State v. Cook ( 2021 )

NOT DESIGNATED FOR PUBLICATION
Nos. 122,873
122,874
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RICKEY DEWAINE COOK,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed August 13, 2021.
Sentences vacated and case remanded with directions.
Michelle A. Davis, 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 ATCHESON, P.J., HILL and CLINE, JJ.
PER CURIAM: At both parties' request, we vacate Rickey Dewaine Cook's
sentences because the district court incorrectly calculated his criminal history score.
Since Cook's presentence investigation did not include one or more subsequent criminal
convictions, we remand for a new presentencing investigation before resentencing.
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Cook pled guilty to various charges and received probation. His probation was
revoked after he pled guilty to a new crime committed in December 2017. His 1987
conviction for "[b]urglary of a [h]abitation" in Texas was scored as a person felony in the
new case, creating a criminal history score of C. The district court imposed sentences
based on this criminal history score.
On appeal, both parties agree Cook's criminal history score was wrongly
calculated under State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). In Wetrich, the
Kansas Supreme Court held that, when calculating a criminal history score, a conviction
from another state is classified as a person or nonperson offense by comparing similar
"offenses under the Kansas criminal code in effect on the date the current crime of
conviction was committed." 307 Kan. 552, Syl. ¶ 2. Under K.S.A. 2017 Supp. 21-
6811(e)(3) (the amended version of K.S.A. 21-4711[e]), to be comparable to an offense
under the Kansas criminal code, the out-of-state crime's elements cannot be broader than
the elements of the Kansas crime. Said another way, the elements of the out-of-state
crime must be either identical to, or narrower than, the elements of the referenced Kansas
crime. Wetrich, 307 Kan. 552, Syl. ¶ 3.
Both parties agree Cook's 1987 Texas conviction should be reclassified as a
nonperson felony because the elements of that out-of-state crime are broader than the
elements of the comparable crime in Kansas. After review of the record and applicable
law, we find the parties are correct and Cook should be resentenced. The statute under
which Cook was convicted, Tex. Penal Code Ann. § 30.02 (West 1974), is indeed
broader than Kansas' comparable residential burglary statute, K.S.A. 2017 Supp. 21-
5807(a)(1). Texas criminalizes burglary of structures "appurtenant to" a structure or
vehicle while, at the time of Cook's convictions, Kansas did not. We must determine the
legality of Cook's sentence by the law in effect when his crime was committed. See
Wetrich, 307 Kan. 552, Syl. ¶ 2.
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We may consider challenges to a criminal history score for the first time on appeal
because a scoring error causes an illegal sentence. State v. Dickey, 305 Kan. 217, 219,
380 P.3d 230 (2016). We have the authority to correct an illegal sentence at any time
while the sentence is being served. K.S.A. 2020 Supp. 22-3504(a). Since our
determination of whether a prior conviction should be classified as a nonperson or person
offense requires an interpretation of the Kansas Sentencing Guidelines Act, we have
unlimited review of the district court's actions. State v. Keel, 302 Kan. 560, Syl. ¶ 4, 357
P.3d 251 (2015).
Here, the parties agree we should remand to the district court for resentencing.
While Cook asks us to qualify his new criminal history score as E, the State asks us to
direct the district court to conduct a new presentence investigation before resentencing.
We agree with the State that a new presentence investigation is required. The
record reveals Cook was convicted of one or possibly more crimes after his original
sentencing, which should be part of his presentence investigation before resentencing.
State v. Patry, 266 Kan. 108, 111, 967 P.2d 737 (1998) (finding criminal convictions
occurring in separate case after sentencing should be used in determining criminal history
under Act when resentencing, when interpreting precursor to K.S.A. 2017 Supp. 21-
6810[a]).
Because Cook's sentences are illegal, we vacate them and remand to the district
court for resentencing with directions that the district court conduct a new presentencing
investigation that classifies Cook's 1987 Texas burglary as a nonperson felony.
Sentences vacated and case remanded with directions.
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