Kai Tate Mann won in State v. Fahnert, No. 115,058 (Kan. App. April 28, 2017), obtaining a new sentencing hearing in a Johnson County attempted theft prosecution. The primary issue was whether a burglary conviction from Missouri should be classified as a person or nonperson felony in the instant case. The COA applied Dickey (blogged about here) to hold that the sentencing court could not go beyond simply comparing the statutory elements of the out-of-state conviction with the Kansas burglary statute. Applying this more restrictive test, the COA concluded that the Missouri burglary conviction could not be scored as a person felony:
Under Dickey, Fahnert's prior Missouri burglary conviction should have been classified as a nonperson felony because the burglary statute in Missouri did not include a dwelling element and the definition of inhabitable structure as that term was used in the statute included vehicles and structures used or intended to be used for purposes other than a human habitation, home, or residence.
As a result, Mr. Fahnert's case was remanded with directions to classify the Missouri conviction as a nonperson felony.
[Update: the state did not file a PR and the mandate issued on June 7, 2017.]
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