Court's rules that in only two instances should new constitutional
rules be applied retroactively to cases on collateral review. As explained by our Supreme
Court in Drach v. Bruce, 281 Kan. 1058, 1072, 136 P.3d 390 (2006), cert. denied 549
U.S. 1278 (2007):

"'Under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334
(1989), a new rule of constitutional criminal procedure is not applied retroactively on
collateral review unless (1) it places certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to prosecute, or (2) it is a
watershed rule requiring the observance of those procedures that are implicit in the
concept of ordered liberty.' [Citation omitted.]"

Despite the general rule prohibiting retroactive application of an appellate court
decision, we are not convinced that Smith is procedurally barred from bringing his claim
under Dickey. Again, we find guidance in Neal. In that case, the defendant filed a motion
to correct illegal sentence under K.S.A. 22-3504(1) and raised a constitutional challenge
to his sentence, arguing that prior uncounseled misdemeanor convictions could not be
aggregated and included in calculating his criminal history score. The defendant had
completed his direct appeal and his sentence was final. The Supreme Court led off the
opinion by discussing whether the defendant's motion was procedurally barred, i.e.,
whether K.S.A. 22-3504(1) was a proper vehicle for his claim. The Supreme Court noted
that it has defined an illegal sentence as one imposed by a court without jurisdiction, a
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sentence which does not conform to the statutory provision, either in character or in 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. 292 Kan. at 630. The Supreme Court
determined that if either the crime severity level or the criminal history score is in error, a
party can challenge a sentence as being illegal. See 292 Kan. at 631. The Supreme Court
went on to conclude:

"Here, Neal's challenge to his criminal history score is 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.

Generally, a defendant may not file a motion to correct an illegal sentence based
on constitutional challenges to his or her sentence. See Moncla, 301 Kan. at 553-54. But
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
provision in the term of the punishment authorized and, consequently, is an illegal
sentence. See Luarks, 302 Kan. at 975; Neal, 292 Kan. at 631. Under K.S.A. 22-3504(1),
Kansas courts have jurisdiction to correct an illegal sentence at any time. State v. Kelly,
298 Kan. 965, Syl. ¶ 5, 318 P.3d 987 (2014).

Based on Neal, retroactivity analysis is not applicable when it is determined by a
court that a constitutional error affects the defendant's criminal history score resulting in
an illegal sentence. We conclude that a claim under Dickey may be brought in a motion to
correct illegal sentence even when the defendant's direct appeal has been completed and
the defendant's sentence is final. See Martin, 52 Kan. App. 2d ___, Syl. ¶ 8.

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Although we could end our analysis here, we also point out that the United States
Supreme Court's decision in Apprendi was in place before Smith's sentencing in 2006. As
a result, the rationale in Apprendi should apply to the calculation of Smith's criminal
history score. In Dickey, our Supreme Court explicitly held: "[C]lassifying Dickey's prior
burglary adjudication as a person felony violates his constitutional rights as described
under Descamps and Apprendi." 301 Kan. at 1021. In its analysis of those constitutional
rights, the court began by examining Apprendi, indicating that Apprendi was the basis for
the holding in Dickey. See 301 Kan. at 1036-37. Descamps provided a means by which to
determine whether certain sentencing determinations violated Apprendi, and Dickey
applied that framework to Kansas criminal history determinations. 301 Kan. at 1036-40.

Because both Descamps and Dickey are applications of Apprendi and Smith's
current Kansas case arose after Apprendi was decided, applying Dickey would not require
retroactive application of the caselaw identifying the constitutional rights at stake. See
State v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001) ("[T]he new constitutional
sentencing rule established by Apprendi must be applied here and in all cases pending on
direct appeal or which are not yet final or which arose after June 26, 2000."). Therefore,
even if this court were to consider Smith's challenge under the general principle that new
constitutional rules cannot be retroactively applied to cases on collateral review, that
principle would not bar Smith's claim.

IS SMITH ENTITLED TO RELIEF UNDER DICKEY?

We now turn to the merits of Smith's claim that his South Carolina burglary
conviction should have been scored as a nonperson felony for criminal history purposes
based on our Supreme Court's holding in Dickey. Smith contends that classifying his
South Carolina burglary conviction as a person felony involved impermissible judicial
factfinding regarding (1) whether his prior conviction was burglary of a dwelling and (2)
his intent when he entered the building or structure to commit the burglary. Smith argues
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that this court should vacate his sentence and remand with directions to the district court
to resentence Smith and classify the South Carolina burglary as a nonperson offense for
criminal history purposes. The State responds that this court should remand to the district
court for further proceedings to determine whether the South Carolina burglary should be
classified as a person or nonperson offense.

"Whether a prior conviction should be classified as a person or nonperson offense
involves the interpretation of the KSGA. Interpretation of a statute is a question of law
over which appellate courts have unlimited review. [Citations omitted.]" Keel, 302 Kan.
at 571.

Initially, we note that although Smith did not challenge the person classification of
his South Carolina burglary conviction in the district court, he may do so for the first time
on appeal under Dickey. See 301 Kan. at 1034. Likewise, our Supreme Court in Dickey
determined that a defendant is not barred from challenging the classification of a prior
conviction as a person felony in a motion to correct illegal sentence merely because the
defendant did not object to the classification at sentencing. 301 Kan. at 1032.

"Under the analysis in Descamps, which has been adopted in Kansas in Dickey, a court
may use one of two approaches to determine whether a prior conviction may be used for
sentencing purposes. The categorical approach is appropriate 'when the statute forming
the basis of the defendant's prior conviction contains a single set of elements constituting
the crime,' and consists of comparing the elements of the two crimes; if the elements of
the prior crime of conviction are the same as or narrower than the later offense, the prior
crime may be used for sentencing purposes. See Dickey, 301 Kan. at 1037. The second
approach, the modified categorical approach, 'applies when the statute forming the basis
of the prior conviction is a "divisible statute," i.e., a statute which includes multiple,
alternative versions of the crime and at least one of the versions matches the elements of
the generic offense.' 301 Kan. at 1037." State v. Mullens, 51 Kan. App. 2d 1114, 1118,
360 P.3d 1107 (2015).

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The relevant Kansas burglary statute is the one in effect at the time Smith's current
crime of conviction was committed—in July 2006. See Keel, 302 Kan. at 590. Thus,
Smith's argument on appeal requires interpretation of multiple statutes: (1) K.S.A. 21-
4711; (2) K.S.A. 21-3715 (Torrence 2007), the Kansas burglary statute in effect at the
time Smith committed his current crime of conviction; (3) K.S.A. 21-3110 (Torrence
2007), the Kansas statute defining "dwelling" at the time Smith committed his current
crime of conviction; (4) S.C. Code Annot. § 16-11-312 (2003), the South Carolina
burglary statute in effect at the time Smith committed his South Carolina burglary; and
(5) S.C. Code Annot. § 16-11-10 (2003) and § 16-11-310 (2003), the South Carolina
statutes defining "dwelling" at the time Smith committed his South Carolina burglary.

In 1993, the South Carolina burglary statute stated, in relevant part:

"(A) A person is guilty of burglary in the second degree if the person enters a
dwelling without consent and with intent to commit a crime therein.
"(B) A person is guilty of burglary in the second degree if the person enters a
building without consent and with intent to commit a crime therein, and either:
(1) When, in effecting entry or while in the building or in immediate flight
therefrom, he or another participant in the crime:
(a) Is armed with a deadly weapon or explosive; or
(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument; or
(d) Displays what is or appears to be a knife, pistol, revolver, rifle, shotgun,
machine gun, or other firearm; or
(2) The burglary is committed by a person with a prior record of two or more
convictions for burglary or housebreaking or a combination of both; or
(3) The entering or remaining occurs in the nighttime." S.C. Code Annot. § 16-
11-312 (2003).

K.S.A. 21-3715 (Torrence 2007), the Kansas burglary statute in effect when Smith
committed his current crime of conviction, stated:
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"Burglary is knowingly and without authority entering into or remaining within
any:
(a) Building, manufactured home, mobile home, tent or other structure which is a
dwelling, with intent to commit a felony, theft or sexual battery therein;
(b) 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
(c) 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. 21-4711(d) deals particularly with burglary and states:

"Prior burglary adult convictions and juvenile adjudications will be scored for
criminal history purposes as follows:
"(1) As a prior person felony if the prior conviction or adjudication was classified
as a burglary defined in subsection (a) of K.S.A. 21-3715 and amendments thereto.
"(2) As a prior nonperson felony if the prior conviction or adjudication was
classified as a burglary as defined in subsection (b) or (c) of K.S.A. 21-3715 and
amendments thereto.
"The facts required to classify prior burglary adult convictions and juvenile
adjudications must be established by the state by a preponderance of the evidence."

Smith argues that under Apprendi and Descamps, the district court erred in going
beyond the fact of the South Carolina burglary conviction and making factual findings
about the South Carolina burglary without requiring the State to prove those facts. Smith
points to two specific implied factual findings: (1) whether he burglarized a "dwelling"
as defined in Kansas, and (2) his intent when he entered the building or structure to
commit the burglary.

Dwelling

The PSI report in the current case defined Smith's South Carolina conviction as
"Burglary of Dwelling 2nd Degree." S.C. Code Annot. § 16-11-310 (2003) defines
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dwelling in the context of burglary as "its definition found in § 16-11-10 and also . . . the
living quarters of a building which is used or normally used for sleeping, living, or
lodging by a person." S.C. Code Annot. § 16-11-10 (2003) states:

"With respect to the crimes of burglary and arson and to all criminal offenses
which are constituted or aggravated by being committed in a dwelling house, any house,
outhouse, apartment, building, erection, shed or box in which there sleeps a proprietor,
tenant, watchman, clerk, laborer or person who lodges there with a view to the protection
of property shall be deemed a dwelling house, and of such a dwelling house or of any
other swelling house all houses, outhouses, buildings, sheds and erections which are
within two hundred yards of it and are appurtenant to it or to the same establishment of
which it is an appurtenance shall be deemed parcels."

On the other hand, at the time Smith committed his current crime of conviction,
Kansas defined "dwelling" in the context of burglary 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. 21-3110(7) (Torrence 2007). The South Carolina
burglary statute and specifically its understanding of the term "dwelling" is a divisible
statute, and one of the permutations of elements under which Smith could have
committed burglary of a dwelling in South Carolina matches the elements of Kansas'
burglary of a dwelling. Thus, under Dickey and Descamps, the modified categorical
approach is appropriate to determine whether the South Carolina conviction should be
scored as a person or nonperson offense for criminal history purposes. See Mullens, 51
Kan. App. 2d at 1118.

Smith contends that because the South Carolina definition of dwelling is broader
than Kansas' definition, Apprendi prohibits any additional factfinding about the South
Carolina offense. But Dickey and Descamps clearly allow a sentencing court, without
running afoul of Apprendi, "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
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the basis of the defendant's prior conviction.' [Citation omitted.]" Dickey, 301 Kan. at
1037-38. Permissible 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. [Citation omitted.]" 301 Kan. at 1038.

Here, the district court did not examine any such documents prior to making the
implied finding that Smith's South Carolina conviction fits within the parameters of a
Kansas burglary of a dwelling, a finding necessary to classify the South Carolina burglary
as a person offense. See State v. Cordell, 302 Kan. 531, 534, 354 P.3d 1202 (2015)
("[T]he distinction between person and nonperson burglaries under K.S.A. 2014 Supp.
6811[d] hinges on whether the offender burglarized a dwelling."). Thus, we must remand
for further proceedings for the district court to determine whether Smith's South Carolina
burglary conviction was of a dwelling as defined by the applicable Kansas statutes and
whether it should be classified as a person or nonperson offense for criminal history
purposes. See Mullens, 51 Kan. App. 2d at 1119-20.

Intent to enter

Smith also argues that the district court made impermissible findings of fact
involving his intent when he entered the dwelling or structure to commit the burglary. In
South Carolina, second-degree burglary requires entering a building or dwelling "with
intent to commit a crime therein." See S.C. Code Annot. § 16-11-312 (2003). In contrast,
the Kansas burglary statute requires the "intent to commit a felony, theft or sexual
battery." See K.S.A. 21-3715 (Torrence 2007). As with the "dwelling" analysis, the South
Carolina statute clearly allows for broader intent than the Kansas statute, but at least one
set of elements that would satisfy the requirements for South Carolina would also satisfy
the requirements for Kansas. Therefore, the modified categorical approach is appropriate
under Dickey and Descamps.

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As with the question of whether the dwelling in South Carolina satisfied the
dwelling requirement in Kansas, the district court erred in making the implied factual
finding that the intent element in the South Carolina burglary satisfied the intent element
under Kansas law. On remand, the district court may examine the permissible documents
identified in Dickey in order to make that determination.

In summary, we vacate Smith's sentence and remand for further proceedings for
the district court to determine whether his South Carolina burglary conviction should be
classified as a person or nonperson offense for criminal history purposes. The district
court may examine the identified permissible documents in order to determine the nature
of the offense. If the district court cannot determine the basis of the South Carolina
burglary conviction or if it determines that it involved (1) entry of a structure not
considered a dwelling in Kansas or (2) an intent to commit a crime other than a felony,
theft, or sexual battery, then the South Carolina burglary must be classified as a
nonperson offense. If, however, the district court determines that the South Carolina
burglary conviction falls within the parameters of the crime of burglary of a dwelling
under applicable Kansas law, the South Carolina burglary should be classified as a person
offense. See Mullens, 51 Kan. App. 2d at 1119-20.

Vacated and remanded with directions.