Comparable out-of-state prior conviction must be identical or narrower than Kansas offense

Korey A. Kaul won in State v. Wetrich, No. 112,361 (Kan. March 9, 2018), obtaining a new sentencing hearing in a Johnson County kidnapping prosecution. The primary issue (in this case and several companion cases decided the same day), was the classification of a prior conviction as a person felony--in this particular case, a prior Missouri conviction for burglary. Classification of prior convictions as person or nonperson offenses can have a big impact on the presumptive sentencing range in a case. In Kansas, residential burglary (burglary of a dwelling) is a person felony; non-residential burglary (burglary of everything but a dwelling) is a nonperson felony.

In Wetrich, the district court held that the prior Missouri burglary conviction was "comparable" to Kansas' residential burglary because it involved burglary of an "inhabitable structure."

The Kansas Supreme Court reviewed its recent case law in Dickey (blogged about here), Dickey had involved classification of pre-Guidelines Kansas burglary convictions. But the KSC held that the same underlying law was applicable in Wetrich:

But in order to avoid the constitutional prohibition against enhancing a sentence through judicial fact-finding announced in Apprendi, Dickey held that the dwelling requirement must have been an element of the prior offense, rather than a fact found by the sentencing court in the current case. Because Dickey had a prior juvenile adjudication for burglary in 1992, when the definition of the offense did not include an element requiring the burglarized structure to be a dwelling, the prior offense had to be scored as a nonperson felony. Dickey also relied on the methodology employed by the Supreme Court in [Descamps v. United States, 570 U.S. 254 (2013)] to constitutionally construe a federal statute.

The KSC also noted that the United States Supreme Court had recently considered an Iowa state burglary conviction as it related to federal sentencing:

[Mathis v. United States, 136 S. Ct. 2243 (2016)] held that, because the elements of Iowa's burglary law were broader than those of generic burglary, Mathis' prior Iowa burglary convictions could not be used to enhance his sentence under the federal Armed Career Criminal Act (ACCA). In the process, Mathis opined that the strict elements focus was not only required by the language of the federal statute, but also because of "serious Sixth Amendment concerns" and fairness to defendants.

Although the KSC did not decide this case on constitutional grounds, it did so with this constitutional background. The KSC held that the use of the word "comparable" in the Kansas statute governing classification of out-of-state convictions was somewhat ambiguous and observed that the Kansas Legislature wanted to reduce disparate treatment of offenders in Kansas. Synthesizing these ideas in light of the constitutional background, the KSC held that the Missouri burglary statute was not identical or narrower that the Kansas offense of residential burglary:

The comparison reveals two elements that are broader in the Missouri statute: the specific intent required and the structure involved. The Kansas crime to which the Missouri conviction is being compared—burglary of a dwelling—requires that the entry into or remaining within be done with the specific intent to commit a felony, theft, or sexual battery therein. In contrast, the specific intent required for the Missouri second degree burglary is that the burglar's purpose is to commit any crime. Consequently, the mere existence of the Missouri conviction does not establish the mental state element of the Kansas reference offense because the Missouri mental state element is broader. The purpose for the unlawful entry in Missouri could have been to commit misdemeanor property damage which would not be a burglary in Kansas. 

And, of course, the critical element of the Kansas crime is that the structure involved must be a dwelling, defined 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." In the Missouri crime, in contrast, the element of the charged crime was that Wetrich unlawfully entered or remained within an inhabitable structure, which is broadly defined to include, in addition to a structure where any person lives, such non-dwelling places as a business, government office, school, church, rollerskating rink, or bus station. Again, the breadth of the element in Missouri defeats comparability with the Kansas crime of burglary of a dwelling. And, as suggested above, we agree with Mathis' lesson on the distinction between elements and means; the modified categorical approach is not employed to discover which alternative means or facts were used in Missouri to establish the crime's inhabitable-structure element. Again, the Missouri prior conviction fails our comparability test.

Utilizing this statutory approach, the KSC held that the Missouri burglary was not "comparable" to Kansas' residential burglary and therefore ordered resentencing.