State v. Sodders

1

NOT DESIGNATED FOR PUBLICATION

No. 115,366

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JEFFREY ALAN SODDERS,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed February 3,
2017. Affirmed.

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

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., POWELL, J., and HEBERT, S.J.

POWELL, J.: Jeffrey Alan Sodders appeals from his sentence for possession of
methamphetamine, arguing that the district court erred in classifying his 2008 Missouri
second-degree burglary conviction as a person offense. Sodders claims that by doing so,
the district court violated his constitutional rights as articulated in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United
States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). We disagree and affirm.

2

FACTUAL AND PROCEDURAL BACKGROUND

In September 2015, pursuant to a plea agreement, Sodders pled guilty to
possession of methamphetamine, a severity level 5 nonperson drug felony. According to
the presentence investigation report (PSI), Sodders' criminal history included a 2008
person felony conviction for second-degree burglary in Missouri as the result of a guilty
plea. The petition to enter plea of guilty signed by Sodders and filed with the Missouri
court stated: "On November 6, 2007, in Cass County, I knowingly entered unlawfully
into a house owned by Wendy Hale [and] appropriated goods in excess of $500 in value
without the consent of the owner, Wendy Hale."

Sodders objected to the classification of his Missouri burglary as a person felony,
arguing there was no comparable Kansas offense because the Missouri burglary
conviction did not have a dwelling requirement whereas the Kansas statute did. After
reviewing Sodders' petition to plead guilty in the Missouri burglary case, the district court
overruled this objection, set Sodders' criminal history score at C, and sentenced him to an
underlying sentence of 30 months' imprisonment but placed him on probation for 12
months.

Sodders timely appeals.

DID THE DISTRICT COURT ERR IN CLASSIFYING SODDERS' PRIOR
MISSOURI CONVICTION AS A PERSON OFFENSE?

Sodders' sole contention on appeal is that the district court erred in classifying his
2008 Missouri burglary conviction as a person offense. Specifically, Sodders argues that
the district court violated his rights under the Sixth and Fourteenth Amendments to the
United States Constitution as articulated by Apprendi and Descamps by making a factual
determination that his Missouri burglary was committed in a dwelling.
3

The question presented on appeal involves an interpretation of three statutes: (1)
K.S.A. 2015 Supp. 21-6811, part of the revised Kansas Sentencing Guidelines Act
(KSGA); (2) K.S.A. 2014 Supp. 21-5807(a), the Kansas burglary statute; and (3) Mo.
Rev. Stat. § 569.170 (1979), the Missouri second-degree burglary statute under which
Sodders was convicted. "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." State v. Keel, 302
Kan. 560, 571, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016) .

The KSGA provides that criminal sentences are based on two controlling factors:
the criminal history of the defendant and the severity level of the crime committed, with
person crimes having a greater impact. See K.S.A. 2015 Supp. 21-6804(c); State v.
Vandervort, 276 Kan. 164, 178, 72 P.3d 925 (2003), overruled in part on other grounds
by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). A defendant's criminal history
score is calculated by tabulating the offender's prior convictions to generate a criminal
history score, with A being the highest and I being the lowest. See K.S.A. 2015 Supp. 21-
6803(d); K.S.A. 2015 Supp. 21-6804(a). Prior convictions or adjudications are classified
as either misdemeanors or felonies, person or nonperson, with some exceptions. See
K.S.A. 2015 Supp. 21-6810; K.S.A. 2015 Supp. 21-6811. The more extensive the
defendant's criminal history and/or the greater the severity level of the crime, the
lengthier the guideline sentence. See K.S.A. 2015 Supp. 21-6804(a).

We look to K.S.A. 2015 Supp. 21-6811 to determine if a burglary conviction was
properly classified. K.S.A. 2015 Supp. 21-6811(e) governs the classification of prior out-
of-state convictions even though it does not specifically address prior burglary
convictions and adjudications. State v. Buell, 52 Kan. App. 2d 818, 823-24, 377 P.3d
1174, rev. granted 305 Kan. ___ (December 13, 2016); see also State v. O'Connor, 299
Kan. 819, 822, 326 P.3d 1064 (2014) (using K.S.A. 21-4711[e], the prior codification of
K.S.A. 2015 Supp. 21-6811[e], to classify a prior out-of-state burglary adjudication);
4

State v. Williams, 299 Kan. 870, 873, 326 P.3d 1070 (2014) (same). K.S.A. 2015 Supp.
21-6811(d), which governs the classification of prior burglary convictions yet does not
address prior out-of-state convictions, tells us that "the distinction between person and
nonperson burglaries under K.S.A. 2014 Supp. 21-6811(d) hinges on whether the
offender burglarized a dwelling." State v. Cordell, 302 Kan. 531, 534, 354 P.3d 1202
(2015).

The relevant portion of K.S.A. 2015 Supp. 21-6811(e) provides:

"(1) Out-of-state convictions and juvenile adjudications shall be used in
classifying the offender's criminal history.
"(2) An out-of-state crime will be classified as either a felony or a misdemeanor
according to the convicting jurisdiction:
(A) If a crime is a felony in another state, it will be counted as a felony in
Kansas.
. . . .
"(3) The state of Kansas shall classify the crime as person or nonperson. In
designating a crime as person or nonperson, comparable offenses under the Kansas
criminal code in effect on the date the current crime of conviction was committed shall be
referred to. If the state of Kansas does not have a comparable offense in effect on the date
the current crime of conviction was committed, the out-of-state conviction shall be
classified as a nonperson crime.
. . . .
"(5) The facts required to classify out-of-state adult convictions and juvenile
adjudications shall be established by the state by a preponderance of the evidence."

1. Sodders' Missouri conviction is a felony.

Because Sodders' prior Missouri conviction must be used to calculate his criminal
history score, see K.S.A. 2015 Supp. 21-6811(e)(1), we first examine how Missouri
classified his burglary conviction to determine whether that conviction was properly
5

classified as a misdemeanor or a felony. Both Sodders and the State agree that the district
court correctly classified his prior Missouri burglary conviction as a felony as that is how
the crime was classified by Missouri. See K.S.A. 2015 Supp. 21-6811(e)(2); Mo. Rev.
Stat. § 569.170 (1979).

2. Sodders' Missouri conviction is a person crime.

We must next decide whether Sodders' Missouri conviction should be classified as
a person or nonperson crime by referring to the comparable Kansas offenses in effect at
the time the current crime of conviction was committed. See K.S.A. 2015 Supp. 21-
6811(e)(3). "The essential question is whether the offenses are similar in nature and cover
similar conduct." State v. Martinez, 50 Kan. App. 2d 1244, 1249, 338 P.3d 1236 (2014).
We look for the Kansas offense that is the "closest approximation" or most "comparable,"
but the elements of each out-of-state crime do not need to be identical to the elements of
a Kansas crime for them to be comparable. Vandervort, 276 Kan. at 179. Offenses may
be comparable "even when the out-of-state statute encompassed some acts not necessarily
encompassed by the Kansas statute." State v. Riolo, 50 Kan. App. 2d 351, 356-57, 330
P.3d 1120 (2014), rev. denied 302 Kan. 1019 (2015).

Sodders was convicted under Mo. Rev. Stat. § 569.170 (1979), which states: "A
person commits the crime of burglary in the second degree when he knowingly enters
unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the
purpose of committing a crime therein." (Emphasis added.)

Mo. Rev. Stat. § 569.010(2) (1979) defines "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
6

"(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."

K.S.A. 2014 Supp. 21-5807(a), the burglary statute in effect at the time Sodders
committed his current crime of conviction, states:

"(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
(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of
persons or property, with intent to commit a felony, theft or sexually motivated crime
therein.
. . . .
"(c)(1) Burglary as defined in:
(A) Subsection (a)(1) is a severity level 7, person felony, except as provided in
subsection (c)(2);
(B) subsection (a)(2) is a severity level 7, nonperson felony, except as provided
in subsection (c)(2);
(C) subsection (a)(3) is a severity level 9, nonperson felony, except as provided
in subsection (c)(2)."

K.S.A. 2014 Supp. 21-5111(k) defines a dwelling 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."

The Kansas burglary statute and the Missouri second-degree burglary statute are
broadly comparable. However, because categorizing Sodders' Missouri burglary as a
7

person felony enhances his criminal history score—and therefore his sentence—and
because the difference between person and nonperson felony burglary is whether the
defendant burglarized a dwelling, we must determine whether Sodders committed his
Missouri burglary in a dwelling. See K.S.A. 2014 Supp. 21-5807(a); Cordell, 302 Kan. at
534.

Sodders argues that under Apprendi and Descamps the district court erred in going
beyond the fact of the existence of his Missouri conviction and made a factual finding
that his Missouri burglary conviction had been committed in a dwelling without requiring
the State to prove such a fact beyond a reasonable doubt.

"Under Apprendi, '[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.' 530 U.S. at 490. The policy
rationale behind Apprendi is that a court violates the United States Constitution if it
invades the jury's territory by finding facts at sentencing. See Shepard v. United States,
544 U.S. 13, 25, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (plurality opinion) ('[T]he
Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the
power of the State, and they guarantee a jury's finding of any disputed fact essential to
increase the ceiling of a potential sentence.'). A narrow exception exists for judicial
factfinding regarding the existence of a prior conviction because of the procedural
safeguards which attach to such a fact. Apprendi, 530 U.S. at 488. As a result, in the
typical case under our sentencing guidelines, tabulating a defendant's prior convictions to
determine the criminal history score, which usually has the effect of increasing a
defendant's sentence, does not violate a defendant's jury trial rights. See State v. Ivory,
273 Kan. 44, 46-48, 41 P.3d 781 (2002)." Dickey, 301 Kan. at 1036.

Our Supreme Court has explicitly adopted the Descamps analysis in Dickey, 301
Kan. at 1036-39. Under Descamps, in order to classify a prior conviction without
violating Apprendi,

8

"a sentencing court must use one of two approaches—the categorical approach or the
modified categorical approach. [Citation omitted.] A sentencing court applies the
categorical approach when the statute forming the basis of the defendant's prior
conviction contains a single set of elements constituting the crime. A sentencing court
simply compares 'the elements of the statute forming the basis of the defendant's
conviction with the elements of the "generic" crime.' 133 S. Ct. at 2281. . . .
"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. Descamps, 133 S. Ct. at 2281-82, 2284-86. . . . [W]ithout running
afoul of Apprendi, a sentencing court is permitted 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 the basis of the defendant's prior conviction.' [Descamps,]
133 S. Ct. at 2284. Such 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. Johnson v. United States, 559 U.S. 133, 144,
130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010).
". . . [T]he modified categorical approach is prohibited if the statute is not
divisible, i.e., contains one set of elements defining the crime. 133 S. Ct. at 2281-83."
(Emphasis added.) Dickey, 301 Kan. at 1037-38.

The key phrase in K.S.A. 2014 Supp. 21-5111(k) defining a dwelling is whether
the structure "is used or intended for use as a human habitation, home or residence." By
comparison, the definition of "inhabitable structure" includes a structure "[w]here any
person lives" or "[w]hich is used for overnight accommodation of persons." Mo. Rev.
Stat. § 569.010(2)(a), (c) (1979). While Missouri's definition of "inhabitable structure" is
broader than Kansas' definition of "dwelling," the Missouri second-degree burglary
statute is divisible because it provides that a person may commit a burglary by knowingly
and unlawfully entering or remaining "in a building or inhabitable structure for the
purpose of committing a crime therein." (Emphasis added.) Mo. Rev. Stat. § 569.170
(1979). Because the Missouri statute is divisible, we may use the modified categorical
approach to determine whether to classify Sodders' Missouri burglary conviction as a
9

person or nonperson felony. See State v. Copper, No. 113,902, 2016 WL 4414612, at *8
(Kan. App. 2016) (unpublished opinion); State v. Wetrich, No. 112,361, 2016 WL
197808, at *5 (Kan. App. 2016) (unpublished opinion), rev. granted 305 Kan. ___
(December 13, 2016); State v. Hill, No. 112,545, 2015 WL 8590700, at *6 (Kan. App.
2015) (unpublished opinion), rev. granted 305 Kan. ___ (December 13, 2016); State v.
Farley, No. 109,655, 2014 WL 5345895, at *7 (Kan. App. 2014) (unpublished opinion),
rev. denied 302 Kan. 1014 (2015).

Sodders argues that his Missouri burglary conviction cannot be classified as a
person felony and cites to our court's opinion in Wetrich for support. The Wetrich panel
held that although the Missouri burglary statute was divisible, "none of the alternative
elements in Mo. Rev. Stat. § 569.170 (1988) match the essential 'dwelling' element in
K.S.A. 21-3715(a)," resulting in the district court engaging in impermissible factfinding
to find that Wetrich's Missouri burglary was committed in a dwelling. 2016 WL 197808,
at *5. We respectfully disagree with the panel's conclusion in Wetrich. Under Mo. Rev.
Stat. § 569.010(2)(a), (c) (1979), the term "inhabitable structure" includes a structure
"[w]here any person lives" or "[w]hich is used for overnight accommodation of persons,"
and both elements are comparable to the "dwelling" elements contained in K.S.A. 2014
Supp. 21-5111(k). Sodders also relies on Mathis v. United States, 579 U.S.___, 136 S. Ct.
2243, 2257, 195 L. Ed. 2d 604 (2016), where the Court held that "[b]ecause the elements
of Iowa's burglary law are broader than those of generic burglary" under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), the defendant's convictions under that
law could not be used to enhance his sentence. However, we consider Mathis
inapplicable because its analysis was mandated by the ACCA, not the Sixth Amendment.

As the district court discovered, an examination of Sodders' PSI or the elements of
Missouri's second-degree burglary statute do not reveal whether the burglary was
committed in a dwelling. Using the modified categorical approach, the district court was
permitted to look at Sodders' plea agreement to determine if the Missouri burglary
10

conviction was for a burglary of a dwelling. See Dickey, 301 Kan. at 1038 (court may
review "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"). By doing so, the district court found that Sodders' Missouri burglary was, in
fact, committed in a dwelling. We agree.

Sodders' charging document specifically alleged that Sodders had committed his
burglary in an inhabitable structure, not a building. Moreover, Sodders' petition to enter
plea of guilty, which we consider part of Sodders' plea agreement, stated he "knowingly
entered unlawfully into a house owned by Wendy Hale." In this context, we find the term
"house" falls within the definition of "dwelling" contained K.S.A. 2014 Supp. 21-
5111(k). Accordingly, the district court correctly classified Sodders' 2008 Missouri
burglary conviction as a person felony.

Affirmed.