State v. Dickey, 301 Kan. 1018

Summary

The Kansas Supreme Court held that Jeff Dickey could challenge for the first time on appeal the classification of his prior juvenile burglary adjudication for criminal-history purposes. Because the prior burglary statute did not require that the burglarized structure be a dwelling, classifying the adjudication as a person felony would require unconstitutional judicial factfinding under Descamps and Apprendi. The court vacated Dickey’s sentence and remanded for resentencing with the adjudication classified as a nonperson felony.

Holdings

1. A legal challenge to the classification of a prior conviction or juvenile adjudication, and to the resulting criminal-history score, may be raised for the first time on appeal as a challenge to an illegal sentence under K.S.A. 22-3504(1), even when the defendant failed to object or stipulated to the score at sentencing.
2. State v. Murdock did not apply to the classification of Dickey's pre-KSGA in-state burglary adjudication because K.S.A. 2014 Supp. 21-6811(d) specifically governs classification of prior Kansas burglaries.
3. The categorical and modified categorical approaches described in Descamps apply when determining whether a prior Kansas burglary conviction or adjudication is a person or nonperson felony under the KSGA.
4. Dickey's 1992 juvenile burglary adjudication must be classified as a nonperson felony because the 1991 burglary statute did not include dwelling status as an element, and classifying the adjudication as a person felony would require constitutionally prohibited judicial factfinding.

Questions Presented

1. Whether Dickey's challenge to the classification of his prior burglary adjudication could be raised for the first time on appeal despite his failure to object to, and apparent stipulation concerning, his criminal history score at sentencing.
2. Whether State v. Murdock's treatment of pre-Kansas Sentencing Guidelines Act out-of-state offenses applied to Dickey's pre-KSGA in-state juvenile burglary adjudication.
3. Whether applying the Kansas statute governing classification of prior burglaries required unconstitutional judicial factfinding under Descamps v. United States and Apprendi v. New Jersey.
4. Whether Dickey's 1992 burglary adjudication should be classified as a person or nonperson felony for criminal-history purposes.

Disposition

reversed_and_remanded