                                       No. 117,324

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                 KENNY BRUCE WALTER,
                                      Appellant.


                              SYLLABUS BY THE COURT



1.
       In order to follow the revised Kansas Sentencing Guidelines properly, a sentencing
court must know two things: the severity level of the crime of conviction and the
criminal history of the person committing that crime.


2.
       According to the revised Kansas Sentencing Guidelines, crimes against persons
are more serious and thus lead to longer sentences than other crimes.


3.
       Whether an out-of-state conviction is treated as a person or nonperson crime is
based on the classification of the "comparable" Kansas offense in effect at the time the
current offense was committed. If Kansas does not have a comparable offense, the out-of-
state conviction is classified as a nonperson crime.


4.
       For an out-of-state conviction to be comparable to an offense under the Kansas
criminal code, the elements of the out-of- state crime cannot be broader than the elements
                                              1
of the Kansas crime. The elements of the out-of-state crime must be identical to, or
narrower than, the elements of the Kansas crime to which it is being compared.


        Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opinion filed May 18,
2018. Sentence vacated and case remanded with directions.


        Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.


        Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before BRUNS, P.J., HILL, J., and WALKER, S.J.


        HILL, J.: In this appeal, we must decide if the sentencing court erred when it
calculated Kenny Bruce Walter's criminal history score when it scored two Missouri
burglary convictions as person felonies. By using the "identical or narrower" test recently
adopted by our Supreme Court, our legal conclusion differs. We hold that the elements of
the Missouri statutes for first- and second-degree burglary are not identical to, nor are
they narrower than, the Kansas burglary statute. Thus, the sentencing court erred by
establishing and using an incorrect criminal history score. We vacate Walter's sentence
and remand for resentencing with directions that his two Missouri convictions must be
classified as nonperson felonies when computing his criminal history score.


Walter objected to the convictions' classifications.


        Walter pled guilty to aggravated battery, a severity level 7 person felony. Citing
State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), he objected to the classification of
his two Missouri burglary convictions as person felonies, The sentencing court overruled
his objection and, based on three person felonies in Walter's criminal history, found his
criminal history score was A. The court then sentenced Walter to 30 months in prison.

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       On appeal, Walter contends that his Missouri convictions are not comparable to
any form of burglary in Kansas. In opposition, the State makes alternative arguments,
first contending that the Missouri and Kansas burglary statutes are comparable and then
arguing the term "inhabitable structure" found in the Missouri statute actually contains
alternative elements, not alternative means and is thus comparable. By following the
guidance of our Supreme Court, our analysis leads us to reject the State's arguments.


       A brief review of some sentencing principles is helpful at this point. In order to
follow the revised Kansas Sentencing Guidelines properly, a sentencing court must know
two things: the severity level of the crime of conviction and the criminal history of the
person committing that crime. With the knowledge of the severity level and criminal
history score, the calculation of a sentence can begin. Adjustments to the sentence,
required by various specific sentencing rules then follow. The policy in Kansas is clear.
Crimes against persons are more serious and thus lead to longer sentences than other
crimes. That is why the classification of an out-of-state criminal conviction is important.


       Whether an out-of-state conviction is treated as a person or nonperson crime is
based on the classification of the "comparable" Kansas offense in effect at the time the
current offense was committed. If Kansas does not have a comparable offense, the out-of-
state conviction is classified as a nonperson crime. See K.S.A. 2017 Supp. 21-6811(e)(3).


       Some types of burglary in Kansas are classified as person offenses, while other
types of burglary in Kansas are classified as nonperson offenses. At the time of Walter's
offense in November 2015, burglary of a "dwelling" was classified as a person felony in
Kansas. K.S.A. 2015 Supp. 21-5807(a)(1), (c)(1)(A). In addition, aggravated burglary
was classified as a person felony in Kansas. K.S.A. 2015 Supp. 21-5807(b), (c)(3).




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The Supreme Court creates a new test to determine comparability of crimes.


       In March 2018, adopting an identical-or-narrower test, the court redefined the term
"comparable." The court analyzed various dictionary definitions of the term
"comparable," finding ambiguity in the term's meaning. See State v. Wetrich, 307 Kan.
552, 559-60, 412 P.3d 984 (2018). Then the court looked to the legislative history. It
found that using an identical-or-narrower rule to determine comparability would further
one of the goals of our Sentencing Guidelines Act of "an even-handed, predictable, and
consistent application of the law across jurisdictional lines." 307 Kan. at 561-62. Our
Supreme Court directed that courts must now look at the elements of the statutes:


               "For an out-of-state conviction to be comparable to an offense under the Kansas
       criminal code, within the meaning of K.S.A. 2017 Supp. 21-6811(e)(3) . . . the elements
       of the out-of-state crime cannot be broader than the elements of the Kansas crime. In
       other words, the elements of the out-of-state crime must be identical to, or narrower than,
       the elements of the Kansas crime to which it is being referenced." 307 Kan. 552, Syl. ¶ 3.


       Under this approach, it is important to determine the elements of the out-of-state
crime. Criminal statutes are often written in the alternative. Though the Wetrich court
rested its decision on the basis of statutory interpretation and not on constitutional
grounds, the court borrowed the distinction between elements and means stated in Mathis
v. United States, 579 U.S. ___, 136 S. Ct. 2243, 2256, 195 L. Ed. 2d 604 (2016). See
Wetrich, 307 Kan. at 558.


       The Wetrich court compared the elements of burglary in Kansas with the elements
of second-degree burglary in Missouri. The court found two elements that were broader
in the Missouri statute: the specific intent required and the nature of the structure
involved.




                                                    4
       "The Kansas crime to which the Missouri conviction is being compared—burglary of a
       dwelling—requires that the entry into or remaining within be done with the specific
       intent to commit a felony, theft, or sexual battery therein. In contrast, the specific intent
       required for the Missouri second-degree burglary is that the burglar's purpose is to
       commit any crime. Consequently, the mere existence of the Missouri conviction does not
       establish the mental state element of the Kansas reference offense because the Missouri
       mental state element is broader. The purpose for the unlawful entry in Missouri could
       have been to commit misdemeanor property damage which would not be a burglary in
       Kansas.


                 "And, of course, the critical element of the Kansas crime is that the structure
       involved must be a dwelling, defined as '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.' K.S.A. 21-3110(7). In the Missouri crime, in contrast, the element of the
       charged crime was that Wetrich unlawfully entered or remained within an inhabitable
       structure, which is broadly defined to include, in addition to a structure where any person
       lives, such non-dwelling places as a business, government office, school, church, roller-
       skating rink, or bus station. Again, the breadth of the element in Missouri defeats
       comparability with the Kansas crime of burglary of a dwelling." 307 Kan. at 563-64.


The court held that the Kansas offense of burglary of a dwelling was not comparable to
Missouri second-degree burglary. The court further held that since Kansas did not have a
comparable offense to Missouri's second-degree burglary, the prior conviction had to be
classified as a nonperson felony. 307 Kan. at 564.


We apply the Wetrich test to the facts of this case.


       Walter challenges the classification of his 2007 Missouri conviction for second-
degree burglary and his 2015 Missouri conviction for first-degree burglary. In the
following chart, we compare the elements of the Missouri second-degree burglary statute
that Walter violated with the Kansas burglary statute in effect when Walter committed his
current crime.

                                                      5
K.S.A. 2015 Supp. 21-5807                                    Mo. Rev. Stat. § 569.170
"(a) Burglary is, without authority, entering into           "1. A person commits the crime of burglary in the
or remaining within any:                                     second degree when he knowingly enters
    (1) Dwelling, with intent to commit a felony,            unlawfully or knowingly remains unlawfully in a
theft or sexually motivated crime therein;                   building or inhabitable structure for the purpose of
    (2) building, manufactured home, mobile                  committing a crime therein.
home, tent or other structure which is not a                 "2. Burglary in the second degree is a class C
dwelling, with intent to commit a felony, theft or           felony."
sexually motivated crime therein; or
    (3) vehicle, aircraft, watercraft, railroad car or
other means of conveyance of persons or
property, with intent to commit a felony, theft or
sexually motivated crime therein.
". . . .
"(c) (1) Burglary as defined in:
    (A) Subsection (a)(1) is a severity level 7,
person felony, except as provided in subsection
(c)(2);
    (B) subsection (a)(2) is a severity level 7,
nonperson felony, except as provided in
subsection (c)(2);
    (C) subsection (a)(3) is a severity level 9,
nonperson felony, except as provided in
subsection (c)(2); and
    (2) subsection (a)(1), (a)(2) or (a)(3) with the
intent to commit the theft of a firearm is a severity
level 5, nonperson felony."




                                                         6
 K.S.A. 2015 Supp. 21-5111 Definitions                    Mo. Rev. Stat. § 569.010 Definitions
 "'(k) Dwelling' means a building or portion              "'Inhabitable structure' includes a ship, trailer,
 thereof, a tent, a vehicle or other enclosed space       sleeping car, airplane, or other vehicle or
 which is used or intended for use as a human             structure:
 habitation, home or residence."                          "(a) Where any person lives or carries on business
                                                          or other calling; or
                                                          "(b) Where people assemble for purposes of
                                                          business, government, education, religion,
                                                          entertainment or public transportation; or
                                                          "(c) Which is used for overnight accommodation
                                                          of persons. Any such vehicle or structure is
                                                          'inhabitable' regardless of whether a person is
                                                          actually present."




        In Kansas, burglary of a dwelling is classified as a person crime. See K.S.A. 2015
Supp. 21-5807(a)(1), (c)(1)(A). Just as in Wetrich, both the specific intent and structure
elements are broader in the Missouri statute. The Kansas statute requires "intent to
commit a felony, theft or sexually motivated crime therein." The Missouri statute requires
"the purpose of committing a crime therein." Unlawful entry with intent to commit any
misdemeanor that is not a theft or a sexually motivated crime would be burglary in
Missouri, but not in Kansas.


        In Kansas, burglary is a person crime if the structure entered was a dwelling. The
dwelling must be a structure "used or intended for use as a human habitation, home or
residence." In Missouri, the inhabitable structure element includes nondwelling places
"where people assemble for purposes of business, government, education, religion,
entertainment or public transportation."


        The elements of the Missouri crime are broader than the elements of the Kansas
crime. Therefore, we hold the Kansas offense of burglary of a dwelling is not comparable
to the Missouri second-degree burglary offense. Walter's second-degree burglary
conviction must be classified as a nonperson crime. We now look at the second Missouri
conviction.

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        In the following chart, we compare the elements of the Missouri first-degree
burglary statute that Walter was convicted under with the Kansas burglary statutes in
effect when Walter committed his current crime. This time we include the Kansas crime
of aggravated burglary as a possible comparable offense.


 K.S.A. 2015 Supp. 21-5807                                    Mo. Rev. Stat. § 569.160
 "(a) Burglary is, without authority, entering into           "1. A person commits the crime of burglary in
 or remaining within any:                                     the first degree if he knowingly enters
     (1) Dwelling, with intent to commit a felony,            unlawfully or knowingly remains unlawfully in
 theft or sexually motivated crime therein;                   a building or inhabitable structure for the
     (2) building, manufactured home, mobile                  purpose of committing a crime therein, and
 home, tent or other structure which is not a                 when in effecting entry or while in the building
 dwelling, with intent to commit a felony, theft or           or inhabitable structure or in immediate flight
 sexually motivated crime therein; or                         therefrom, he or another participant in the crime:
     (3) vehicle, aircraft, watercraft, railroad car or        (1) Is armed with explosives or a deadly
 other means of conveyance of persons or                            weapon or;
 property, with intent to commit a felony, theft or            (2) Causes or threatens immediate physical
 sexually motivated crime therein.                                  injury to any person who is not a
    "(b) Aggravated burglary is, without authority,                 participant in the crime; or
 entering into or remaining within any building,               (3) There is present in the structure another
 manufactured home, mobile home, tent or other                      person who is not a participant in the crime.
 structure, or any vehicle, aircraft, watercraft,             "2. Burglary in the first degree is a class B
 railroad car or other means of conveyance of                 felony."
 persons or property in which there is a human
 being with intent to commit a felony, theft or
 sexually motivated crime therein.
    "(c) (1) Burglary as defined in:
     (A) Subsection (a)(1) is a severity level 7,
 person felony, except as provided in subsection
 (c)(2);
     (B) subsection (a)(2) is a severity level 7,
 nonperson felony, except as provided in
 subsection (c)(2);
     (C) subsection (a)(3) is a severity level 9,
 nonperson felony, except as provided in
 subsection (c)(2); and
     (2) subsection (a)(1), (a)(2) or (a)(3) with the
 intent to commit the theft of a firearm is a severity
 level 5, nonperson felony.
     (3) Aggravated burglary is a severity level 5,
 person felony."




                                                          8
 K.S.A. 2015 Supp. 21-5111 Definitions                    Mo. Rev. Stat. § 569.010 Definitions
 "'Dwelling' means a building or portion thereof, a       "'Inhabitable structure' includes a ship, trailer,
 tent, a vehicle or other enclosed space which is         sleeping car, airplane, or other vehicle or
 used or intended for use as a human habitation,          structure:
 home or residence."                                      "(a) Where any person lives or carries on business
                                                          or other calling; or
                                                          "(b) Where people assemble for purposes of
                                                          business, government, education, religion,
                                                          entertainment or public transportation; or
                                                          "(c) Which is used for overnight accommodation
                                                          of persons. Any such vehicle or structure is
                                                          'inhabitable' regardless of whether a person is
                                                          actually present."




       Again, this comparison shows that the specific intent element is broader in the
Missouri statute. All types of burglary in Kansas, including aggravated burglary, require
an "intent to commit a felony, theft or sexually motivated crime therein." The Missouri
first-degree burglary statute requires "the purpose of committing a crime therein."


       Another case is helpful on this point. In State v. Moore, 307 Kan. 599, 412 P.3d
965 (2018), decided the same day as Wetrich, the court found that the Oregon burglary
statute was not comparable to Kansas burglary based on the specific intent element alone.
"If a person can commit burglary in another state, e.g., Missouri or Oregon, by
committing acts or possessing a mental state that would not even constitute the crime of
burglary in Kansas (much less a person burglary), it is counterintuitive to declare that the
offenses are comparable." 307 Kan. at 602. Oregon's burglary statute contained the same
language as Missouri—that the defendant intended to commit "a crime" therein.
Following this reasoning, we hold the Missouri first-degree burglary offense is not
comparable to aggravated burglary in Kansas.


       Since the elements are not identical or narrower, the offenses are not comparable
and Walter's first-degree and second-degree burglary convictions must be classified as
nonperson crimes.

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      We vacate Walter's sentence and remand with directions to resentence him and
classify those two Missouri convictions as nonperson crimes.




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