STATE v. SAUCEDO (2018)

MEMORANDUM OPINION

At the time of Gerardo Saucedo's sentencing for two drug-related convictions, his criminal history included a 2003 conviction in Washington for a residential burglary. The district court scored this conviction as a person felony for criminal history purposes. This resulted in an increase in Saucedo's sentencing range of 196/186/176 months. The court imposed a durational departure sentence of 146 months in prison. On appeal, Saucedo argues that the district court erred in classifying his prior Washington conviction as a person felony because the Washington statute was broader than the Kansas burglary statute. But because the statutes are comparable, and because Saucedo does not argue that his Washington burglary did not involve a dwelling, we find no error in the sentencing court's action and affirm the classification of his prior Washington conviction as a person felony.

Saucedo's prior Washington felony conviction was for a residential burglary under Wash. Rev. Code Ann. § 9A.52.025(1). On appeal he argues that the district court erred in classifying this prior conviction as a person felony. He claims that because two elements of the Washington conviction are broader than the elements of the comparable Kansas crime, the district court engaged in improper judicial fact-finding in determining that his Washington crime was a person crime, thereby violating the rules set forth in Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L.Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed. 2d 435 (2000).

Resolving this issue involves the interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2016 Supp. 21-6801 et seq., a matter of law over which we have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). Likewise, whether a prior conviction was properly classified as a person or nonperson crime for criminal history purposes is a question of law subject to unlimited review. State v. Dickey, 301 Kan. 1018, Syl. ¶ 5, 350 P.3d 1054 (2015).

To classify an out-of-state conviction for criminal history purposes, Kansas courts must follow two steps. First, the court must categorize the prior conviction as a misdemeanor or a felony. To do so, the court defers to the convicting jurisdiction's classification to determine whether the out-of-state conviction was a felony or misdemeanor crime. K.S.A. 2016 Supp. 21-6811(e). Here, there is no dispute that Saucedo's Washington conviction was for a felony.

Second, the court must determine whether the prior conviction is a person or nonperson offense. The court makes this determination by looking for a comparable offense in Kansas at the time the defendant committed the current crime of conviction. K.S.A. 2016 Supp. 21-6811(e)(3); State v. Keel, 302 Kan. 560, 590, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). The statutes do not need to be identical to be comparable. State v. Rodriguez, 305 Kan. 1139, 1151, 390 P.3d 903 (2017); State v. Williams, 299 Kan. 870, 875, 326 P.3d 1070 (2014) (quoting State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 [2003] ). Instead, the offenses need to be similar in nature and must cover similar conduct. State v. Martinez, 50 Kan. App. 2d 1244, 1249, 338 P.3d 1236 (2014). If there is no comparable Kansas crime, the court must classify the prior conviction as a nonperson crime. K.S.A. 2016 Supp. 21-6811(e)(3). But if there is a comparable offense and Kansas classifies it as a person crime, the out-of-state conviction should also be classified as a person crime. K.S.A. 2016 Supp. 21-6811(e)(3).

If the comparable Kansas offense criminalizes some conduct as a person offense and other conduct as a nonperson offense, the court must further analyze the conviction to determine how to classify it. State v. Fahnert, 54 Kan. App. 2d 45, 49, 396 P.3d 723 (2017). The Kansas burglary statute is one of those offenses. K.S.A. 2016 Supp. 21-5807.

Finally, K.S.A. 2016 Supp. 21-6811(d) explains that when the prior conviction is a burglary, whether it should be classified as a person or nonperson offense hinges on whether the place burglarized was a dwelling. If so, the district court classifies the prior conviction as a person offense. If not, the district could classifies it as a nonperson offense. State v. Cordell, 302 Kan. 531, 534, 354 P.3d 1202 (2015).

Both the United States Supreme Court and the Kansas Supreme Court have addressed the constitutional implications of classifying prior convictions for criminal history purposes. In Apprendi, the Court found a constitutional violation when a sentencing court goes beyond the fact that a defendant has a prior out-of-state conviction and the statutory elements of that conviction to make factual findings without a jury that increase the penalty for the defendant's current crime of conviction. 530 U.S. at 490.

In Descamps the Court delineated two methods of classifying prior convictions that avoid Apprendi violations: the categorical approach and the modified-categorical approach. The categorical approach applies when the prior conviction statute has a single set of elements with no alternatives. Using this approach, the court looks only to the actual elements of the prior conviction statute. Descamps, 570 U.S. at 278. The modified categorical approach applies when the statute sets out one or more of the elements in the alternative, e.g., burglary involving entry into a building or an automobile. 570 U.S. at 257. Under this approach, the court is permitted to look at certain documents to determine which of the alternatives provided the factual basis for the prior conviction. 570 U.S. at 261.

In Descamps, the Court used the Armed Career Criminal Act (ACCA) to increase the defendant's sentence. In doing so, the Court held that the prior conviction qualified as an ACCA predicate offense only if the statute's elements are the same as, or narrower than, those of the generic offense. 570 U.S. at 257.

In Dickey, Kansas adopted the approaches described in Descamps. But Kansas did not adopt the identical-or-narrower rule from Descamps. Dickey, 301 Kan. at 1036-40; see State v. Moore, 52 Kan. App. 2d 799, 814, 377 P.3d 1162 (2016) (The Kansas Supreme Court “didn't adopt the identical-or-narrower rule—doing so would have required overruling past Kansas caselaw holding that the comparable Kansas offense doesn't have to be identical to the prior-conviction statute.”), rev. granted 305 Kan. 1256 (2016).

Turning to Saucedo's argument, he was convicted in Washington of residential burglary pursuant to Wash. Rev. Code Ann. § 9A.52.025, which provided:

“(1) A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.

“(2) Residential burglary is a class B felony. In establishing sentencing guidelines and disposition standards, residential burglary is to be considered a more serious offense than second degree burglary.”

The Kansas residential burglary statute, K.S.A. 2013 Supp. 21-5807, provides:

“(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); and

(2) subsection (a)(1), (a)(2) or (a)(3) with the intent to commit the theft of a firearm is a severity level 5, nonperson felony.

(3) Aggravated burglary is a severity level 5, person felony.”

Saucedo argues that the Washington statute is broader than the Kansas statute for two reasons.

First, “a person commits residential burglary in Washington by going into a qualifying place regardless of whether or not he/she had authority” and “[t]he Washington burglary statute lacks the element that the offender enter or remain without authority.” The Washington statute requires that the offender “enters or remains unlawfully,” which is defined in Wash. Rev. Code Ann. § 9A.52.010 as entering or remaining “when he or she is not then licensed, invited, or otherwise privileged to so enter or remain.” The Kansas statute uses the phrase “without authority.” Saucedo claims this difference in phrasing makes the Washington statute broader than the Kansas statute, rendering them incomparable.

This argument is not persuasive. As noted earlier, the two statutes need not be identical in order to be comparable; they need only be similar in nature and cover essentially the same conduct. Here, the Washington and Kansas statutes are similar in nature and cover similar conduct. The term in the Washington statute, “enters or remains unlawfully,” is essentially the equivalent to Kansas' “without authority.” In this respect the two statutes are comparable.

Second, Saucedo argues that the differences in the intent requirement make the two statues incomparable. For residential burglary in Washington, the defendant must have an “intent to commit a crime against a person or property therein.” Wash. Rev. Code Ann. § 9A.52.025(1). In Kansas, K.S.A. 2013 Supp. 21-5807 the defendant must have an “intent to commit a felony, theft or sexually motivated crime therein.”

Saucedo does not contest that the burglary in Washington involved a dwelling. The distinction Saucedo now raises between the Washington burglary statute and the Kansas burglary statute does bear upon whether his Washington conviction was for what we would characterize in Kansas as a person crime. See State v. Williams, 299 Kan. 870, 875, 326 P.3d 1070 (2014). The offenses under both statutes are similar in nature, and the statutes apply to similar conduct.

In Moore, the defendant had a prior burglary conviction in Oregon. Moore did not argue that the Oregon statute lacked a dwelling element. Instead, he argued that the intent required by the Oregon statute made it broader, and therefore incomparable, to the Kansas statute. This court disagreed. Whether the burgled structure was a dwelling is the differentiating factor between a person and a nonperson offense, not the required level of intent. Further, Kansas has declined to adopt the identical-or-narrower rule from Descamps. Moore, 52 Kan. App. 2d at 814; see State v. Buell, 52 Kan. App. 2d 818, 829-30, 377 P.3d 1174 (2016) (The out-of-state burglary statute was comparable to the Kansas burglary statute even when their elements, including the intent element, were not identical. The differing intent elements did not impact whether the crime should be classified as a person or a nonperson crime.), rev. granted 305 Kan. 1253 (2016).

Under Apprendi it is impermissible to rely on a fact that has not been proven beyond a reasonable doubt to the jury in order to enhance a defendant's punishment beyond the statutory maximum. But here, the intent element under either the Washington statute or the Kansas statute does not affect Saucedo's sentence. What affects the treatment of the crime—as being either a person or nonperson offense—is whether the Washington burglary was of a dwelling, and Saucedo does not contest that his Washington burglary was of a dwelling.

The Kansas and Washington burglary statutes are comparable, and the district court properly treated Saucedo's Washington conviction as a person crime in calculating his sentence.

Affirmed.

Per Curiam: