                                       No. 119,302

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                            v.

                                 GREGORY LYNN GALES,
                                      Appellant.


                             SYLLABUS BY THE COURT

1.
       A sentence is not an illegal sentence because of a change in the law that occurs
after the sentence is pronounced.


2.
       The 2019 statutory amendments to K.S.A. 22-3504 define a "change in the law" as
a statutory change or an opinion by an appellate court of the State of Kansas, unless the
opinion is issued while the sentence is pending an appeal from the judgment of
conviction.


3.
       The 2019 statutory amendments to K.S.A. 22-3504 are procedural in nature and
shall be construed and applied retroactively.


4.
       While true changes in the law cannot transform a once legal sentence into an
illegal sentence, there might be developments in the law that may shine new light on the
original question of whether the sentence was illegal when pronounced.



                                                1
5.
       State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), does not constitute a
change in the law as contemplated by the 2019 statutory amendments to K.S.A. 22-3504.


6.
       Under K.S.A. 2018 Supp. 21-6811(e)(3), the State of Kansas shall classify a prior
out-of-state crime as person or nonperson for purposes of calculating criminal history. In
classifying a prior out-of-state crime as person or nonperson, comparable offenses under
the Kansas Criminal Code in effect on the date the current crime of conviction was
committed shall be referred to. If the State of Kansas does not have a comparable offense
in effect on the date the current crime of conviction was committed, the out-of-state
crime shall be classified as a nonperson crime.


7.
       The 2015 amendment to K.S.A. 21-6811(e)(3), as set forth in House Bill 2053,
requires the court to compare prior out-of-state crimes to the Kansas Criminal Code in
effect on the date the current crime of conviction was committed. The Legislature clearly
stated its intent that the amendment set forth in House Bill 2053 is procedural in nature
and shall be applied retroactively.


8.
       House Bill 2053 does not constitute a change in the law as contemplated by
K.S.A. 22-3504(c), as amended by L. 2019, ch. 59, §15.


9.
       In State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), an opinion issued by the
Kansas Supreme Court on March 9, 2018, the court held that in order to constitute a
comparable offense under K.S.A. 2017 Supp. 21-6811(e), a prior out-of-state crime must



                                             2
have identical or narrower elements than the Kansas offense to which it is being
compared.


10.
       The rule announced in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), is a
change in the law and shall not be construed or applied retroactively.


       Appeal from Edwards District Court; BRUCE T. GATTERMAN, judge. Opinion filed October 4,
2019. Affirmed.


       Kristen B. Patty, of Wichita, for appellant.


       Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., HILL and STANDRIDGE, JJ.


       STANDRIDGE, J.: Following remand, Gregory Lynn Gales appeals his sentence for
intentional second-degree murder and arson. Gales argues his sentence is illegal because
the district court incorrectly classified his prior California juvenile burglary adjudication
as a person crime when calculating his criminal history score. For the reasons stated
below, we find the district court correctly classified Gales' prior juvenile adjudication as a
person crime and, in turn, find Gales' sentence was legal when imposed.


                          FACTUAL AND PROCEDURAL BACKGROUND

       In 2001, a jury convicted Gales of one count each of intentional second-degree
murder and arson. At sentencing, the district court determined Gales had a criminal
history score of D, based in part on a 1976 California juvenile burglary adjudication that
was classified as a person felony. The resulting sentence was a controlling term of 286
months' imprisonment. This court affirmed Gales' convictions on appeal. See State v.


                                                      3
Gales, No. 88,321, 2003 WL 21981941 (Kan. App. 2003) (unpublished opinion)
(Gales I). Gales filed a petition for review, which the Supreme Court denied. The
conviction and sentence became final when the mandate was issued on November 14,
2003.


        In 2014, Gales filed a motion to correct an illegal sentence. Gales argued his 1976
California burglary juvenile adjudication should have been classified as a nonperson
offense for purposes of calculating his criminal history score when he was sentenced.
Had the prior juvenile adjudication been classified as a nonperson offense, Gales claimed
his sentence for Count I would have been reduced from 267 months to 203 months. On
March 25, 2015, the district court denied Gales' motion. Gales filed a notice of appeal on
April 8, 2015.


        On May 22, 2015, the Kansas Supreme Court issued its decision in State v.
Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I). At issue in Dickey I was the
procedure for deciding whether a prior in-state juvenile adjudication that occurred before
the Kansas Sentencing Guidelines Act (KSGA) went into effect should be scored as a
person or nonperson offense. The court held the constitutional rule established in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which
was adopted by our Supreme Court in State v. Gould, 271 Kan. 394, 414, 23 P.3d 801
(2001), is implicated when a district court enhances a defendant's current sentence by
making findings of fact that go beyond merely finding the existence of a prior conviction
or adjudication. Based on Apprendi, the Dickey I court held that the sentencing court is
limited to comparing the elements of the prior statute of conviction or adjudication to the
elements of the corresponding statute in effect at the time the current crime of conviction
was committed. 301 Kan. at 1039-40.


        In making this comparison, the Dickey I court adopted the Apprendi analysis used
by the United States Supreme Court in Descamps v. United States, 570 U.S. 254, 278,


                                             4
133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). In this analysis, the sentencing court first must
determine whether the statute of prior conviction or adjudication is divisible or
nondivisible. A statute is nondivisible if it contains only one set of elements. If the prior
statute contains only one set of elements, the sentencing court is limited to using the
categorical approach in comparing the statutes, which prohibits the court from looking
beyond the elements of the prior statute for purposes of comparing it to the elements of
the comparable statute in Kansas in effect when the current crime of conviction was
committed. Dickey I, 301 Kan. at 1037-39.


       Unlike a nondivisible statute, a divisible statute contains multiple, alternative
versions of the crime. If the statute is divisible, the sentencing court must determine if
any of the alternative versions of the crime require the same elements as those of the
corresponding Kansas statute in effect when the current crime of conviction was
committed. If at least one of the alternative versions of the prior offense matches the
elements of the corresponding statute in effect at the time the current crime of conviction
was committed, the sentencing court may use a modified categorical approach. The
modified categorical approach allows the sentencing court to engage in limited fact-
finding to determine which set of statutory elements it should use for purposes of
comparing that prior conviction or adjudication with the elements of the comparable
offense in Kansas. So the modified categorical approach lets the court look at a few
underlying facts from the prior conviction or adjudication, but not for sentencing
purposes—only to determine which alternative set of elements in the prior statute it
should use to compare it to the current comparable offense. Dickey I, 301 Kan. at 1037-
38 (citing Descamps, 570 U.S. at 257-67).


       Gales filed his appellate brief on March 17, 2016. Because the district court made
its decision to deny Gales' motion to correct an illegal sentence before the Supreme Court
issued its decision in Dickey I, Gales relied on this new decision to argue in his appellate
brief that the case should be remanded to the district court so it could make a legal


                                              5
comparison of Gales' 1976 California juvenile adjudication for burglary with the
comparable Kansas version of the burglary statute:


       "The pre-sentence report on Mr. Gales, as amended, indicates that Mr. Gales was
       adjudicated to have committed burglary on January 1, 1976, in Placer County, California.
       The worksheet indicates that it was a juvenile adjudication. However, the determination
       of whether this is a person or nonperson felony becomes murkier. The pre-sentence
       investigation report specifically indicates that the Placer County burglary is, 'Burglary
       (residential)'. The report also indicates that the statute is K.S.A. 21-3715(a). . . . K.S.A.
       21-3715 has two categories of burglary, differentiated by whether the structure is a
       'dwelling' or not. If a building, manufactured home, mobile home, tent or other structure
       is a 'dwelling', it is a level 7 person felony. If the categories of structure specifically
       mentioned is not 'a dwelling', then it is a severity level 7 nonperson felony." (Emphasis
       added.)


       Gales argued the record on appeal was insufficient to determine whether his prior
California juvenile adjudication for burglary was a person or nonperson offense when
compared to the version of the burglary statute in effect when the current crime of
conviction was committed. As such, Gales submitted that the only "reasonable and
practical remedy" was to remand the issue to the district court to make that determination.


       The State opposed remand, arguing Gales was procedurally barred from receiving
relief. In the event the panel decided Gales was not procedurally barred, however, the
State conceded that addressing the merits would require a remand. Specifically, the State
noted that, with the exception of an entry in Gales' 2001 criminal history worksheet
described by the court services officer as a 1976 juvenile adjudication for "[b]urglary
(residence)" committed in California, there was nothing in the record to identify the
statute upon which Gales' prior juvenile adjudication was based. Thus, if not procedurally
barred, the State agreed with Gales that the case should be remanded so the district court
could identify the California statute, compare that statute with the version of the Kansas



                                                       6
burglary statute in effect when Gales committed his current crime of conviction, and
ultimately decide whether it was proper to classify the California juvenile adjudication
for burglary as a person offense. Significantly, and although neither party identified the
California burglary statute, the State alleged in its appellate brief that the unidentified
statute was divisible in nature and must be analyzed under the modified categorical
approach set forth in Dickey I when comparing it to the Kansas statute.


       In an opinion filed on September 30, 2016, a panel of this court found no merit to
the procedural arguments presented by the State. State v. Gales, No. 114,027, 2016 WL
5844573 (Kan. App. 2016) (unpublished opinion) (Gales II). On the merits, the panel
relied on the holding in Dickey I to find that the district court violated Gales' Sixth
Amendment constitutional rights by summarily classifying the 1976 California juvenile
burglary adjudication as a person offense for purposes of calculating criminal history.
Gales II, 2016 WL 5844573, at *2-3 (citing Dickey I). In support of this finding, the
Gales II panel appeared to rely, at least in part, on the fact that the district court did not
identify the California statute, which was required in order to compare the California
statute to the Kansas statute. 2016 WL 5844573, at *3.


       With regard to the State's claim that the yet-to-be-identified California statute was
a divisible statute, the Gales II panel noted that if the statute truly was divisible as the
State argued, the district court did not use the "modified categorical approach" applicable
to divisible statutes when it classified the 1976 California juvenile adjudication as a
person offense for criminal history purposes. The Gales II panel ultimately vacated Gales'
sentence and remanded the matter to the district court with directions to make additional
findings under Dickey I, 301 Kan. at 1039-40, in order to determine whether Gales' prior
California juvenile burglary adjudication should be classified as a person or nonperson
offense for purposes of calculating his criminal history. Gales II, 2016 WL 5844573, at
*3.



                                               7
       On October 7, 2016, the Supreme Court issued State v. Dickey, 305 Kan. 217, 220-
22, 380 P.3d 230 (2016) (Dickey II), in which it extended the holding in Dickey I to
challenges raised in motions to correct illegal sentences under K.S.A. 22-3504, like the
one filed by Gales here. For ease of reference, we will refer to Dickey I and Dickey II
collectively as "Dickey" from this point forward unless otherwise necessary to distinguish
between the two cases.


       On remand, the court held an evidentiary hearing on Gales' objection to his
criminal history score. At the December 20, 2017 hearing, the State introduced testimony
from a court services officer who investigated Gales' prior California juvenile burglary
adjudication. The State also introduced fact-specific documents from California related to
Gales' prior adjudication and the time Gales spent on probation. After hearing the
testimony and reviewing the documents introduced into evidence by the State, the district
court overruled Gales' objection to his criminal history score and found that Gales' 1976
California juvenile burglary adjudication should be considered a person offense. The
district court made this decision based on the fact-specific documents from California
presented at the hearing that indicated Gales' offense involved entry into a "residence."
Gales filed a notice of appeal from the district court's decision on March 7, 2018.


       On March 9, 2018, two days after Gales filed his notice of appeal, the Supreme
Court decided State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). In Wetrich, the court
held constitutional constraints 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. 307 Kan. at 562. The briefs on appeal were filed after Wetrich was
issued. In those briefs, the parties disagreed about whether the Wetrich decision was a
substantive change in the law that precluded its retroactive application.


       After the briefs were filed, the Legislature amended the statute governing
correction of an illegal sentence, K.S.A. 22-3504. Two weeks later, the Kansas Supreme


                                              8
Court issued an opinion holding that the legality of a sentence is controlled by the law in
effect when the sentence was pronounced. See State v. Newton, 309 Kan. 1070, 1073, 442
P.3d 489 (2019) (implying that Wetrich was a change in the law). So, on June 11, 2019,
this court ordered the parties to file supplemental briefs addressing any impact the
amended law and the new case had on the issue presented.


       As he did in Gales II, Gales argues in both his original and supplemental briefs
that the sentencing court erred in classifying his 1976 California juvenile burglary
adjudication as a person offense for criminal history purposes, which resulted in an illegal
sentence. This time, however, Gales alleges the court improperly utilized the modified
categorical approach in deciding that his prior juvenile adjudication should be classified
as a person offense for purposes of criminal history. Gales claims the district court
engaged in impermissible judicial fact-finding prohibited by Apprendi, Descamps, and
Dickey when it looked at historical documents from his 1976 California juvenile burglary
adjudication to determine whether the offense involved the burglary of a dwelling. Gales
argues that the district court only was permitted to look at the historical documents to
determine which alternative set of elements in the prior statute it should compare to the
Kansas comparable offense in effect when the current crime of conviction was
committed. As such, Gales contends the district court was prohibited from using the
information in those documents to make a factual finding regarding whether the offense
actually involved the burglary of a dwelling.


       The State contends that this court need not reach the question of whether the
district court improperly utilized the modified categorical approach because Gales is not
entitled to have Dickey retroactively applied to his case. If we should find that the
analysis set forth in Dickey does apply retroactively to Gales' claim of an illegal sentence,
the State alternatively argues the district court properly utilized the modified categorical
approach to classify his 1976 California juvenile burglary adjudication as a person
offense for criminal history purposes.


                                              9
                                               ANALYSIS

       Gales asserts his sentence is illegal. Because the Legislature deemed the
amendments procedural and retroactive, we must use the definition of "illegal sentence"
as set forth in K.S.A. 22-3504(c), as amended by L. 2019, ch. 59, §15:


               "(1) 'Illegal sentence' means a sentence: Imposed by a court without jurisdiction;
       that does not conform to the applicable statutory provision, either in character or
       punishment; or that is ambiguous with respect to the time and manner in which it is to be
       served at the time it is pronounced. A sentence is not an 'illegal sentence' because of a
       change in the law that occurs after the sentence is pronounced.
               "(2) 'Change in the law' means a statutory change or an opinion by an appellate
       court of the state of Kansas, unless the opinion is issued while the sentence is pending an
       appeal from the judgment of conviction."


       Gales challenges his sentence based on the second definition of an illegal
sentence: that his sentence does not conform to the applicable statutory provision in
terms of the punishment authorized. Specifically, Gales argues that the sentencing court
misclassified his 1976 California juvenile burglary adjudication as a person offense in
calculating his criminal history score under K.S.A. 2018 Supp. 21-6811(e) by using a
process that looked beyond the prior statute to the underlying facts of his prior California
offense. Gales argues the classification process used by the district court violated his
constitutional rights as set forth in the United States Supreme Court decisions in
Apprendi and Descamps, as applied by the Kansas Supreme Court in Dickey.


       But the State claims that Dickey cannot be retroactively applied in this case
because it effectively overruled the statutory classification process in K.S.A. 2000 Supp.
21-4711 and therefore constitutes a "change in the law" under K.S.A. 22-3504(c)
(amended 2019) that cannot be applied retroactively. See L. 2019, ch. 59, § 15. Because
Gales' claim of illegal sentence is based on Dickey, we must first address the State's claim



                                                    10
that Dickey cannot be retroactively applied here because it constitutes a change in the
law.


1. Retroactivity of Dickey

       In support of its claim that Dickey must be considered a change in the law, the
State argues Dickey "effectively overruled" the version of K.S.A. 21-4711(d) in effect
when Gales was sentenced. Dickey held that, under the rule announced in Apprendi, a
sentencing court is constitutionally prohibited from enhancing a defendant's current
sentence by making findings of fact that go beyond merely finding the existence of a
prior conviction when classifying prior in-state burglaries as person or nonperson
offenses. Because of this constitutional prohibition, the Dickey I court held the
comparability classification process must be limited to comparing the elements of the
prior statute of conviction or adjudication to the elements of the corresponding statute in
effect at the time the current crime of conviction was committed. 301 Kan. at 1039-40.


       At the time Gales committed the current crime of conviction in 2000, K.S.A. 21-
4711(d) provided as follows:


               "(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."
       K.S.A. 2000 Supp. 21-4711(d).




                                                   11
       In 2011, K.S.A. 21-4711(d) was renumbered to K.S.A. 21-6811(d), but the
language of the subsection remained the same. L. 2010, ch. 136, § 292. In fact, although
the Legislature recently made major revisions to K.S.A. 21-6811 during the 2019
legislative session, the substantive language in subsection (d) remains unchanged from
the language of K.S.A. 21-4711(d) in effect in 2000, when Gales committed his current
crime of conviction. L. 2019, ch. 59, § 13.


       We find no inconsistencies between the holding in Dickey and the statutory
language of K.S.A. 2018 Supp. 21-6811(d). Dickey did not overrule any part of the
classification procedure set forth in 21-6811(d) but instead applied the constitutional
mandate in Apprendi to that statutory process. Because it did not overrule 21-6811(d), we
find no merit to the State's argument that Dickey is a change in the law under K.S.A. 22-
3504(c) (amended 2019) that must not be applied retroactively.


       Notwithstanding our finding in this regard, we readily acknowledge the fact that,
after the amendments to K.S.A. 22-3504(c) became effective on May 23, 2019, our
Supreme Court issued several opinions addressing whether Dickey should be
retroactively applied to reclassify prior burglary convictions as nonperson felonies for
purposes of calculating criminal history. See State v. Tauer, 310 Kan. 1, 444 P.3d 936,
937 (2019); State v. McAlister, 310 Kan. 86, 444 P.3d 923, 925-27 (2019); State v.
Dawson, 310 Kan. 112, 444 P.3d 914, 917-18 (2019). All three of these opinions were
filed on the same day. Although the court resolved the Dickey retroactivity issue under
different facts than the ones presented here, its analysis is helpful in resolving the
retroactivity issue presented in this case.


       The court began its analysis in each of its decisions by reiterating the interpretive
rule it recently had set forth in State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019)
(Murdock II), which holds that



                                              12
       "the legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the
       time the sentence was pronounced. The legality of a sentence is fixed at a discrete
       moment in time—the moment the sentence was pronounced. At that moment, a
       pronounced sentence is either legal or illegal according to then-existing law. Therefore,
       for purposes of a motion to correct an illegal sentence, neither party can avail itself of
       subsequent changes in the law."


       Murdock II expressly states that its holding is not to be construed as deviating
from the longstanding rule that a defendant will receive the benefit of any change in the
law that occurs while the defendant's direct appeal is pending. 309 Kan. at 591. And
finally, Murdock II clarifies that while "true changes in the law cannot transform a once
legal sentence into an illegal sentence," there might be "developments in the law [that]
may shine new light on the original question of whether the sentence was illegal when
pronounced." 309 Kan. at 592.


       Relying on Murdock II, the Supreme Court resolved the issue presented in Tauer,
McAlister, and Dawson by finding that Dickey did not retroactively apply in those
particular cases. Although acknowledging, as it did in Murdock II, that its focus was on
"true" change in the law, the Supreme Court's decision was grounded in its finding that
the rule from Dickey was based on the true change in law established in Apprendi.
Because it constituted a true change in the law, the court held Apprendi did not apply to a
case that was final before it was decided. Tauer, 444 P.3d at 937; McAlister, 444 P.3d at
925-27; Dawson, 444 P.3d at 917-18. This holding is consistent with the Supreme Court's
decision in Gould, which expressly held that the constitutional rule announced in
Apprendi has no retroactive application to cases final as of June 26, 2000, the date
Apprendi was decided. 271 Kan. at 414. Notably, Gould clarified that the Apprendi rule
must be applied to all cases pending on direct appeal, cases which are not yet final, or
cases which arose after June 26, 2000. 271 Kan. at 414.




                                                    13
       Relevant to the retroactivity issue presented here, the Dawson court acknowledged
defendant's argument that Dickey was not a change in the law but instead was an
application of the constitutional rule announced in Apprendi and clarified by Descamps.
But the court ultimately did not address this argument because, even if true, it did not
affect the outcome in Dawson's case given his original sentence was final years before
Apprendi was decided. Dawson, 444 P.3d at 917-18.


       In this case, Gales was sentenced in 2001. His sentence became final on
November 14, 2003. Based on the language in K.S.A. 22-3504(c) (amended 2019)
codifying the longstanding rule that a defendant will receive the benefit of any change in
the law that occurs while the defendant's direct appeal is pending, Gales is entitled to
receive the benefit of the constitutional rule announced in Apprendi because his
conviction became final after the rule in Apprendi was announced. This significant
distinction necessarily renders the holdings in Tauer, McAlister, and Dawson inapplicable
under the facts presented here. As such, we must answer the question that the Kansas
Supreme Court left unanswered in Dawson: Is the court's holding in Dickey a true
change in the law as contemplated by K.S.A. 22-3504 (amended 2019)?


       A review of the Dickey decision itself weighs in favor of a finding that the
decision does not represent a true change in the law. See Dickey I, 301 Kan. at 1021
("[C]lassifying Dickey's prior burglary adjudication as a person felony violates his
constitutional rights as described under Descamps and Apprendi."); see also Gould, 271
Kan. at 414 ("[T]he new constitutional sentencing rule established by Apprendi must be
applied here and in all cases pending on direct appeal or which are not yet final or which
arose after June 26, 2000.").


       The analysis conducted by our Supreme Court in Murdock II also supports a
finding that the rule in Dickey does not represent a true change in the law. In Murdock II,
the court expressed its intention that it did not intend to foreclose the possibility that


                                              14
developments in the law might call for a reassessment of the original legality of the
sentence at the time of pronouncement; to the contrary, its focus was on "true changes in
the law." 309 Kan. at 592. And, although the facts are distinguishable, the legal analysis
by the court in Tauer, McAlister, and Dawson supports a finding that the rule in Dickey
does not represent a true change in the law. See Tauer, 444 P.3d at 937 (finding that rule
announced in Apprendi was true change in law and that rule in Dickey was based on legal
principles set forth in Apprendi); McAlister, 444 P.3d at 925-27 (same); Dawson, 444
P.3d at 917-18 (same).


       Although filed before the Supreme Court issued its opinion in Murdock II, several
panels from our court have held Dickey does not represent a true change in the law. See
State v. Thomas, 53 Kan. App. 2d 15, 24, 383 P.3d 152 (2016) ("[T]he court's holding in
Dickey is not a 'change in the law' under [a retroactivity] analysis, but rather an
application of the constitutional rule announced in Apprendi and clarified by
Descamps."); State v. Martin, 52 Kan. App. 2d 474, 484, 369 P.3d 959 (2016) ("Apprendi
was the basis for the ultimate holding in Dickey. Descamps provided a means by which to
determine whether certain sentencing determinations violated Apprendi, and Dickey
applied that framework to Kansas criminal history determinations. [Citations omitted.]");
State v. Hopkins, No. 114,300, 2016 WL 4735093, at *2 (Kan. App. 2016) (unpublished
opinion) (rule of Dickey applies in criminal cases pending when Apprendi decided or
filed thereafter); State v. Barnes, No. 114,107, 2016 WL 5853096, at *2-3 (Kan. App.
2016) (unpublished opinion) (Dickey not a change in the law but application of
Apprendi).


       Finally, a finding that the rule in Dickey is not a change in the law but merely an
application of the new legal rule announced in Apprendi also is supported by post-
Apprendi decisions issued by the United States Supreme Court. In Descamps, the Court
concluded that Apprendi is implicated when a district court, for purposes of enhancing a
defendant's sentence for a current conviction, makes findings of fact at sentencing that go


                                              15
beyond merely finding the existence of a prior conviction or the statutory elements that
made up the prior conviction. Descamps, 570 U.S. at 269-70. In coming to this
conclusion, the Descamps Court noted that its prior caselaw "all but resolves this case."
570 U.S. at 260. In Mathis v. United States, 579 U.S. ___, 136 S. Ct. 2243, 2251-57, 195
L. Ed. 2d 604 (2016), the Court distinguished between alternative elements and
alternative means of proving a single element, noting that alternative means or facts were
not subject to the modified categorical approach discussed in Descamps. In reaching its
decision, the Court expressly stated that prior caselaw "make[s] this a straightforward
case." Mathis, 136 S. Ct. at 2257.


       Based on the discussion above, we find the rule set forth in Dickey is not a
"change in the law" as contemplated by K.S.A. 22-3504(c) (amended 2019). Because it is
not a change in the law, we will apply the rule set forth in Dickey to Gales' claim of
illegal sentence here.


2. Classification of prior California burglary adjudication

       When Gales' sentence became final on November 14, 2003, the applicable
sentencing rule for classifying prior out-of-state convictions provided:


               "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 non-person crime.
       . . . 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. 2003 Supp.
       21-4711(e).




                                                    16
       As we noted above, K.S.A. 21-4711(e) was renumbered to K.S.A. 21-6811(e) in
2011, but the substantive language of the subsection remained the same. L. 2010, ch. 136,
§ 292. Relevant here, the Legislature amended the statute in 2015 to clarify that "[i]n
designating a crime as person or nonperson, comparable offenses under the Kansas
criminal code in effect on the date the current crime of conviction was committed shall be
referred to." (Emphasis added.) L. 2015, ch. 5, § 2 (House Bill 2053). The Legislature
expressly deemed the amendment in House Bill 2053 to be retroactive. So, House Bill
2053 is not a change in the law as contemplated by K.S.A. 22-3504(c) (amended 2019),
and the language added by House Bill 2053 must continue to be applied retroactively.
See State v. Bernhardt, 304 Kan. 460, 479, 372 P.3d 1161 (2016) ("In general, 'a statute
operates only prospectively unless there is clear language indicating the legislature
intended otherwise.'"). Significantly, this means that the sentencing court's 21-6811
classification analysis must compare the out-of-state prior crime to the comparable
Kansas offense in effect on the date the current crime of conviction was committed—
even when the current offense occurred before House Bill 2053 became effective.


       In 2015 and 2018, the Legislature amended K.S.A. 21-6811(e) again, but this time
with regard to classification of prior out-of-state convictions and juvenile adjudications as
felonies and misdemeanors. Those changes are not relevant here. Although the 2019
Kansas Legislature made extensive amendments to the substance of K.S.A. 21-6811(e), it
did not express any intent that those amendments should be construed or applied
retroactively. See L. 2019, ch. 59, § 13. And neither party argues that the 2019
amendments to K.S.A. 21-6811 should apply to this case. As such, we will not address
the 2019 amendments in this opinion. See Bernhardt, 304 Kan. at 479 ("In general, 'a
statute operates only prospectively unless there is clear language indicating the legislature
intended otherwise.'").




                                             17
       Given the retroactivity of the 2015 amendment in House Bill 2053 and the lack of
any other relevant change to K.S.A. 2018 Supp. 21-6811(e) (formerly K.S.A. 21-4711[e])
from November 14, 2003, to May 22, 2019, the following statutory rule has endured:


               "The state of Kansas shall classify the crime as person or nonperson. In
       designating a crime as person or nonperson, comparable offenses under the Kansas
       criminal code in effect on the date the current crime of conviction was committed shall be
       referred to. If the state of Kansas does not have a comparable offense in effect on the date
       the current crime of conviction was committed, the out-of-state crime shall be classified
       as a nonperson crime." K.S.A. 2018 Supp. 21-6811(e)(3).


       Notwithstanding this enduring statutory rule, Kansas courts have long grappled
with how to interpret the meaning of the term "comparable offenses." In State v.
Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003), overruled on other grounds by
Dickey I, 301 Kan. 1018, our Supreme Court held that the offenses "need only be
comparable, not identical," meaning the Kansas statute that was the "closest
approximation" to the out-of-state offense was a comparable offense. The court continued
to define "comparable offense" as set forth in Vandervort until 2018, when it decided
Wetrich, 307 Kan. 552. In Wetrich, the court held constitutional constraints 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. 307 Kan. at 562.


       But recent decisions by our Supreme Court have cut off the retroactive application
of Wetrich by classifying it as a change in law. See State v. Weber, 309 Kan. 1203, 1209,
442 P.3d 1044 (2019) (explicitly holding that "Wetrich was a change in the law"); State v.
Newton, 309 Kan. 1070, 1072-74, 442 P.3d 489 (2019) (implying that Wetrich was
change in law). Accordingly, if a defendant was sentenced under the pre-Wetrich
"comparable, not identical" or "closest approximation" approach to classification of a
prior out-of-state crime as a person or nonperson offense, then that sentence cannot



                                                   18
become illegal based on the identical-or-narrower definition of "comparable offense"
adopted by the court in Wetrich. See Weber, 309 Kan. at 1209.


       Gales was convicted and sentenced in 2001. His conviction and sentence became
final when the mandate was issued on November 14, 2003. Therefore, we must determine
whether Gales' sentence was legal when it became final in 2003. See Murdock II, 309
Kan. at 591 (confirming established rule that defendant will receive benefit of change in
law that occurs while his or her case is pending on direct appeal). Wetrich was not
decided until 2018, long after Gales' sentence became final in 2003. Because our
Supreme Court has held that the identical-or-narrower definition of "comparable
offenses" announced in Wetrich constitutes a change in the law, Gales does not get the
benefit of the holding in Wetrich. Instead, we must apply the rule in Vandervort, which
held that the offenses "need only be comparable, not identical" and therefore the Kansas
statute that was the "closest approximation" to the out-of-state offense was a comparable
offense. 276 Kan. at 179. To apply the comparability rule in Vandervort, we must
determine whether the statutory elements of the prior conviction or adjudication are
comparable (although not identical) to a Kansas statute in effect on the date that the
current crime of conviction occurred. If they are, then the prior conviction or adjudication
will be classified as a person or nonperson offense consistent with the comparable Kansas
statute. If Kansas does not have a comparable offense in effect on the date the current
crime of conviction was committed, the prior out-of-state conviction or adjudication must
be classified as a nonperson crime.


       At the time of Gales' California burglary adjudication, Cal. Penal Code § 459
provided:


               "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 . . . vehicle . . . when the doors of such vehicle are locked, aircraft . . . mine



                                                      19
       or any underground portion thereof, with intent to commit grand or petit larceny or any
       felony is guilty of burglary."


       In addition, California law categorized burglary into degrees. First-degree burglary
was defined as a


       "burglary of an inhabited dwelling house, trailer coach . . . or building committed in the
       nighttime, and every burglary, whether in the daytime or nighttime, committed by a
       person armed with a deadly weapon, or who while in the commission of such burglary
       arms himself [or herself] with a deadly weapon, or who while in the commission of such
       burglary assaults any person." Cal. Penal Code § 460(1).


All other kinds of burglary constituted second-degree burglary. Cal. Penal Code § 460(2).


       In determining whether there is a comparable Kansas offense, we look to the
Kansas criminal statutes in effect at the time Gales committed his current crime of
conviction. See K.S.A. 2018 Supp. 21-6811(e)(3). When Gales committed his current
crimes in 2000, Kansas defined burglary as follows:


               "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."
       K.S.A. 21-3715.


       Burglary of a dwelling as described in subsection (a) was classified as a person
felony. However, burglary as defined in either subsection (b) or (c) was classified as a


                                                    20
nonperson felony. See K.S.A. 21-3715. If Gales' California burglary adjudication under
Cal. Penal Code § 459 is comparable to the crime of burglary as defined by K.S.A. 21-
3715(a), then the prior adjudication must be classified as a person offense. If Gales'
California burglary adjudication under Cal. Penal Code § 459 is comparable to the crime
of burglary as defined by K.S.A. 21-3715(b) or (c), then the prior adjudication must be
classified as a nonperson offense.


       Back in 2016, when the Gales II court was presented with this identical issue, the
panel highlighted in its opinion the fact that the district court failed to identify the
California statute under which Gales was adjudicated, which was required in order to
compare the California statute to the Kansas statute. See Gales II, No. 114,027, 2016 WL
5844573, at *3. As requested by the parties, the Gales II panel ultimately vacated Gales'
sentence and remanded the matter to the district court with directions to make additional
findings under Dickey in order to determine whether Gales' prior California burglary
adjudication should be scored as a person or nonperson offense. In retrospect, the opinion
issued by the Gales II court was less than clear in explaining why remand was required,
what additional findings were needed, and how the court should utilize those additional
findings. Frankly, the district court did the best it could to decipher the directions on
remand. Given the factual and procedural history as described above, however, we
belatedly now explain that remand was necessary to identify the California statute upon
which Gales' prior adjudication was based and then to determine whether the California
statute contained only one set of elements (nondivisible) or multiple, alternative versions
of the crime (divisible).


       If the court determined that the California statute was nondivisible, the court was
required to use the categorical approach to determine whether the elements of the
California statute were comparable, but not identical, to the Kansas statute in effect at the
time Gales committed his current crime of conviction. If the California statute was
divisible—as the State specifically argued in its Gales II appellate brief—the district


                                               21
court was required to determine whether any of the alternative versions of the prior crime
corresponded to the Kansas statute in effect at the time Gales committed his current crime
of conviction. If at least one of the alternative versions of the prior offense corresponded
to the relevant Kansas statute, the sentencing court was permitted to use a modified
categorical approach to determine which alternative version of the prior statute should be
used for the statutory comparability analysis. Under the modified categorical approach,
the court is permitted to look at a few underlying facts from the prior conviction, but not
for sentencing purposes; the underlying facts can only be utilized to determine which
alternative version of the prior statute should be used to compare it to the current Kansas
comparable offense. Dickey, 301 Kan. at 1037-38 (citing Descamps).


       On remand, the State introduced documents from California relating to Gales'
prior adjudication. These documents included the amended petition charging Gales with
entry, which stated:


       "COUNT I: Said minor, on or about August 30, 1975, in the County of Placer, State of
       California, did wil[l]fully 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."


The State also introduced the court's order finding Gales guilty of the charges set forth in
the petition. Given the facts as charged in the amended petition and the California court
order finding Gales guilty of those charges, the State argued that the burglary
adjudication should be classified as a person offense consistent with the version of Cal.
Penal Code § 460 deeming burglary of an inhabited dwelling as a burglary of the first
degree. In response, Gales argued the State failed to provide any documentation to
establish the severity of the offense he committed. Gales noted that the documentation
submitted referred to only the general burglary statute, Cal. Penal Code § 459, and made
no mention of the severity level of the offense or Cal. Penal Code § 460, which is the



                                                 22
statute governing severity classification for the crime of burglary under Cal. Penal Code
§ 459. For these reasons, Gales argued his crime must be considered a burglary in the
second degree.


       The district court ultimately held that the prior California adjudication should be
classified as a person offense because the documents reviewed established that Gales'
offense involved entry into a "residence," which was comparable to the dwelling
requirement in K.S.A. 21-3715(a). Although we agree with the district court's decision to
classify the prior California crime as a person offense, we find the process used by the
district court to reach that decision violated the constitutional rule established in Apprendi
and adopted by our Supreme Court in Gould, which prohibits a sentencing court from
enhancing a defendant's current sentence by making findings of fact that go beyond
merely finding the existence of a prior conviction. Apprendi, 530 U.S. at 490; Gould, 271
Kan. at 414. Specifically, the court used the facts set forth in the charging document and
order of conviction, instead of the statute of conviction, to determine whether the prior
California crime was comparable to the Kansas statute in effect when Gales committed
his current crime of conviction in 2000. Because the statute of prior conviction has been
identified, we are in a position to engage in the statutory comparability analysis required
under K.S.A. 2018 Supp. 21-6811(e). We do so now.


       Utilizing the classification process set forth in Dickey, we first must determine
whether Cal. Penal Code § 459 was a divisible statute in 1976 at the time Gales was
adjudicated under that statute. The State argues, as it did below, that the burglary statute
is divisible because Cal. Penal Code § 459 must be read in conjunction with Cal. Penal
Code § 460, which deems burglary of an inhabited dwelling house as a burglary of the
first degree. But Gales was not charged or convicted under Cal. Penal Code § 460. And
there is nothing in the record on appeal to establish that Gales was charged or convicted
of burglary in the first degree. Gales was charged with burglary under § 459 and found



                                             23
guilty under that statute. So, contrary to the State's argument, our divisibility analysis will
focus solely on § 459.


       At the time of Gales' prior adjudication, § 459 contained only one set of elements.
See Cal. Penal Code § 459. Because it did not contain multiple, alternative versions of the
crime, we are constitutionally prohibited by Apprendi, Descamps, and Dickey from
utilizing the modified categorical approach. Specifically, we cannot look beyond the
language in § 459 to determine whether the Kansas statute in effect at the time the current
crime was committed was comparable under K.S.A. 2018 Supp. 21-6811(d). Relevant
here, § 459 defined burglary in 1976 as entry into "any house" with "intent to commit
grand or petit larceny or any felony." When Gales committed his current crimes in 2000,
Kansas classified burglary as a person offense when the defendant "knowingly and
without authority enter[ed] into or remain[ed] within any . . . [b]uilding, manufactured
home, mobile home, tent or other structure which is a dwelling, with intent to commit a
felony, theft or sexual battery therein."


       We find 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. See Vandervort, 276 Kan. at 179
(offenses need only be comparable, not identical, for purposes of determining criminal
history). As such, we affirm the district court's decision to classify Gales' prior California
juvenile burglary adjudication as a person crime when calculating his criminal history
score. See State v. Williams, 303 Kan. 585, 595, 363 P.3d 1101 (2016) (affirming
judgment as right for the wrong reasons).


       Affirmed.




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