State v. Gales ( 2020 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 119,302
STATE OF KANSAS,
Appellee,
v.
GREGORY LYNN GALES,
Appellant.
SYLLABUS BY THE COURT
1.
Whether a sentence is illegal is a question of law over which appellate courts have
unlimited review.
2.
The penalty parameters for an offense are fixed on the date the offense was
committed.
Review of the judgment of the Court of Appeals in 57 Kan. App. 2d 325, 452 P.3d 868 (2019).
Appeal from Edwards District Court; BRUCE T. GATTERMAN, judge. Opinion filed December 4, 2020.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed, sentence is vacated, and case is remanded with directions.
Kristen B. Patty, of Wichita, was on the briefs for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the
briefs for appellee.
The opinion of the court was delivered by
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BILES, J.: Gregory Lynn Gales challenges the district court's denial of his motion
to correct an illegal sentence. He argues his prior 1976 California juvenile adjudication
for burglary was improperly scored as a person crime, resulting in a longer prison
sentence for his 2001 second-degree murder conviction in Kansas. We agree the district
court erred when it looked beyond the elements of the prior crime to score Gales'
burglary adjudication as a person offense. We further hold the Court of Appeals panel
considering his challenge to the district court's ruling committed a different error by
arbitrarily focusing on just a portion of the California statute's definition of burglary
when it decided the out-of-state conviction was comparable to the Kansas crime of
burglary of a dwelling.
In this somewhat peculiar situation, the statutory rules for classifying Gales'
California crime result in an ambiguity, so the rule of lenity requires us to construe the
statute in his favor. We reverse a Court of Appeals panel that upheld the person
classification, vacate Gales' sentence, and remand his case to the district court for
resentencing with the burglary adjudication to be scored as a nonperson offense.
FACTUAL AND PROCEDURAL BACKGROUND
Gales was convicted in 2001 of intentional second-degree murder and arson. The
crimes occurred in September 2000. The district court originally sentenced him to 267
months' imprisonment for the murder and imposed a consecutive, 19-month prison term
for the arson.
To determine the sentence for the murder conviction, the court applied a criminal
history score of D. That score results when the offender's criminal history includes one
person felony and no nonperson felonies. K.S.A. 21-4709. Gales' amended presentence
investigation report reflected just one person felony—a 1976 California juvenile
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adjudication listed simply as "Burglary (residence)." The report did not identify the
California statute he violated.
In 2014, Gales moved pro se to correct his 2001 sentence. He argued the
California burglary adjudication was improperly scored as a person felony, citing State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (Murdock I) (holding out-of-state
convictions for crimes predating the Kansas Sentencing Guidelines Act must be scored as
nonperson felonies). The district court denied the motion. It held Gales was not entitled to
any benefit from Murdock I because his 2001 sentence was final before Murdock I was
decided. He appealed.
As Gales' appeal was pending, this court decided State v. Dickey, 301 Kan. 1018,
350 P.3d 1054 (2015) (holding pre-KSGA Kansas burglaries must be scored as
nonperson felonies), and State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015) (overruling
Murdock I). In Dickey, the court held a pre-KSGA Kansas burglary conviction must be
scored as a nonperson felony under a statute that provided a prior burglary should be
scored as a person felony if it involved a dwelling, but as a nonperson felony if it did not.
It concluded the pre-KSGA Kansas burglary statute did not have an element that included
a dwelling, so the sentencing court was "constitutionally prohibited from classifying
Dickey's prior burglary adjudication as a person felony because doing so would have
necessarily resulted from the district court making or adopting a factual finding that went
beyond simply identifying the statutory elements that constituted the prior burglary
adjudication." 301 Kan. at 1039.
In considering Gales' illegal sentence claim, a Court of Appeals panel rejected
various procedural bars the State raised. It vacated his sentence and remanded to the
district court for resentencing. State v. Gales, No. 114,027, 2016 WL 5844573 (Kan.
App. 2016) (unpublished opinion) (Gales I). The Gales I panel held remand was
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appropriate to determine whether Gales' prior California burglary adjudication involved a
dwelling under the modified categorical analysis articulated in Dickey. 2016 WL
5844573, at *2-3.
The Dickey court described that analysis as follows:
"The modified categorical approach applies when the statute forming the basis of
the prior conviction is a 'divisible statute,' i.e., a statute which includes multiple,
alternative versions of the crime and at least one of the versions matches the elements of
the generic offense. Naturally, when a defendant's prior conviction arises under a
divisible statute, a sentencing court cannot determine whether a defendant's prior
conviction constitutes a predicate offense under the ACCA by merely examining the
elements of the statute. Thus, without running afoul of Apprendi [v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)], a sentencing court is permitted to look
beyond the elements of the statute and examine a limited class of documents to determine
'which of a statute's alternative elements formed the basis of the defendant's prior
conviction.' [Citations omitted.]" Dickey, 301 Kan. at 1037-38.
In Gales' case, the Gales I panel noted the parties agreed the 1976 California
burglary statute did not require evidence the burgled structure was a dwelling. Gales I,
2016 WL 5844573, at *2. The panel held that,
"[C]lassifying Gales' 1976 California burglary as a person offense required the sentencing
court to go beyond merely finding the existence of this prior adjudication or comparing
the statutory elements constituting burglary. There is no indication in the record that the
sentencing court examined the appropriate documents to see whether Gales' California
burglary was committed in a dwelling. Those documents would have included the
charging documents, plea agreements, jury instructions, verdict forms, and transcripts
from plea colloquies as well as findings of fact and conclusions of law from a bench trial.
See Johnson v. United States, 559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010).
Thus, classifying Gales' 1976 burglary adjudication as a person offense violated his Sixth
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Amendment constitutional rights as described in Apprendi and Descamps [v. United
States, 570 U.S. 254, 267, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013)]. Whether Gales'
prior California burglary adjudication should be properly scored as a person or nonperson
offense requires us to remand to the district court for additional findings as provided by
Dickey, 301 Kan. at 1039-40." Gales, 2016 WL 5844573, at *3.
On remand, the district court conducted an evidentiary hearing. The State offered
three exhibits into evidence. Exhibit 1 contained six documents: The California charging
document, the judgment, a probation officer's report and recommendation, two orders
finding Gales committed additional violations, and an order committing Gales to the state
Youth Authority. Exhibit 2 contained five documents, but only one was not included in
Exhibit 1, i.e., minutes from an October 1976 hearing finding Gales had received stolen
property and ordering him to continue juvenile hall detention. Exhibit 3 contained one
document, a January 7, 1976, probation officer's report.
The California charging document that resulted in the burglary adjudication
alleged that Gales "on or about August 30, 1975, in the County of Placer, State of
California, did wilfully enter the RESIDENCE and building occupied by NATHAN
KELLER with the intent to commit a felony and theft therein; thereby violating Section
459 of the Penal Code. BURGLARY." The journal entry adjudicating Gales as a juvenile
court ward found "[t]he allegations of the petition are true and correct beyond a
reasonable doubt that minor is in violation of Section 459 PC (1ct) and Sec 488 PC
(4cts); thereby coming within the provisions of Section 602 of the Juvenile Court Law."
A January 1976 probation officer's report recited some background facts.
According to that document, police obtained jewelry from a burglary at "the Keller
residence" that had not been reported. The victims confirmed the burglary but said they
did not want their insurance rates to go up so they did not report the crime. The officer's
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report also contains details of a conversation with police in which Gales admitted
participating in the burglary. He said a pocketknife was used to slip the front door latch,
then he and two accomplices went to a bedroom and took jewelry, but they decided not to
steal guns in the home's guest cottage. The report quoted a signed statement Gales made
when interviewed in juvenile hall as saying: "Mike Munoz and Tony Munoz and [I] went
in the house and took some jewelry and left. Mike told me to get the guns. [I] said no and
he came back the next day and got the guns. [I don't] know who was with him then that
day." Gales objected to these documents because they were not certified.
At a 2018 hearing following the panel's remand, the district court overruled Gales'
criminal history score objection and imposed its original 267-month sentence for the
murder conviction, applying a D criminal history score. The court concluded the panel's
decision required it to apply the "modified categorical approach" to determine if the
burglary adjudication involved a dwelling "because of the fact that the prior conviction
from California is a divisible statute." And after reviewing the State's exhibits, it ruled
"[f]rom the information from the modified categorical approach, an examination of those
documents from the Placer County Court, the Court would find that the out-of-state
burglary is in fact a person offense. Therefore, the original criminal history score of D is
correct."
Gales moved for reconsideration, arguing again that the file-stamped, but
uncertified, documents from the California court were not competent evidence to prove
his criminal history. The court ruled the documents were admissible and again sentenced
Gales to 267 months' imprisonment for the murder conviction using a D criminal history
score. Gales appealed.
A Court of Appeals panel affirmed. It held the district court was right for the
wrong reason. The panel concluded that Dickey did not represent a change in the law, and
6
the Apprendi principles it relied on would apply in resolving Gales' illegal sentence
claim. State v. Gales, 57 Kan. App. 2d 325, 337, 344-45, 452 P.3d 868 (2019) (Gales II).
Next, it concluded the district court violated Apprendi because it went beyond examining
the California statute's elements by looking at the charging document to decide the
burglary involved a residence. In the panel's view, the California statute contained "only
one set of elements," so it could not look beyond the statute's language to classify Gales'
adjudicated burglary. 57 Kan. App. 2d at 344. But the panel concluded the district court
properly scored the California adjudication as a person crime anyway, reasoning "the
1976 version of Cal. Penal Code § 459, which defined the crime to include burglary of a
house, is comparable, but not identical, to K.S.A. 21-3715(a), which defined the crime to
include burglary of a dwelling." 57 Kan. App. 2d at 344.
Gales petitioned this court for review. The State filed a conditional cross-petition
for review, arguing he could not obtain any relief based on Dickey because, it claims,
Dickey was a change in the law not applicable to Gales' motion. The State further argues
the sentencing statute at the time of Gales' conviction permitted it to be scored as a
person felony if the State proved by a preponderance of the evidence it was comparable
to burglary of a dwelling.
We granted both the petition for review and the conditional cross-petition for
review. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review
of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to
review Court of Appeals decisions upon petition for review).
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SCORING THE CALIFORNIA OFFENSE AS A PERSON OR NONPERSON CRIME
The question is whether the district court properly scored Gales' prior adjudication
as a person crime. The court may correct an illegal sentence at any time. K.S.A. 2018
Supp. 22-3504.
At the time Gales filed his motion, we defined "illegal sentence" as:
"'(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not
conform to the applicable statutory provision, either in the character or the term of
authorized punishment; or (3) a sentence that is ambiguous with respect to the time and
manner in which it is to be served. [Citations omitted.]'" State v. Donahue, 309 Kan. 265,
267, 434 P.3d 230 (2019).
Standard of review
Whether a sentence is illegal is a question of law over which appellate courts have
unlimited review. State v. Roberts, 309 Kan. 420, 422, 435 P.3d 1149 (2019); see also
State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018) ("Classification of prior
offenses for criminal history purposes involves interpretation of the KSGA; statutory
interpretation is a question of law subject to unlimited review.").
Discussion
The penalty parameters for an offense are fixed on the date the offense was
committed. Keel, 302 Kan. at 582. And the legality of a sentence is controlled by the law
in effect at the time the sentence was pronounced under K.S.A. 22-3504. State v.
Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) (Murdock II). At the time of Gales'
conviction and original sentencing, K.S.A. 21-4711 provided:
8
"[T]he following shall apply in determining an offender's criminal history classification
as contained in the presumptive sentencing guidelines grid for nondrug crimes and the
presumptive sentencing guidelines grid for drug crimes:
....
"(d) Prior burglary adult convictions and juvenile adjudications will be scored for
criminal history purposes as follows:
(1) As a prior person felony if the prior conviction or adjudication was
classified as a burglary as described in subsection (a) of K.S.A. 21-3715 and
amendments thereto.
(2) As a prior nonperson felony if the prior conviction or adjudication
was classified as a burglary as described in subsection (b) or (c) of K.S.A. 21-
3715 and amendments thereto.
"The facts required to classify prior burglary adult convictions and juvenile
adjudications must be established by the state by a preponderance of the evidence.
"(e) Out-of-state convictions and juvenile adjudications will be used in
classifying the offender's criminal history. An out-of-state crime will be classified as
either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a
felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall
classify the crime as person or nonperson. In designating a crime as person or nonperson
comparable offenses shall be referred to. If the state of Kansas does not have a
comparable offense, the out-of-state conviction shall be classified as a nonperson crime.
Convictions or adjudications occurring within the federal system, other state systems, the
District of Columbia, foreign, tribal or military courts are considered out-of-state
convictions or adjudications. The facts required to classify out-of-state adult convictions
and juvenile adjudications must be established by the state by a preponderance of the
evidence." K.S.A. 21-4711.
9
The panel appropriately identified K.S.A. 21-4711(e), which governs the
classifying of out-of-state crimes, as supplying the applicable standard, rather than K.S.A.
21-4711(d), which governs classification of prior burglary convictions, because Gales'
burglary adjudication occurred in a different state. See Wetrich, 307 Kan. at 556 (holding
classification of Missouri burglary conviction controlled by provision governing
classification of out-of-state crimes under amended version of K.S.A. 21-4711[e], K.S.A.
2017 Supp. 21-6811[e]).
But despite identifying K.S.A. 21-4711(e) as the controlling statute, the panel
spent considerable effort addressing whether Dickey, which construed a different statute,
could apply retroactively to Gales' case. This focus triggered the State's conditional cross-
petition for review challenging the panel's determination that Dickey was not a change in
the law. This is all for naught because our issue is not controlled by Dickey. See Wetrich,
307 Kan. at 557-58 (noting Dickey's "clear implication . . . is that constitutional
constraints would require that, to be a comparable offense, a prior out-of-state crime must
have identical or narrower elements than the Kansas offense to which it is being
compared," but reaching that construction of the comparability requirement without
applying Dickey). Because of this, the State's arguments why Dickey should not control
are moot.
At the time of Gales' 2001 conviction, under K.S.A. 21-4711(e) "'[f]or purposes of
determining criminal history, the offenses need only be comparable, not identical.'" State
v. Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019) (quoting State v. Vandervort, 276
Kan. 164, 72 P.3d 925 [2003]). The documents the State produced on remand reflected
only that Gales' burglary adjudication was obtained under Cal. Penal Code § 459. That
statute provided:
10
"Every person who enters any house, room, apartment, tenement, shop,
warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car,
trailer coach as defined by the Vehicle Code, vehicle as defined by said code when the
doors of such vehicle are locked, aircraft as defined by the Harbors and Navigation Code,
mine or any underground portion thereof, with intent to commit grand or petit larceny or
any felony is guilty of burglary." Cal. Stats. 1947, ch. 1052.
A separate provision, Cal. Penal Code § 460, defined degrees of burglary and
designated burglaries of "inhabited dwelling houses, trailer coaches, . . . or building[s]
committed in the nighttime" as first-degree burglary. But nothing from the California
adjudication in our record refers to Section 460, or even to Gales having committed any
particular degree of the offense.
At the time of Gales' second-degree murder conviction, K.S.A. 21-3715 provided,
"Burglary is knowingly and without authority entering into or remaining within
any:
"(a) Building, manufactured home, mobile home, tent or other structure
which is a dwelling, with intent to commit a felony, theft or sexual battery
therein;
"(b) building, manufactured home, mobile home, tent or other structure
which is not a dwelling, with intent to commit a felony, theft or sexual battery
therein; or
"(c) motor vehicle, aircraft, watercraft, railroad car or other means of
conveyance of persons or property, with intent to commit a felony, theft or sexual
battery therein.
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"Burglary as described in subsection (a) is a severity level 7, person felony.
Burglary as described in subsection (b) is a severity level 7, nonperson felony. Burglary
as described in subsection (c) is a severity level 9, nonperson felony." K.S.A. 21-3715.
K.S.A. 21-3110(7) defined "'[d]welling" to mean "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."
Gales contends Cal. Penal Code § 459 is not comparable to Kansas' person crime
of residential burglary. He argues it is comparable to the crime's nonperson versions. He
contends the panel erred by focusing on the word "home" in the statute, even though the
California crime could have occurred under the statutory language if he burgled a
warehouse, shop, mill, stable, or other non-dwelling structures listed in the law. And he
asserts the panel could not have concluded he burgled a house unless it looked at the
adjudication's underlying facts and went outside the California statute's language. This,
he claims, would violate his Sixth Amendment rights. For its part, the State defends the
person-crime classification because it proved by "a preponderance of the evidence" that
the California offense was comparable to the person-crime version of Kansas burglary,
i.e., burglary of a dwelling.
Gales has the better argument. The State's position is essentially that a
comparability analysis can look beyond the statutory elements; but that is contrary to our
caselaw construing the applicable provision. In Vandervort, the court held a Virginia
conviction for exposure was comparable to the Kansas person crime of lewd and
lascivious behavior, even though the Virginia offense did not include one element that the
Kansas crime required, i.e., the victim did not consent to the defendant's conduct.
Vandervort, 276 Kan. at 179. The court reasoned that,
12
"Vandervort confuses the term 'comparable' with the concept of identical
elements of the crime. For purposes of determining criminal history, the offenses need
only be comparable, not identical. K.S.A. 2000 Supp. 21-4711(e). Since K.S.A. 2002
Supp. 21-3508 is the closest approximation to Virginia Code § 18.2-370, it constitutes the
comparable offense." 276 Kan. at 179.
Because the Vandervort court focused on the two statutes being compared, rather
than the facts underlying the prior crime, it impliedly described an elements-based
comparison. And what was implied in Vandervort was made explicit in State v. Williams,
299 Kan. 870, 326 P.3d 1070 (2014). The Williams court rejected a defendant's bid to
inject the underlying evidence into the comparability analysis, reasoning,
"[T]he evidence-based approach Williams promotes is not the approach used by Kansas
courts. Our courts examine the out-of-state crime of conviction and attempt to find a
comparable Kansas crime. And K.S.A. 21-4711(e) plainly stated:
'In designating a crime as person or nonperson comparable offenses shall be referred to.
If the state of Kansas does not have a comparable offense, the out-of-state conviction
shall be classified as a nonperson crime.' (Emphasis added.)
"In this legal review of criminal statutes, there is no review of the evidence
surrounding the out-of-state conviction. Nor is there review of the identicalness of the
elements of the crimes identified in the out-of-state and in-state statutes. Rather, the
review is for crime comparability. Accordingly, we reject Williams' misplaced argument
that the Ohio crime of conviction contains insufficient evidence to establish the Kansas
element of intent to permanently deprive. [Citations omitted.]" (Emphasis added.) 299
Kan. at 874-75.
Based on this caselaw, classifying Gales' burglary adjudication boils down to
whether the dwelling or non-dwelling version of Kansas' burglary crime is the "closest
approximation" to the California crime defined in Cal. Penal Code § 459. We hold the
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non-dwelling version is the closest approximation under K.S.A. 21-4711(e)'s
comparability requirement.
This is true for two reasons. First, this is a unique circumstance in which Kansas
has both person and nonperson versions of the same crime, while the California statute is
both indivisible and equally comparable to either Kansas version. This makes the
comparability requirement ambiguous when applied to the facts since the California
statute enumerates several structures or vehicles in which burglaries may occur—only
some of which imply fitness for human habitation, e.g., a house, apartment, or tent. See
Cal. Penal Code § 459; cf. Wetrich, 307 Kan. at 559-62 (holding comparability
requirement ambiguous on its face, overruling Vandervort; concluding crimes only
comparable if out-of-state crime's elements are identical to or narrower than Kansas
crime's).
This makes the rule of lenity applicable, which mandates that an ambiguous
statute be construed in the accused's favor, with the qualification that the judicial
interpretation in favor of the accused must be reasonable and sensible to effect the
legislative design and the intent of the act. State v. Gensler, 308 Kan. 674, 680, 423 P.3d
488 (2018). The panel's arbitrary decision to zero in on the fact that Cal. Penal Code
§ 459 "defined the crime to include burglary of a house," to the unexplained exclusion of
the other places plainly listed in the statute where the same crime could occur, violates
this mandate. See Gales II, 57 Kan. App. 2d at 344.
Second, there is only one explanation in the record for the panel's narrow focus,
i.e., the State's evidence on remand reflected the underlying factual allegations and
evidence supporting the California adjudication. But Williams requires the comparison be
made only on the statutory elements of the statutes being compared—without reference to
evidence surrounding the prior conviction. Any such reference conflicts with the law in
14
effect at the time Gales' sentence was imposed. See Williams, 299 Kan. at 874. The
statue's directive that criminal history may be proved by a "preponderance of the
evidence" does not give license to delve beyond statutory elements in determining
whether two crimes are comparable.
We emphasize that our decision today is not based on the lack of the identicalness
of the elements of the Kansas and California statutes referenced in Wetrich. And it is not
based on any constitutional rule derived from Apprendi, Descamps, or Dickey. It is based
instead on our law demanding a legal comparison of the applicable statutes, and the lack
of a principled basis rooted in the rather inclusive language of the California statute for
declaring the statute to be "more" comparable to Kansas' residential burglary crime than
its non-residential burglary crimes. We do not disturb our recent decision holding our
interpretation of the comparability statute in Wetrich was a change in the law not
applicable to sentences that were final before it was decided. See Weber, 309 Kan. at
1209.
We reverse the panel's decision, vacate the sentence imposed by the district court,
and remand this case for resentencing with direction to score the California burglary
adjudication as a nonperson crime.
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