Opinion
No. 110,001.
2014-10-10
STATE of Kansas, Appellee, v. Joseph Lee JONES, Appellant.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge.Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
POWELL, J.
Joseph Lee Jones appeals his sentence arguing: (1) The district court erred by classifying his nine 1990 juvenile burglary adjudications as person felonies when calculating his criminal history score; (2) the use of his prior juvenile adjudications to determine his criminal history score violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution because he was not afforded the right to a jury trial during his juvenile cases; and (3) the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it increased his sentence based on his criminal history. While we agree that Jones' nine 1990 juvenile burglary adjudications cannot be classified as person felonies in determining his criminal history score because the factual predicate that they be committed in a dwelling was never proved to a jury beyond a reasonable doubt and therefore must reverse in part and remand for resentencing, we affirm the district court in all other respects.
Facts
Pursuant to a plea agreement, Jones pled no contest to attempted vehicular burglary, a severity level 10 nonperson felony. A presentence investigation (PSI) report was prepared and listed Jones' criminal history category as A. Jones' criminal history included 11 person felonies consisting of nine juvenile adjudications and two adult convictions, 12 nonperson felonies, 2 person misdemeanors, and 19 nonperson misdemeanors. Prior to sentencing, Jones filed written and oral objections to his criminal history score. He renewed his objection to his criminal history score at the sentencing hearing, arguing the 1990 juvenile burglary adjudications did not specify whether the locations burglarized were dwellings.
In its response to Jones' objection to his criminal history score, the State provided the district court with various documents related to Jones' prior criminal cases in order to establish his criminal history category. It submitted the journal entries from Jones' 1993 and 1998 convictions for burglary and theft. Both journal entries listed Jones' criminal history classification as A. It also submitted the PSI from Jones' 2007 convictions for forgery and theft, which also listed Jones' criminal history classification as A. The State then submitted the complaint, journal entry, and related police reports from Jones' 1990 juvenile burglary and theft adjudications. In the complaint, each burglary count listed the address of the specific building burglarized but merely labeled each one a building without specifying if each one was a dwelling. The police reports indicated each building listed in the complaint as burglarized was a dwelling. In his juvenile cases, Jones pled guilty by stipulating to the complaint.
The district court reviewed the 1990 case documents and found that neither the complaint nor the journal entry specified that the burglarized buildings were dwellings. However, it found the buildings were residential dwellings based on the information in the police reports. As a result, the court overruled Jones' objection, found his criminal history category to be A, and sentenced him to the presumptive standard sentence of 12 months in prison.
Jones timely appeals.
Did the District Court Err by Classifying Jones' 1990 Burglary Adjudications as Person Felonies?
Jones claims the district court erred by treating his nine 1990 juvenile burglary adjudications as person felonies. He argues the district court violated Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013); Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); and Apprendi v. New Jersey, 530 U.S. 466, by engaging in judicial factfinding which it then used to increase his sentence. Jones also relies upon a recent opinion from another panel of our court, State v. Dickey, 50 Kan.App.2d 468, 329 P.3d 1230 (June 27, 2014).
The classification of prior convictions or adjudications as person or nonperson crimes, as well as the interpretation of a sentencing statute, present questions of law in which our review is unlimited. See State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011); State v. Barajas, 43 Kan.App.2d 639, 642, 230 P.3d 784 (2010).
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, 544 U.S. at 25 (“[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.”).
Jones specifically relies on the recently issued opinion of Descamps, 133 S.Ct. 2276, where the United States Supreme Court held that a defendant's prior conviction for burglary under California law could not be counted as a predicate offense for burglary under the federal Armed Career Criminal Act (ACCA), which increases the sentences of defendants who have three prior convictions for violent felonies. Unlike the ACCA “general burglary” definition, the California burglary statute did not require unlawful entry in the way that most burglary laws do; it provided that a “person who enters” certain locations “with intent to commit grand or petit larceny or any felony is guilty of burglary.” California Penal Code Ann. § 459 (West 2010). The Descamps Court stated that the sentencing court would have had to look at Descamps' prior burglaries in order to determine whether he did break and enter or merely shoplifted in order to count the prior burglaries for ACCA purposes. The Court held that such an inquiry raised Sixth Amendment concerns because it required the sentencing court to invade the jury's factfinding territory. See 133 S.Ct. at 2281–87.
This exact issue and argument was recently addressed by another panel of this court in Dickey, 50 Kan.App.2d 468. The Dickey opinion provides a very detailed analysis of United States Supreme Court case law ( Apprendi, Shepard, and Descamps ) as it relates to the comparison of state crime definitions to crime definitions under the ACCA. 50 Kan.App.2d at 481–88.
Distilled down for our purposes, we note that the federal courts have adopted two approaches for comparing state crime definitions to ACCA crime definitions—the categorical approach and the modified categorical approach. Dickey, 50 Kan.App.2d at 483–84 (citing Descamps, 133 S.Ct. at 2281–84, 2287). In the categorical approach, the sentencing court does not look at the defendant's actual conduct but simply whether the elements of the crime of conviction match the elements of the corresponding crime under the ACCA. See Descamps, 133 S.Ct. at 2281, 2283; Dickey, 50 Kan.App.2d at 483.
The modified categorical approach “applies when the statute defining the prior offense elements [in state law] is broader than the corresponding generic offense [defined in the ACCA] but the jury was actually instructed that it had to find all the elements of the predicate offense in order to convict the defendant. Descamps, 133 S.Ct. at 2281, 2283–84.” Dickey, 50 Kan.App.2d at 484. In such a case, the sentencing court is permitted to look beyond the elements in the statutes and examine the charging documents and jury instructions to determine whether the prior conviction under a state statute constitutes an offense under the ACCA. 50 Kan.App.2d at 483 (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 [1990] ). The analysis in the modified categorical approach is still focused on the elements of the crime and not the facts of the particular case, but the approach is used “to determine which statutory phrase the defendant was necessarily convicted under and not to determine the facts of the underlying crime. After pinpointing the statutory phrase, courts should then use those documents to analyze whether that phrase matches the corresponding element of the generic offense.” Dickey, 50 Kan.App.2d at 487 (citing Descamps, 133 S.Ct. at 2285).
The Descamps Court clarified that the modified categorical approach may only be utilized when the prior conviction involves a “divisible statute,” meaning a statute which comprises multiple, alternative versions of the crime. 133 S.Ct. at 2281–82, 2284–85; see Dickey, 50 Kan.App.2d at 486–87. If the statute is not divisible, then the sentencing court is prohibited from applying the modified categorical approach and consulting limited documents from the prior case. Descamps, 133 S.Ct. at 2281–83; Dickey, 50 Kan.App.2d at 486–87. However, even if the statute is divisible, the modified categorical approach may not apply
“because, in some cases, none of the alternative elements will match any elements of the corresponding generic crime. Post–Descamps, a case involving a prior statute of conviction for burglary containing alternative elements, none of which match any element of a generic statute, is virtually indistinguishable from a case involving a prior statute of conviction for burglary containing a single and indivisible set of elements; thus, the modified approach has no role to play.” Dickey, 50 Kan.App.2d. at 487 (citing Descamps, 133 S.Ct. at 2286).
At the time of Jones' 1990 juvenile adjudications, burglaries were not classified as person or nonperson. Burglary was defined as
“knowingly and without authority entering into or remaining within any: (1) Building, manufactured home, mobile home, tent or other structure, with intent to commit a felony or theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.
“Burglary as described in subsection (1) is a class D felony. Burglary as described in subsection (2) is a class E felony.” K.S.A.1990 Supp. 21–3715.
In 1993, the legislature adopted the Kansas Sentencing Guidelines Act (KSGA), which now classifies crimes as either person or nonperson crimes in a defendant's criminal history score. The legislature also reclassified burglaries of dwellings as person felonies, while other burglaries were nonperson felonies. See K.S.A. 21–3715 (Furse 1995); L.1993, ch. 291, sec. 74. The revised statute, found in the current 2007 K.S.A. bound volume in effect when Jones committed his current crime, defined burglary in relevant part as
“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; [or]
“(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.” K.S.A. 21–3715(a), (b).
The sentencing statute in effect when Jones committed this current offense on March 5, 2011, provided that a burglary adjudication occurring prior to July 1, 1993, should be scored for criminal history purposes: (1) as a prior person felony if the prior adjudication would be classified under the current statute as the burglary of a dwelling; and (2) as a prior nonperson felony if the prior adjudication would be classified under the current statute as the burglary of a nondwelling. K.S.A. 21–4711(d). The statute also provided that the State had the burden to establish by a preponderance of the evidence the facts necessary for the court to determine how the prior adjudication would be classified under the current statute. K.S.A. 21–4711(d).
In this case, under the framework laid out in Shepard and Descamps, the 1990 burglary statute is the “prior statute” and the K.S.A. 21–3715 burglary statute is the “generic statute.” The K.S.A. 21–3715 burglary statute requires the element of “a dwelling” for a person felony. However, none of the alternative elements listed in the 1990 burglary statute required the State to prove the burglary occurred in “a dwelling.” Cf. K.S.A.1990 Supp. 21–3715; K.S.A. 21–3715. Therefore, the district court was prohibited from engaging in the modified categorical approach which would have allowed the court to look beyond the juvenile adjudications and examine relevant documents in the record containing evidence of whether the burglaries were committed in a dwelling.
Prohibited from using the modified categorical approach, the district court was required to utilize the categorical approach which did not permit it to evaluate the defendant's actual conduct leading to the adjudications. Applying the categorical approach, we note the elements in the 1990 burglary statute match the elements listed in K.S.A. 21–3715(b), a nonperson felony, not the more specific elements in K.S.A. 21–3715(a), a person felony. Therefore, the district court erred by classifying Jones' nine 1990 juvenile burglary adjudications as person felonies when calculating his criminal history score. See K.S.A. 21–4709.
Did the District Court Err by Using Jones' Juvenile Adjudications to Increase His Criminal History?
Jones also argues the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution because he was not afforded the right to a jury trial in his juvenile case, prohibiting the use of his juvenile convictions in calculating his criminal history score. Jones acknowledges his argument has been previously rejected by the Kansas Supreme Court in State v. Fischer, 288 Kan. 470, 473, 203 P.3d 1269 (2009).
In Fischer, the defendant argued that State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003), needed revisiting because of the court's subsequent decision in In re L.M., 286 Kan. 460, 186 P.3d 164 (2008). In Hitt, our Supreme Court held that juvenile convictions could be used to calculate criminal history scores without violating Apprendi. 273 Kan. at 236. Subsequently, In re L.M. held that juveniles have a constitutional right to a jury trial, but the court noted that “[t]his right will apply only to cases pending on direct review or not yet final on the date of filing this opinion.” 286 Kan. at 473–74. The Fischer court further clarified the In re L.M. holding by noting:
“[W]e find that the holding in Hitt remains valid for all juvenile adjudications that were final on June 20, 2008, the date In re L.M. was filed. Because Fischer's juvenile adjudications were final, they were ‘prior convictions' under the Apprendi exception, and the district court properly included them in [Fischer's] criminal history scoring.” 288 Kan. at 475.
Likewise, because Jones' juvenile adjudications were final before June 20, 2008, we must reject his argument.
Did the District Court Err When It Increased Jones' Sentence Based on His Criminal History?
Jones' final argument is that the use of his criminal history to calculate his guidelines sentence was unconstitutional since his prior convictions and juvenile adjudications were not proved in this case to a jury. Our Supreme Court has rejected this argument See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002).
The judgment of the district court is affirmed in part, reversed in part, and remanded for recalculation of Jones' criminal history and resentencing.