The COA had held that judicial factfinding that increases a penalty violated Apprendi and Descamps. The KSC agreed:
Though the burglary statute forming the basis for Dickey's prior juvenile adjudication was comprised of multiple, alternative versions of the crime, none included an element requiring that the structure burglarized be a dwelling, i.e., "used or intended for use as a human habitation, home or residence." K.S.A. 2014 Supp. 21-5111(k). Consequently, employing either a categorical approach or a modified categorical approach to determine whether Dickey's prior burglary adjudication involved a dwelling would be constitutionally prohibited under Descamps and Apprendi.Dickey is also important from a procedural standpoint, holding that the error resulted in an illegal sentence, meaning that it could be raised for the first time on appeal and was not waived by failure to contest the presentence investigation.
[Update: the state filed a motion for rehearing on June 10, 2015.]
[Further update: the KSC denied the state's motion for rehearing and the mandate issued on July 2, 2015.]