State v. Morgan ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,704
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SHEILEN J. MORGAN,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed October 30, 2020.
Affirmed.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL and ATCHESON, JJ.
PER CURIAM: In this direct appeal of his sentence, Sheilen J. Morgan claims the
sentencing court used an improper criminal history score when it computed his sentence.
It did not and we affirm.
Morgan committed theft in March 2018 and later pled guilty. Using a criminal
history score of C, the district court sentenced him to 11 months in prison. The court set
his criminal history score as C based on his 2014 conviction for aggravated burglary. The
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court found this was a person crime conviction. Morgan claims this finding was an error
by the court.
Morgan tries to persuade us that his 2014 Kansas conviction for aggravated
burglary cannot be counted as a person felony in his criminal history score. In his view,
since the statutory definition of aggravated burglary in 2014 was broader than in 2018
when he committed his current crime, his conviction must be a nonperson crime and
therefore, his criminal history score is incorrect. He cites State v. Keel, 302 Kan. 560, 357
P.3d 251 (2015), and State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), as support for
his argument.
We are not persuaded.
In Keel, the court showed us how to classify prior Kansas convictions for crimes
committed before the enactment of the Kansas Sentencing Guidelines Act. Basically, the
court held that when designating a pre-KSGA conviction as a person or nonperson crime
for criminal history purposes, the court must consider how the crime would have been
classified based on the classification in effect for the comparable Kansas offense when
the current crime of conviction was committed. 302 Kan. at 581.
Later, the Legislature codified this rule in K.S.A. 2015 Supp. 21-6810(d)(2) for
prior convictions of offenses committed before July 1, 1993. Morgan's aggravated
burglary conviction was from 2014—well after the KSGA was enacted and the
Legislature had classified aggravated burglary as a person crime.
In Wetrich, the court taught us how to classify prior out-of-state convictions. The
KSGA dictated that an out-of-state crime was designated as person or nonperson based
on the "comparable" Kansas offense. K.S.A. 2017 Supp. 21-6811(e)(3); 307 Kan. at 557.
The Wetrich court defined the term "comparable" using an identical or narrower test. For
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an out-of-state conviction to be comparable to a Kansas offense, the elements of the out-
of-state crime cannot be broader than the elements of the Kansas crime. 307 Kan. at 562.
Because we are dealing with a Kansas conviction for a crime committed after the
enactment of the KSGA, Keel and Wetrich do not help us much.
A more helpful case is State v. Coleman, 311 Kan. 305, 460 P.3d 368 (2020). In
Coleman, the court applied the identical or narrower test to a pre-KSGA in-state
conviction. In doing so, the court acknowledged that the Wetrich decision was concerned
with "cross-jurisdictional problems between states, but the differences in how Kansas
from time to time defines what constitutes criminal conduct, or how seriously that
conduct should be treated when sentencing a current offense, can create similar
problems." 311 Kan. at 310. But, like in Keel, the issue before the court was only how to
score a Kansas conviction obtained before the KSGA designated crimes as person or
nonperson.
We hold the most obvious fact controls this issue. At all relevant times the
Legislature has specifically designated aggravated burglary in Kansas as a person crime.
See K.S.A. 2013 Supp. 21-5807(c)(3); K.S.A. 2017 Supp. 21-5807(c)(2). This fact cannot
be ignored. While it is true that the Legislature narrowed the elements of aggravated
burglary in 2016, it did not change the classification of the crime as a person felony. See
K.S.A. 2016 Supp. 21-5807(c)(2) and (e).
Other panels of this court have reached the same conclusion in State v. Lyon, 58
Kan. App. 2d 474, Syl. ¶ 7, 471 P.3d 716 ( 2020), petition for rev. filed August 19, 2020,
and State v. Rumold, No. 121,038, 2020 WL 4722328, at *6-7 (Kan. App. 2020)
(unpublished opinion), petition for rev. filed September 11, 2020. We find their reasoning
compelling and agree with their holdings.
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In an alternative argument, Morgan argues that this court is constitutionally
prohibited from scoring his prior conviction as a person felony under Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United
States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013).
Morgan raises this issue for the first time on appeal. The definition of an illegal
sentence does not include a claim that the offender's sentence violates a constitutional
provision. Coleman, 311 Kan. at 317.
But frankly, we do not see how this argument helps Morgan. It is true that in
determining whether prior offenses may be used to enhance a defendant's sentence, a
sentencing court is constitutionally prohibited under Apprendi and Descamps from
making additional factual findings beyond simply identifying the statutory elements of
the primary offense. See State v. Dickey, 301 Kan. 1018, 1039, 350 P.3d 1054 (2015).
But here we need only look to the classification of the crime stated in the statute rather
than the facts of his offense. There can be no constitutional violation because the court is
not making any prohibited factual findings. The court is simply reading the classification
of the crime as set by the Legislature.
Affirmed.
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