                                   MODIFIED OPINION1

                                         No. 119,172

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                              MICHAEL EDWARD HENDERSON,
                                       Appellant.


                               SYLLABUS BY THE COURT


1.
         Whether a sentence is illegal is a question of law over which an appellate court has
unlimited review.


2.
         Under K.S.A. 2018 Supp. 22-3504, the legality of a sentence is controlled by the
law in effect when the sentenced was pronounced. Thus, a sentence that was legal when
pronounced does not become illegal if the law later changes.


3.
         The Kansas Supreme Court's decision in State v. Wetrich, 307 Kan. 552, 412 P.3d
984 (2018), was a change in the law within the meaning of the definition of an illegal




1
    REPORTER'S NOTE: Opinion No. 119,172 was modified by the Court of Appeals on
July 9, 2019, in response to the State's Motion for Rehearing or Modification filed June
13, 2019.

                                              1
sentence in K.S.A. 2018 Supp. 22-3504(3). So if a defendant's sentence was legal when it
was pronounced, the sentence does not become illegal based on the holding in Wetrich.


        Appeal from Thomas District Court; GLENN D. SCHIFFNER, judge. Original opinion filed May 31,
2019. Modified opinion filed July 9, 2019. Affirmed.


        Carol Longenecker Schmidt and James M. Latta, of Kansas Appellate Defender Office, for
appellant.


        Rachel Lamm, county attorney, and Derek Schmidt, attorney general, for appellee.


Before MALONE, P.J., SCHROEDER, J., and MCANANY, S.J.


        MALONE, J.: Michael E. Henderson appeals the district court's decision revoking
his probation and ordering him to serve his underlying prison sentence. But this appeal is
not about the probation revocation order. For the first time on appeal, Henderson claims
his original sentence imposed on January 7, 2015, is illegal because the district court
erred in classifying his 2005 Mississippi conviction of burglary of a dwelling as a person
offense for criminal history purposes. In an unpublished memorandum opinion filed on
May 31, 2019, we vacated Henderson's sentence and remanded for resentencing with
directions to classify the Mississippi burglary conviction as a nonperson felony. State v.
Henderson, No. 119,172, 2019 WL 2306621 (Kan. App. 2019) (unpublished opinion).


        The State timely moved for rehearing or modification based on State v. Newton,
309 Kan. ___, ___ P.3d ___ (No. 116,098, 2019 WL 2399484, filed June 7, 2019).
Henderson responded and argued that we should either (1) deny the State's motion
because the State waived its newly asserted argument, or (2) even if we address the
State's newly asserted argument, we should still find that Henderson's Mississippi
burglary conviction should be scored as a nonperson felony. For the reasons stated in this
modified opinion, we grant the State's motion for rehearing or modification, and we now

                                                   2
conclude the district court did not err in classifying Henderson's 2005 Mississippi
burglary conviction as a person offense for criminal history purposes. As a result, we
reject Henderson's claim that his sentence is illegal.


       We will briefly state the facts. On September 19, 2012, the State charged
Henderson with one count of possession of methamphetamine with intent to distribute.
Henderson later pled guilty as charged. The amended presentence investigation (PSI)
report listed a 2005 Mississippi conviction for "burglary of a dwelling" and classified it
as a person felony resulting in a criminal history score of C. On January 7, 2015, based
on Henderson's criminal history score, the district court sentenced him to 68 months'
imprisonment but granted a dispositional departure to probation for 36 months.


       During his probation term, Henderson served two three-day "quick dips" for
probation violations as well as a 180-day intermediate prison sanction. The State later
moved to revoke Henderson's probation, and he stipulated to using controlled substances
and failing to report to his probation officer. On April 24, 2017, the district court revoked
Henderson's probation and ordered him to serve the remainder of his prison sentence. In
the journal entry of probation revocation, the district court did not award credit for time
served during Henderson's 180-day intermediate sanction. Henderson timely appealed.


       On appeal, Henderson first claims the district court erred in failing to award jail
credit for 105 days of the 180-day intermediate sanction he was ordered to serve while on
probation. The State has conceded this claim and filed a second nunc pro tunc journal
entry on January 24, 2019, which awarded credit for the extra 105 days. Thus, this issue
has been resolved in Henderson's favor and we need not address it further.


       Next, Henderson claims the district court erred in calculating his criminal history
score by classifying his 2005 Mississippi conviction of burglary of a dwelling as a person
felony instead of a nonperson felony, making his sentence illegal under K.S.A. 2018

                                              3
Supp. 22-3504. Whether a sentence is illegal is a question of law over which an appellate
court has unlimited review. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011).
Likewise, interpretation of a statute is a question of law subject to unlimited review. State
v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).


       Henderson claims his sentence is illegal under K.S.A. 2018 Supp. 22-3504, which
states in part:


                  "(1) The court may correct an illegal sentence at any time. . . .
                  ....
                  (3) '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." (Emphasis added.)


       We note that the 2019 Kansas Legislature amended K.S.A. 22-3504. L. 2019, ch.
59, § 15. The amendment became effective on publication in the Kansas Register on May
23, 2019. The statute now provides in part:


                  "(a) The court may correct an illegal sentence at any time while the defendant is
       serving such sentence. . . .
                  ....
                  "(c) For the purpose of this section:
                  (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 was 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 issued while the sentence is pending an
       appeal from the judgment of conviction.

                                                          4
               "(d) The amendments made to this section by this act are procedural in nature
       and shall be construed and applied retroactively." (Emphasis added.)


       Henderson is challenging the legality of his sentence for the first time on appeal
from his probation revocation. Generally, issues not raised before the district court cannot
be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). But
K.S.A. 2018 Supp. 22-3504(1) provides that "[t]he court may correct an illegal sentence
at any time." The 2019 amendment to K.S.A. 22-3504 provides that "[t]he court may
correct an illegal sentence at any time while the defendant is serving such sentence." L.
2019, ch. 59, § 15(a). Henderson is still serving his sentence. So because of the statutory
mandate that the court may correct an illegal sentence at any time the defendant is still
serving the sentence, we will address Henderson's claim for the first time on appeal from
his probation revocation. See State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054
(2015).


       We begin our analysis by reviewing the statutory scheme in Kansas for
determining a defendant's criminal history for sentencing in the revised Kansas
Sentencing Guidelines Act (KSGA), K.S.A. 2018 Supp. 21-6801 et seq. When
determining a defendant's criminal history score, all felony convictions that occurred
before the current sentencing are considered. K.S.A. 2018 Supp. 21-6810(a). Prior
burglary convictions are addressed in K.S.A. 2018 Supp. 21-6811(d). Under K.S.A. 2018
Supp. 21-6811(d), a prior burglary offense will only be classified as a person felony for
criminal history purposes if the burglary was committed within a dwelling. See K.S.A.
2018 Supp. 21-5807(a)(1) and (c)(1)(A)(i). However, whether Henderson's Mississippi
burglary was committed within a dwelling is not at issue in this appeal.


       Kansas' sentencing statutes also address out-of-state convictions in classifying the
offender's criminal history in K.S.A. 2018 Supp. 21-6811(e), which provides in part:



                                                  5
               "(e)(1) Out-of-state convictions and juvenile adjudications shall be used in
       classifying the offender's criminal history.
               (2) An out-of-state crime will be classified as either a felony or a misdemeanor
       according to the convicting jurisdiction.
               ....
               (3) 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."


       We again note that the 2019 Kansas Legislature amended K.S.A. 21-6811. L.
2019, ch. 59, § 13. But the Legislature did not express any intent that the 2019
amendment to this section shall be construed and applied retroactively. Neither party has
argued that the 2019 amendment to K.S.A. 21-6811 applies to Henderson's case, so we
will not address the amendment in this opinion.


       In our memorandum opinion on May 31, 2019, we applied the holding in State v.
Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), to determine the meaning of the term
"comparable offense" in K.S.A. 2018 Supp. 21-6811(e)(3). In Wetrich, our Supreme
Court held that "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 of the Kansas crime." 307 Kan. at 562. Essentially, "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. at 562. The Wetrich court emphasized that its
decision was based solely on statutory construction. 307 Kan. at 558. Based on the
purposes and objectives of the sentencing guidelines, the court found that the identical-
or-narrower test to determine comparable offenses is what the Kansas Legislature
originally intended when it passed the KSGA in 1993. 307 Kan. at 561-62.


                                                      6
       The State has never challenged Henderson's claim that the applicable Mississippi
burglary statute is broader than Kansas' burglary statute in effect when Henderson
committed his current crime of conviction. So applying Wetrich, we found that
Henderson's Mississippi burglary conviction should be classified as a nonperson felony
because there was no comparable offense in Kansas. Henderson, 2019 WL 2306621, at
*3.


       But the State's main argument in its original briefing was that our Supreme Court's
decision in Wetrich was a "change in the law" that occurred after Henderson's sentence
was pronounced on January 7, 2015. As a result, the State argued that Henderson's
sentence was not illegal under the 2017 amendment to K.S.A. 22-3504(3), which
provides that "[a] sentence is not an 'illegal sentence' because of a change in the law that
occurs after the sentence is pronounced."


       We at first rejected the State's argument, relying on this court's decision in State v.
Smith, 56 Kan. App. 2d 343, 430 P.3d 58 (2018), petition for rev. filed September 26,
2018. In Smith, this court held that the Kansas Supreme Court's decision in Wetrich was
not a change in the law within the meaning of the 2017 amendment to the definition of an
illegal sentence in K.S.A. 22-3504(3). 56 Kan. App. 2d at 354. Based on our finding that
the holding in Wetrich was not a change in the law that occurred after Henderson was
sentenced, and the court's reasoning in Wetrich that the identical-or-narrower test for
comparable offenses is what the Legislature always intended, we found that his sentence
was illegal on the date it was imposed because of the incorrect criminal history score. So
we vacated Henderson's sentence and remanded for resentencing with directions to
classify the Mississippi burglary conviction as a nonperson felony. Henderson, 2019 WL
2306621, at *3-4.




                                              7
       The State is now asking us to reconsider our ruling based on our Supreme Court's
decision in Newton, issued after we filed our original memorandum opinion on May 31,
2019. Actually our Supreme Court has recently filed three significant opinions affecting
whether Henderson's sentence is illegal, and we will address each decision in detail.


       We start with State v. Murdock, 309 Kan. 585, 439 P.3d 307 (2019) (Murdock II).
When Jimmy Lee Murdock was originally sentenced for his 2008 crimes, the district
court classified his pre-KSGA out-of-state robberies as person offenses by referring to the
existing comparable Kansas offense. But in State v. Murdock, 299 Kan. 312, 313, 319,
323 P.3d 846 (2014) (Murdock I), our Supreme Court reversed and remanded, holding
that when calculating a defendant's criminal history that includes pre-KSGA out-of-state
convictions, the out-of-state convictions must be classified as nonperson offenses. The
district court resentenced Murdock and his lower criminal history score led to a lesser
sentence.


       Six months later, our Supreme Court decided State v. Keel, 302 Kan. 560, Syl. ¶ 8,
357 P.3d 251 (2015), overruling Murdock I and holding that when classifying a prior out-
of-state conviction as a person or nonperson offense, "[t]he comparable post-KSGA
Kansas criminal statute is the one in effect at the time the current crime of conviction was
committed." Murdock II, 309 Kan. at 587. Also in 2015, the Kansas Legislature amended
K.S.A. 21-6811(e) to clarify that the classification of prior out-of-state convictions as
person or nonperson offenses must be based on the comparable Kansas offense in effect
when the current crime of conviction was committed. L. 2015, ch. 5, § 2(e). The
Legislature expressed its intent that the amendment was procedural in nature and shall be
construed and applied retroactively. L. 2015, ch. 5, § 2(j). Murdock II, 309 Kan. at 587-
88.


       The State then moved to correct the illegal sentence in Murdock's case, arguing
that under Keel and the 2015 legislation, Murdock's prior out-of-state crimes were person

                                              8
felonies. Murdock asserted that the law-of-the-case doctrine precluded finding his
sentence illegal and that his new sentence, legal when imposed, could not somehow
become illegal based on Keel and the new legislation, which he characterized as changes
in the law.


       The district court granted the State's motion and sentenced Murdock for the third
time, reinstating his original sentence. Murdock appealed and while his appeal was
pending, the 2017 Kansas Legislature amended K.S.A. 22-3504(3) to include the
language: "'A sentence is not an "illegal sentence" because of a change in the law that
occurs after the sentence is pronounced.'" Murdock II, 309 Kan. at 589. Murdock argued
that the new legislation applied retroactively, so Keel could not render his second
sentence illegal. Also while Murdock's appeal was pending, our Supreme Court decided
Wetrich, holding that for an out-of-state crime to be comparable to an offense under the
Kansas criminal code, 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. Murdock
II, 309 Kan. at 589. Murdock argued that under Wetrich, there were no Kansas crimes
comparable to his out-of-state crimes, so his out-of-state crimes must be classified as
nonperson offenses.


       Our Supreme Court identified the "threshold question" in Murdock II as: "[C]an a
once legal sentence become illegal when the law changes?" 309 Kan. at 589. The court
did not try to address Murdock's arguments about the 2017 amendment to K.S.A. 22-
3504 or the holding in Wetrich. But after discussing some of its prior decisions on the
meaning of an illegal sentence under K.S.A. 22-3504, the court held:


       "[T]he 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,


                                                    9
       for purposes of a motion to correct an illegal sentence, neither party can avail itself of
       subsequent changes in the law." 309 Kan. at 591.


       The Murdock II court determined that Murdock's second sentence was legally
imposed in accordance with the Murdock I mandate and that its legality was not affected
by the later change in the law in Keel. 309 Kan. at 593. Thus, the Murdock II court
reversed and remanded, directing the district court to reinstate Murdock's second
sentence. 309 Kan. at 593.


       Less than two months later, after we filed our memorandum opinion on May 31,
2019, our Supreme Court decided Newton, 309 Kan. ___, 2019 WL 2306621. Clyde
Newton was sentenced before Murdock I and his criminal history score was based in part
on a 1977 California robbery conviction that the district court classified as a person
felony. After our Supreme Court issued Murdock I, Newton moved to correct an illegal
sentence, arguing that his California robbery conviction should have been classified as a
nonperson crime. The district court disagreed, finding that Murdock I was not retroactive.
While Newton's appeal was pending before this court, Keel overruled Murdock I.


       Our court affirmed Newton's sentence, holding that his 1977 California robbery
conviction was correctly classified as a person felony because in Kansas, at the time of
Newton's current crime of conviction—the appropriate test under Keel—robbery was a
person offense and, although California's robbery statute is broader than Kansas' robbery
statute, the crimes were similar enough that they were comparable. Newton, 2019 WL
2399484, at *2. While Newton's petition for review was pending, our Supreme Court
decided Wetrich. The State argued before our Supreme Court that Wetrich was a change
in the law, so it had no effect given the 2017 amendment to K.S.A. 22-3504 stating that
changes in the law do not render a sentence illegal. Newton argued that Wetrich was not a
change in the law so that the holding in that case controlled his sentence.



                                                    10
       The Newton court did not resolve these arguments but instead relied on its recent
holding in Murdock II that under K.S.A. 22-3504, the legality of a sentence is controlled
by the law in effect when the sentence was pronounced. Newton, 2019 WL 2399484, at
*3. The court affirmed Newton's sentence, holding that when he was sentenced,


       "Kansas caselaw construed [the statute classifying prior out-of-state convictions] to mean
       '[f]or purposes of determining criminal history, the offenses need only be comparable, not
       identical.' '[T]he comparable offense' was 'the closest approximation' to the out-of-state
       crime. In Murdock II's wake, [Newton] cannot argue Wetrich makes his sentence, which
       was legal when it was imposed, illegal. [Citations omitted.]" 2019 WL 2399484, at *3.


       One week after its decision in Newton, our Supreme Court decided State v. Weber,
309 Kan. ___, ___ P.3d ___ (No. 113,472, 2019 WL 2479316, filed June 14, 2019).
Weber pled guilty to attempted robbery in 2007, and his criminal history included
Michigan convictions from 1976 and 1979. The district court scored the Michigan
convictions as person felonies. Like Newton, after Murdock I, Weber moved to correct
illegal sentence, arguing that his pre-KSGA Michigan convictions should have been
scored as nonperson offenses. The district court denied the motion.


       While Weber's appeal was pending before our court in 2015, the Kansas Supreme
Court issued Keel. Thus, as we did in Newton's appeal, this court affirmed Weber's
sentence, holding that the Michigan crimes were similar enough to the Kansas crimes to
be classified as person crimes, despite Weber's assertion that the Michigan statute was
broader. Weber, 2019 WL 2479316, at *2. While Weber's petition for review was
pending, our Supreme Court decided Wetrich, and Weber asserted in a supplemental brief
that Wetrich rendered his sentence illegal. The State did not respond to the argument or
file a supplemental brief. But after review was granted and the briefing deadlines passed,
it submitted a Rule 6.09 (2019 Kan. S. Ct. R. 39) letter noting the 2017 legislative
amendment to K.S.A. 22-3504 and argued that the amendment precluded application of
Wetrich.
                                                   11
       Our Supreme Court first held that the State had waived its statutory preclusion
argument by failing to timely assert it in a supplemental brief. Weber, 2019 WL 2479316,
at *4. The Weber court then applied Murdock II and, for the first time, expressly stated
that "Wetrich was a change in the law as contemplated by Murdock II." 2019 WL
2479316, at *4. The court observed that "[b]efore Wetrich, no Kansas case construed the
term 'comparable' as used in [the applicable Kansas statutes for determining criminal
history], to incorporate the identical-or-narrower requirement." 2019 WL 2479316, at *4.
The Weber court noted that prior Kansas caselaw had construed the statutes to mean that
an out-of-state crime need only be comparable, not identical to the Kansas crime, and
"Wetrich substituted the statute's new interpretation for the old one." 2019 WL 2479316,
at *4. So under Murdock II, because Weber's sentence was legal when it was imposed,
the court rejected Weber's claim that his sentence was now illegal. 2019 WL 2479316, at
*5. The Weber court did not mention or discuss the court's reasoning in Wetrich that its
decision in that case was based solely on statutory construction and that the identical-or-
narrower test to determine comparable offenses is what the Kansas Legislature originally
intended when it passed the KSGA in 1993. See Wetrich, 307 Kan. at 561-62.


       Based on the holdings in Murdock II, Newton, and Weber, it is clear that this court
erred when we found in our original memorandum opinion that our Supreme Court's
decision in Wetrich was not a change in the law within the meaning of the definition of
an illegal sentence in K.S.A. 2018 Supp. 22-3504(3). Because Wetrich changed the law,
the State now asserts that Henderson received a legal sentence on January 7, 2015, and
that sentence does not become illegal based on the holding in Wetrich.


       In his response to the State's motion, Henderson first argues that we should not
consider the State's new arguments because the State did not make the arguments in its
original briefing. He cites an unpublished decision from our court for the proposition that
a motion to reconsider is not a place to raise new issues or obtain a second chance to

                                             12
present a stronger case. He argues that the State failed to raise the specific issue decided
in Newton in its brief, so it may not raise the issue for the first time in its motion. Finally,
he points out the State's motion fails to argue that Henderson's Mississippi burglary
conviction is comparable to any Kansas crime under the applicable law in Newton.


       We reject Henderson's procedural arguments because the State's motion for
modification is mainly based on Kansas Supreme Court decisions issued after we filed
our memorandum opinion on May 31, 2019. This is not a situation like in Weber where
our Supreme Court found that the State had waived an argument for failure to timely file
a supplemental brief. It would be untenable for this court to remand Henderson's case to
the district court for resentencing with directions to classify the Mississippi burglary
conviction as a nonperson felony if, according to the most recent Kansas Supreme Court
precedent, the Mississippi burglary conviction was properly classified as a person felony.
And although the State has provided no comparable offense analysis in its motion for
modification, this issue presents a question of law that we can resolve by applying the
applicable Kansas law to Henderson's sentence on the date the sentence was imposed.


       Second, turning to the merits, Henderson argues that even if we apply the new
law, his 2005 Mississippi conviction of burglary of a dwelling should still be classified as
a nonperson felony. Henderson correctly points out that we need to decide whether his
sentence was legal when it was pronounced on January 7, 2015. So we will now proceed
to decide that question based on the law in effect at that time.


       On January 7, 2015, K.S.A. 2014 Supp. 21-6811 governing the determination of
an offender's criminal history classification stated in pertinent part:


               "(e) Out-of-state convictions and juvenile adjudications shall be used in
       classifying the offender's criminal history. . . . The state of Kansas shall classify the crime
       as person or nonperson. In designating a crime as person or nonperson, comparable


                                                     13
       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."


       Henderson was sentenced before Keel was decided and before the 2015 Kansas
Legislature amended K.S.A. 21-6811(e) to clarify that the classification of out-of-state
convictions as person or nonperson offenses must be based on the comparable Kansas
offense "in effect when the current crime of conviction was committed." See Keel, 302
Kan. 560, Syl. ¶ 8; L. 2015, ch. 5, § 2(e). Instead, when Henderson was sentenced,
Kansas courts applied the rule in State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667
(2010), that when calculating a defendant's criminal history that includes out-of-state
convictions, "the comparable offenses in Kansas shall be determined as of the date the
defendant committed the out-of-state crimes." Our record does not reflect the date that
Henderson committed burglary of a dwelling in Mississippi, but the PSI report in the
record shows that he was convicted under Miss. Code Ann. § 97-17-23 (2005).
Henderson agrees this is the applicable statute for his Mississippi conviction.


       Henderson argues that under Williams, we should compare the 2005 Mississippi
burglary of a dwelling statute with the comparable offense in Kansas in 2005. But we
note that the result would be the same even if we compare the 2005 Mississippi burglary
of a dwelling statute with the comparable offense in Kansas in effect on September 13,
2012, the date Henderson committed his current crime of conviction. The definition of
burglary of a dwelling did not change in Kansas from 2005 to 2012, and in each instance
the crime was classified as a person felony. Compare K.S.A. 21-3715(a) (Furse 1995)
with K.S.A. 2012 Supp. 21-5807(a)(1), (c)(1)(A). In fact, the definition of burglary of a
dwelling has not changed in Kansas since the KSGA went into effect in 1993, and the
crime has always been classified as a person felony. See K.S.A. 1993 Supp. 21-3715(a).


       As Henderson acknowledges, when he was sentenced Kansas caselaw construing
the statutory term "comparable offenses" made it clear that "the offenses need only be

                                                   14
comparable, not identical," and that the comparable Kansas offense was "the closest
approximation" to the out-of-state crime. See State v. Vandervort, 276 Kan. 164, 179, 72
P.3d 925 (2003). Relying on Vandervort, this court interpreted "comparable" to mean
"similar in nature and cover a similar type of criminal conduct." State v. Barajas, 43 Kan.
App. 2d 639, Syl. ¶ 2, 230 P.3d 784 (2010).


       So applying Williams and Vandervort as Henderson argues, we will compare the
2005 Mississippi burglary of a dwelling statute with the comparable offense in Kansas in
2005. Under Miss. Code Ann. § 97-17-23 (2005), burglary of a dwelling is "breaking and
entering the dwelling house or inner door of such dwelling house of another, whether
armed with a deadly weapon or not, and whether there shall be at the time some human
being in such dwelling house or not, with intent to commit some crime therein." In 2005,
the Kansas burglary statute 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." K.S.A. 21-3715(a) (Furse 1995). Burglary of a dwelling was person
crime in Kansas in 2005. K.S.A. 21-3715 (Furse 1995).


       Henderson argues that the 2005 Mississippi burglary of a dwelling statute is not
comparable to K.S.A. 21-3715(a) (Furse 1995) under the Vandervort test for comparable
offenses. He points out that the Mississippi burglary statute is broader than the Kansas
burglary statute as to the intent requirement because the Mississippi statute prohibits
entry into a dwelling to commit any crime while the Kansas statute only prohibits entry
into a dwelling to commit a felony, theft, or sexual battery. He also argues that the
Mississippi burglary statute is broader than the Kansas burglary statute because (1) there
is no requirement in Mississippi that the burglary must be committed without authority
and (2) the Mississippi burglary statute prohibits breaking into a room within the
dwelling house, while the Kansas burglary statute has no similar proscription.


                                              15
       Henderson's arguments all go to the fact that the elements of the Mississippi
burglary statute are broader than the elements of the Kansas statute. But he can only avail
himself to these arguments if we were using the Wetrich test to define comparable
offenses. As we have already found, the Wetrich test does not apply to Henderson's case
because the holding in Wetrich was a change in the law that occurred after Henderson
was sentenced. Under Vandervort, the offenses need only be comparable, not identical.
276 Kan. at 179. Based on our review, K.S.A. 21-3715(a) (Furse 1995) is the "closest
approximation" in Kansas to the 2005 Mississippi burglary of a dwelling statute. See
Vandervort, 276 Kan. at 179. The two statutes define crimes that are similar in nature and
cover a similar type of criminal conduct. Barajas, 43 Kan. App. 2d 639, Syl. ¶ 2.


       We find that Henderson's 2005 Mississippi conviction of burglary of a dwelling is
comparable to a conviction of burglary of a dwelling under the Kansas burglary statute in
effect in 2005. Because burglary of a dwelling was a person crime in Kansas in 2005, we
conclude the district court correctly scored Henderson's 2005 Mississippi conviction of
burglary of a dwelling as a person felony. As we said before, the result would be the
same even if we compared the 2005 Mississippi burglary of a dwelling statute with the
comparable offense in Kansas in effect on the date Henderson committed his current
crime of conviction. Henderson's sentence was legal when it was pronounced and does
not become illegal based on the holding in Wetrich. As a result, we reject Henderson's
claim that his sentence is illegal under K.S.A. 2018 Supp. 22-3504.


       Affirmed.




                                            16
