1 No . 119,302
IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee ,

v. G REGORY L YNN G ALES , Appellant

.

SYLLABUS BY THE COUR T

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 opinio n by an appellate court of the S tate of Kansas, unless the opinion is issued while the sentence is pending a n 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. W hile true changes in the law cannot transform a once legal sen tence 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.2

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), t he S tate 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, compar able offenses under the Kansas C riminal C ode in effect on the date the current crime of conviction was committed shall be referred to. If the S tate 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, requir es the court to compare prior out

- of

- state crimes to the Kansas C riminal C ode in effect on the date the current crime of conviction was committed

. The Legislature clearly stated its intent that the amendment set for th in House Bill 2053 is procedural in nature and shall be applied retroactive ly.

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 must3

have identical or narrower elements th an the Kansas offense to which it is b eing 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; B RUCE T. G ATTERMAN , 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 A RNOLD

- B URGER , C .J., H ILL and S TANDRIDGE , J J

.

S TANDRIDGE , 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 adjud ication 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 impo sed.

F ACTUAL AND P ROCEDURAL B ACKGROUND 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 Califor nia juvenile burglary adjudication t hat 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.4

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 Califor nia burglary juvenile adjudication should have been classified as a nonperson offense for purposes of calculating his criminal history score when he was sen tenced. Had the prior juvenile adjudication been classified a s a nonperson offense, Gales claimed his sentence for C ount 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 A ct (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 S tate 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 Apprend i , t he 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

. 3 01 Kan. at 10 39

- 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, 278,5

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 sente ncing 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 w hen 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

e lements 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 unde rlying 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 (c iting Descamps , 570 U.S. at 2 57

- 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 reli ed 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 legal6

comparison of Gales' 1976 California juvenile adjudication for burglary with the comparable Kansas version of the burgla ry 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 ad

judication 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 rem and 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 proc edurally 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 Kansas7

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 a lthough neither party identified the California burglary statute, the State alleged in its ap pellate 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 cour t 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 v iolated 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 c ategorical 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 distr ict court with directions to make additional findings under Dickey I , 301 Kan. at 1039

- 40 , in order to determine w hether Gales ' prior California juvenile burglary adjudication should be classified as a person or nonperson offense for purposes of calculatin g his criminal history

. Gales II , 2016 WL 5844573, at *3.8

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 c orrect 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 f rom 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 Ka nsas 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 retroact ive 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 Supreme9

Court issued an opinion holding that the legality of a sentence is controll ed by the law in effect when the sentence was pronounced. See State v. N ewton , 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 addres sing 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 adjudicat io n 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 classif ied 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 look ed at historical d ocuments 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 t he modified categorical approach to classify his 1976 California juvenile burglary adjudication as a person offense for criminal history purposes

.10 A NALYSIS Gales asserts his sentence is illegal. Because the L egislature 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 applica ble 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. "

Gale s challenges his sentence based on the second definition of an illegal sentence: that h is sentence does not conform to the applicable statutory provision in terms of the punishment authorized. Specifically, Gales ar gues t hat 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) b y using a process that looked beyond the prior statute to the underlying facts of his prior California offense

. Gales a rgues 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 Ka nsas Supreme C ourt 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 claim11

that Dickey cannot be retroactively applied here be cause 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 sen tenced. Dickey held that, under the rule announced in Apprendi , a sentencing court is constitutionally prohibited from e nhanc ing 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 cou rt held the comparability classification process m ust be limited to comparing the elements of the prior statute of conv iction 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 a s 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 subsecti on (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 cla ssify prior burglary adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence. " K.S.A. 200 0 Supp. 21

- 4711(d)

.12

In 2011, K.S.A. 21

- 4711(d) was renumbered to K.S.A. 21

- 6811(d), but the language of the s ubsection remained the same. L. 2010 , c h. 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 statutor y 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 amen dments to K.S.A. 22

- 3504(c) became effective on May 2 3 , 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 cri minal 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. Al though the court resolved the Dicke y retroactivity issue under different facts than t he 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 that13

"the legality of a sentence under K.S.A. 22

- 3504 is controlled by the law in effect at the time the sent ence 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 moti on to correct an illegal sentence, neither party can avail itself of subsequent changes in the law. "

Murdock II expressly state s 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 clarifie s 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.

Relyin g on Murdock II , the Supreme Court resolved the issue presented in Tauer , McAlister , and Dawson by finding that Dickey di d not retroactively apply in tho se 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 414.14

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 constit utional rule announced in Apprendi and clarified by Descamps

. But the court ultimately d id 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 decid ed. 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

re ceive 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 : I s 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]l assifying Dickey's prior burglary adjudication as a person felony violates his constitutional rights as described under Descamps and Apprendi

. " ) ; s ee 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 Ju ne 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 that15

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 (s ame).

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 framewo rk 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 di strict court, for purposes of enhancing a defendant's sentence for a current conviction, makes findings of fact at sentencing that go16

beyond merely finding the existence of a prior conviction or the statutory elements that made up the prior conviction. Des camps , 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, 22 51

- 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 i s 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

- o f

- 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 nonp erson. 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 cl assified as a non

- person crime.

. . . The facts required to cla ssify out

- of

- state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence. " K.S.A. 200 3 Supp. 21

- 4711(e)

.17

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 , c h. 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 , c h. 5 , § 2 (House Bill 2053). The L egislature expressly deemed the amendment in House Bill 2053 to be retroactive . So , House Bill 205 3 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. S ee 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, t his 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 o ut

- of

- state convictions and juvenile adjudications as felonies and misdemeanors. Those c hanges are not relevant here. Although the 2019 Kansas Legislature made extensive amendments to the substance of K.S.A. 21

- 6811(e), i t 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. '" ).18

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 nonp erson. 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 Vand ervort until 2018, when it de cided Wetrich , 307 Kan. 552

. In Wet rich , 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 th at sentence cannot19

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 c ase 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 statuto ry 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 a s 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 class ified as a nonperson crime.

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

"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, te nt, vessel, railroad car, trailer coach . . . vehicle . . . when the doors of such vehicle are locked, aircraft . . . mine20

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." C al. 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 th e time Gales committed his current cri me 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 hom e, 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, th eft 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 there in." K.S.A. 21

- 3715

.

B urglary of a dwelling as described in subsection (a) was clas sified as a person felon y . However, burglary as defined in either subsection (b) or (c) was classified as a21

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 cr ime 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 tha t 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 pa rties, the Gales II panel ultimately vacated Gales' sentence and remanded the matter to the district court with directions to make addi tional findings under Dickey i n 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' pr ior 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 no n divisible, 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

. I f the California statute was divisible

— as the State specifically argued in its Gales II appellate brief

— the district22

court was required to determine whether any of the alternative versions of the prior crime correspond ed to the Kansas statute in e ffect at the time Gales committed his current crime of conviction. If at least one of the alternative versions of the prior offense correspond ed to the relevant Kansas statute, the sentencing court was permitted to use a modified categorical approach to determine w hich 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 purpo ses ; 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 introduc ed documents from California relating to Gales' prior adjudication. These documents included the a mended p etition 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 Pe nal Code."
The State also introduced the court's order finding Gales guilty o f the charges set forth in the p etition. Given the facts as charged in the a mended p etition and the California court order finding Gales guilty of those charges, the State argue d 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 provid e 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. P enal Code § 460, which is the23

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 enhanc ing 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 t he classification process set forth in Dickey , we first must determine whether Cal. Penal Code § 4 59 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 divis ible because Cal. Penal Code § 4 59 must be read in conjunction with Cal. Penal Code § 460 , which deem s 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 § 4 59 and found24

guilty under that statute. So, contrary to the State's argument, our divisibility ana lysis will focus solely on § 4 59

.

At the time of Gales ' prior adjudication , § 459 contained only one set of elements. See Cal. Penal Code § 4 59. 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 whe ther the Kansas statute in effect at the time the current crime was committed was compa rable 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 offens e 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, t heft or sexual battery therein."

We find the 1976 version of Cal. Penal Code § 4 59, 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 crimi nal history score. See State v. Williams , 303 Kan. 585, 595, 363 P.3d 1101 (2016) (affirming judgment as right for the wrong reasons).

Affirmed.