No. 113,545

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

CHARLES H. MOORE,

Appellant.

SYLLABUS BY THE COURT

1.

A defendant's criminal-history score affects the defendant's presumptive sentence 

under the Kansas Sentencing Guidelines Act. To determine how to score a defendant's 

prior conviction, the district court must determine whether to treat the conviction as a 

felony and whether to treat the conviction as a person offense.

2. 

Under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 

(2000), the Sixth Amendment to the United States Constitution requires that any fact that 

increases the penalty for a crime beyond the prescribed statutory maximum—other than 

the mere fact of a prior conviction—must be submitted to a jury and proved beyond a 

reasonable doubt. 

3.

In Kansas, a jury verdict, standing alone, authorizes only the sentence the 

defendant would receive if he or she had no prior convictions. The district court still may 

give the defendant a more severe sentence based on prior convictions under Apprendi, but

only if the district court does not need to make additional factual findings to do so.
2

4.

The district court determines whether a prior out-of-state conviction is a felony by 

looking at whether the crime was classified as a felony in the other state. 

5.

The district court determines whether a prior out-of-state conviction is a person 

offense by comparing the out-of-state statute under which the defendant was convicted to 

the comparable offense in effect in Kansas on the date the crime was committed. To be 

comparable, the crimes need only be comparable, not identical. 

6.

When determining whether the out-of-state conviction is a person offense, if the 

element of the crime that causes it to be a person offense is identical in both the 

comparable Kansas offense and the out-of-state offense for which the defendant was 

convicted, there is no problem under Apprendi and the offense can be classified as a 

person offense even if the two statutes don't match up perfectly in all other respects.

Appeal from Sedgwick County District Court; JOSEPH BRIBIESCA, judge. Opinion filed June 24, 

2016. Affirmed. 

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee. 

Before GARDNER, P.J., LEBEN, J., and HEBERT, S.J.

LEBEN, J.: In 2005, Charles Moore pled guilty to aggravated indecent liberties 

with a child. At sentencing, the district court classified his 1984 Oregon burglary 

conviction as a person offense, resulting in a higher criminal-history score and longer 
3

sentence than if it had been classified as a nonperson offense. In 2014, he filed a motion 

to correct an illegal sentence, which the district court denied. 

On appeal, Moore argues that in classifying his Oregon burglary conviction as a 

person offense, the district court violated his constitutional rights to a jury trial and due 

process because it made a factual finding that increased his sentence but wasn't proved

beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 

147 L. Ed. 2d 435 (2000); Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 

2288-89, 186 L. Ed. 2d 438 (2013). In State v. Dickey, 301 Kan. 1018, 1036-40, 350 P.3d 

1054 (2015), the Kansas Supreme Court relied on Descamps and Apprendi to determine 

that the classification of the defendant's prior burglary conviction as a person offense was 

unconstitutional. The prior-conviction statute in Dickey criminalized burglary of various 

structures but not specifically burglary of a dwelling. Since the classification of burglary 

as a person offense depends on whether it involves a dwelling, the district court had gone 

into impermissible factfinding when it found that the prior conviction involved a 

dwelling—a fact that hadn't been determined by the jury. 

But in this case, unlike in Dickey, Moore doesn't argue that the prior-conviction 

statute lacked a dwelling element. Instead, he argues that the Oregon statute and the 

comparable Kansas statute require different forms of criminal intent and that the district 

court in his case engaged in impermissible factfinding about his intent when it found the 

two statutes comparable. But the difference between the intent elements isn't relevant to 

the person classification of prior burglary convictions, and nothing in the Dickey decision 

requires that we look at Moore's intent to determine whether his Oregon crime was a 

person or a nonperson offense. We therefore affirm the district court, which denied 

Moore's motion to correct an illegal sentence.
4

FACTUAL AND PROCEDURAL BACKGROUND

In 2005, Moore pled guilty to one count of aggravated indecent liberties with a 

child. The presentence-investigation report listed Moore's criminal history as "A" based 

on his prior convictions, including a 1984 Oregon conviction for first-degree burglary of 

a dwelling. At sentencing, Moore initially challenged the validity of the burglary 

conviction, but he withdrew his objection when the State presented a certified copy of the 

conviction. 

The district court sentenced Moore to 494 months in prison based on his criminalhistory score and its finding that he was a persistent sex offender, which doubled his 

sentence. See K.S.A. 2004 Supp. 21-4704(j). He did not challenge his criminal-history 

score in the direct appeal of his conviction and sentence, and his appeal was dismissed. 

State v. Moore, No. 94,309, 2006 WL 903164, at *1 (Kan. App. 2006) (unpublished 

opinion). 

In December 2014, Moore filed a motion to correct an illegal sentence. He argued 

that under State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme 

Court order September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 

(2015), cert. denied 136 S. Ct. 865 (2016), the district court was required to recalculate 

his criminal-history score and reduce his sentence. The district court denied Moore's 

motion, finding that Murdock did not apply. And although Moore had not mentioned the 

case in his motion, the court noted that another case dealing with how to calculate 

criminal-history scores, State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), 

aff'd 301 Kan. 1018, 350 P.3d 1054 (2015), also didn't apply.

Moore has appealed to this court. 
5

ANALYSIS

Moore argues that the district court violated his constitutional rights and imposed 

an illegal sentence when it classified his 1984 Oregon burglary conviction as a person 

offense, increasing his criminal-history score and, therefore, his sentence. 

K.S.A. 22-3504 provides that "[t]he court may correct an illegal sentence at any 

time." The Kansas Supreme Court strictly defines an "illegal sentence" as "(1) a sentence 

imposed by a court without jurisdiction; (2) a sentence that does not conform to the 

applicable statutory provision, either in the character or the term of authorized 

punishment; or (3) a sentence that is ambiguous with respect to the time and manner in 

which it is to be served." Makthepharak v. State, 298 Kan. 573, 578, 314 P.3d 876 

(2013); State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). Defendants can use 

K.S.A. 22-3504 to challenge their criminal-history scores because such a challenge meets 

the second definition of an illegal sentence: it's a claim that a sentence doesn't conform to 

the applicable statutory provision. Dickey, 301 Kan. at 1034 (citing State v. Neal, 292 

Kan. 625, 631, 258 P.3d 365 [2011]). But as a general rule, defendants can't use K.S.A. 

22-3504 to challenge their sentences on constitutional grounds because a constitutional 

challenge doesn't fall within the narrow definition of an illegal sentence. State v. Lee, 304

Kan. 416, 417-18, ___ P.3d ___, 2016 WL 1729385 (2016) (motion to correct illegal 

sentence wasn't appropriate way to assert claim that sentence was unconstitutional); State 

v. Warrior, 303 Kan. 1008, Syl., 368 P.3d 1111 (2016) ("A motion to correct illegal 

sentence under K.S.A. 22-3504[1] is an improper procedural vehicle for a constitutional 

claim."). 

The State argues that Moore's claim is constitutional and can't be brought under 

K.S.A. 22-3504. See Lee, 304 Kan. at 417-18; Warrior, 303 Kan. 1008, Syl. But Dickey

held that when a constitutional challenge impacts a defendant's criminal-history score, 

that challenge meets the definition of an illegal sentence: if the criminal-history score is 
6

wrong for any reason, the sentence no longer complies with the sentencing statutes. 

Dickey, 301 Kan. at 1034 (citing Neal, 292 Kan. at 631); State v. Vasquez, 52 Kan. App. 

2d 708, 714-18, ___ P.3d ___, 2016 WL 1728688 (2016) (distinguishing claim that a 

sentencing statute is unconstitutional from a claim that a constitutional error caused an 

incorrect criminal-history score and illegal sentence); see State v. Luarks, 302 Kan. 972, 

975-76, 360 P.3d 418 (2015). Moore's claim can be brought under K.S.A. 22-3504. 

The State makes three other procedural arguments, but none keep us from 

considering Moore's appeal on the merits. First, Moore can raise his Dickey argument for 

the first time on appeal because K.S.A. 22-3504 allows the court to correct an illegal 

sentence at any time. Dickey, 301 Kan. at 1027. Second, Moore didn't waive his Dickey

argument by failing to object to his criminal-history score at sentencing: the Kansas 

Supreme Court rejected this argument in Dickey and held that a defendant's stipulation or 

failure to object at sentencing doesn't prevent the defendant from later challenging how 

prior convictions were classified for sentencing purposes. 301 Kan. at 1031. Third, the 

State argues that by pleading guilty, Moore waived his right to a jury at sentencing to 

determine any facts beyond those to which he pled that would increase his sentence. But 

the Kansas Supreme Court has said that under Apprendi, a defendant's guilty plea doesn't

constitute a waiver of his or her due-process rights, including the right to have facts that 

increase his or her sentence proved beyond a reasonable doubt. See State v. Cody, 272 

Kan. 564, 565-66, 35 P.3d 800 (2001); see also State v. Allen, 283 Kan. 372, 377-78, 153 

P.3d 488 (2007). Moore's argument is properly before this court. 

Whether a sentence is illegal and whether prior convictions are properly classified 

as person or nonperson crimes are questions of law that we review independently, 

without any required deference to the district court's conclusions. Luarks, 302 Kan. at 

976.
7

We begin our analysis with the Kansas Sentencing Guidelines Act. Under the Act, 

a defendant's sentence is based on two factors: the severity of the current offense and the 

criminal-history score of the defendant. See K.S.A. 2015 Supp. 21-6804(a) (nondrug 

grid); K.S.A. 2015 Supp. 21-6805(a) (drug grid). The severity of the current offense is 

simply set forth in Kansas' criminal statutes. See, e.g., K.S.A. 2015 Supp. 21-5807(c) 

(listing severity levels for different types of burglary). The criminal-history score, which 

is determined by the judge, can range from "I" (no criminal history or one misdemeanor) 

to "A" (three or more person felonies). K.S.A. 2015 Supp. 21-6809; K.S.A. 2015 Supp. 

21-6804(a). 

To calculate the criminal-history score, a court lists all of a defendant's prior 

convictions and then classifies each conviction in various ways, including whether it's a 

felony or a misdemeanor conviction and whether it's a person or a nonperson conviction. 

K.S.A. 2015 Supp. 21-6810. Crimes that cause physical or emotional harm to another 

person are generally person offenses and are weighted more heavily, while crimes that 

damage property are nonperson offenses and are weighted less heavily. Keel, 302 Kan. at 

574-75. So having more prior person convictions will result in a higher criminal-history 

score, and a higher criminal-history score will lead to a longer prison sentence. See 

K.S.A. 2015 Supp. 21-6804(a); K.S.A. 2015 Supp. 21-6809. For convictions that 

occurred in Kansas after the sentencing guidelines became effective in 1993, these 

classifications are easy, because they appear in the text of Kansas criminal statutes. Keel, 

302 Kan. at 574-75. But for all out-of-state convictions and for pre-1993 Kansas 

convictions, the classification process can be less straightforward. See, e.g., K.S.A. 2015 

Supp. 21-6811(d), (e). 

For an out-of-state conviction, the court makes two classifications after the State 

proves that the conviction exists. First, the court determines whether the prior conviction 

is a misdemeanor or a felony based on the law of the state where the defendant was 

convicted: "An out-of-state crime will be classified as either a felony or a misdemeanor 
8

according to the convicting jurisdiction." K.S.A. 2015 Supp. 21-6811(e)(2). And "[i]f a 

crime is a felony in another state, it will be counted as a felony in Kansas." K.S.A. 2015 

Supp. 21-6811(e)(2)(A). Second, the court determines whether the prior conviction is a 

person or a nonperson offense by comparing the prior-conviction statute to the 

"comparable offense" in effect in Kansas on the date the current crime was committed. 

K.S.A. 2015 Supp. 21-6811(e)(3). Kansas courts have said that "comparable offense"

means what it says: "'the offenses need only be comparable, not identical.'" State v. 

Williams, 299 Kan. 870, 873, 326 P.3d 1070 (2014) (quoting State v. Vandervort, 276 

Kan. 164, 179, 72 P.3d 925 [2003], overruled on other grounds by Dickey, 301 Kan. at 

1032).

Similarly, to classify pre-1993 Kansas convictions as person or nonperson, the 

court compares the prior-conviction statute to the "comparable offense" in Kansas in 

effect on the date the current crime was committed. K.S.A. 2015 Supp. 21-6810(d)(2); 

Keel, 302 Kan. at 581.

Finally, a special rule applies for classifying prior burglary convictions as person 

or nonperson: if the prior conviction involved burglary of a dwelling, it's a person crime, 

and if it didn't involve a dwelling, it's a nonperson crime. K.S.A. 2015 Supp. 21-6811(d); 

State v. Cordell, 302 Kan. 531, 534, 354 P.3d 1202 (2015). This distinction comes from

the justification behind the person/nonperson classification and the definition of 

"dwelling": crimes that cause physical or emotional harm to another person are generally 

person crimes and are weighted more heavily, Keel, 302 Kan. at 574-75, and whether a 

place is a "dwelling" turns on whether it is used or intended to be used as a place for 

people to live. K.S.A. 2015 Supp. 21-5111(k). So burglaries of dwellings are more likely 

to involve harm to a person and are person offenses. See K.S.A. 2015 Supp. 21-6811(d); 

State v. Roose, 41 Kan. App. 2d 435, 439, 203 P.3d 18 (2009).
9

With this review of Kansas sentencing statutes in mind, we turn now to the 

relevant constitutional principle. Apprendi held that because of the Sixth Amendment 

right to a jury trial, "[o]ther than the fact of a prior conviction, any fact that increases the 

penalty for a crime beyond the prescribed statutory maximum must be submitted to a 

jury, and proved beyond a reasonable doubt." 530 U.S. at 490. The "prescribed statutory 

maximum" is the punishment that's authorized under nothing but the facts found by the 

jury. State v. Gould, 271 Kan. 394, 410-11, 23 P.3d 801 (2001). In other words, a Kansas 

jury verdict, standing alone, authorizes only the sentence a defendant would receive if he 

or she has no criminal history—because the judge, and not the jury, determines a 

defendant's criminal-history score. Gould, 271 Kan. at 410-11. Under Apprendi, the court

still can use prior convictions to calculate a defendant's criminal-history score, which 

may increase a defendant's sentence. But the court can't increase a defendant's sentence 

based on anything except those prior convictions. In Gould, for example, the Kansas 

Supreme Court applied Apprendi to hold that upward-departure sentences—increasing

the maximum sentence that a defendant could receive based on aggravating facts found 

by the judge—were unconstitutional under Apprendi. 271 Kan. 394, Syl. ¶¶ 2-6.

Apprendi issues also arise, to a more limited extent, when a court looks beyond the

mere existence of a prior conviction to classify it in some way. In Descamps, for 

example, the Supreme Court considered how a court should classify prior convictions 

when increasing a defendant's sentence under a provision of the federal Armed Career 

Criminal Act. See Descamps, 133 S. Ct. at 2282. That Act prescribes a sentence increase 

for any felon who possesses a firearm and also has three prior convictions for a "violent 

felony" or a "serious drug offense." 18 U.S.C. §§ 922(g), 924(e) (2012). As federal courts 

have interpreted the Armed Career Criminal Act, a prior conviction qualifies as a "violent 

felony" only if the prior-conviction statute's elements are the same as, or narrower than, 

those of the generic offense. 133 S. Ct. at 2281. 
10

That rule is derived from the Supreme Court's interpretation of the Armed Career 

Criminal Act, not the Constitution, but it has "Sixth Amendment underpinnings," as it 

keeps sentencing courts from running afoul of Apprendi. Considering the Apprendi

principle underlying Descamps is illuminating because, broadly speaking, federal 

sentencing courts have to look beyond the existence of a prior conviction and determine 

whether it qualifies as a "violent felony" or a "serious drug offense" that will increase a 

defendant's sentence in the same way that Kansas sentencing courts have to look beyond 

the existence of a prior conviction and determine whether it is a person crime that will 

increase a defendant's sentence. See Descamps, 133 S. Ct. at 2281-82, 2288-89.

Specifically, in Descamps, the federal sentencing statute defined "violent felony" 

as burglary, arson, extortion, or another felony that includes an element of using physical 

force against a person. 18 U.S.C. § 924(e)(2)(B) (2012). To determine whether a prior 

burglary conviction counts as the type of burglary listed in the definition of "violent 

felony," the court compares the elements of the prior-conviction statute to the elements of 

the generic offense of burglary. 133 S. Ct. at 2281. To make this comparison without 

doing unconstitutional factfinding, federal sentencing courts use what the Supreme Court 

has called the categorical and modified-categorical approaches: both are ways to compare 

the elements of the prior conviction with elements of the generic offense without looking 

into the facts underlying the prior conviction. 133 S. Ct. at 2281. 

Under the categorical approach, the court looks only at the elements of the two 

offenses. 133 S. Ct. at 2281. The court uses the modified-categorical approach when the 

prior-conviction statute is divisible—in other words, when the statute provides alternative 

ways of committing the crime. 133 St. Ct. at 2281. Under the modified-categorical 

approach, the court can look at a limited set of documents (like indictments and jury 

instructions) to determine which of the alternatives the defendant was actually convicted 

of. 133 S. Ct. at 2281. So, the modified-categorical approach lets the court look at a few 

underlying facts from the prior conviction, but not for sentencing purposes—only to 
11

determine which parts of the prior-conviction statute it should compare to the generic 

offense. 133 S. Ct. at 2281.

For example, Descamps had a prior burglary conviction from California, and the 

California statute was broader than generic burglary because it didn't require proof of 

unlawful entry, while generic burglary requires breaking and entering of some kind. The 

California statute wasn't divisible because it provided only one way to commit the crime, 

but the sentencing court looked at the underlying facts of the prior conviction anyway to 

determine whether it had actually involved an unlawful entry. The Supreme Court 

reversed, holding that the modified-categorical approach could only be used if the priorconviction statute was divisible, to determine which part of the statute the defendant was 

convicted under; it couldn't be used to discover other facts about the prior conviction to 

make it fit the generic offense. 133 S. Ct. at 2283.

The sentencing court in Descamps had looked at the facts underlying the prior 

conviction to determine whether Descamps had actually committed an unlawful entry, 

even though he wasn't convicted of a crime that required proof of an unlawful entry. The 

court was ultimately trying to determine whether to classify Descamps' prior conviction 

as a "violent felony." 18 U.S.C. §§ 922(g), 924(e). And although the Supreme Court 

didn't discuss it directly, the unlawful entry, or the breaking-and-entering element, is 

arguably what makes burglary a violent felony. See 133 S. Ct. at 2282, 2288-89. So the 

sentencing court's factfinding about the breaking-and-entering element in particular 

would violate Apprendi: The sentencing court found a fact about the prior conviction and 

used that fact to classify the burglary as a violent felony and increase the maximum 

sentence that Descamps could receive.

Like in Descamps, Apprendi problems can arise when Kansas courts classify prior 

convictions as person or nonperson crimes. See Dickey, 301 Kan. at 1039-40. As 

explained earlier, this problem doesn't occur for prior convictions that occurred in Kansas 
12

after the Kansas Sentencing Guidelines Act became effective in 1993, because after that 

date, Kansas criminal statutes expressly stated whether they were person or nonperson 

crimes. But for out-of-state convictions and for pre-1993 in-state convictions, the district 

court has to determine whether they involved harm to a person and classify them as 

person or nonperson crimes. See K.S.A. 2015 Supp. 21-6811(d), (e)(5) (the facts required 

to classify prior burglary convictions and prior out-of-state convictions shall be 

established by the State by a preponderance of the evidence); see also K.S.A. 2015 Supp. 

21-6810(d) (consider and score pre-1993 Kansas convictions based on comparable 

current Kansas offense). This classification is usually made by comparing the priorconviction statute to the comparable Kansas statute in effect at the time the current crime 

was committed and using the classification in the comparable Kansas statute. Keel, 302 

Kan. at 581. 

This is what happened in Dickey. There, the district court classified the defendant's

1992 Kansas juvenile adjudication for burglary as a person felony. As discussed, prior 

convictions for burglary are scored as person or nonperson offenses based on whether the 

prior conviction involved burglary of a dwelling because that's where the potential for 

harm to a person occurs. K.S.A. 2015 Supp. 21-6811(d). The 1992 burglary statute didn't 

include a dwelling element. Dickey, 301 Kan. at 1039. So the sentencing court would 

have had to look at the facts underlying the 1992 conviction, determine that it involved a 

dwelling, and then use that fact to classify the conviction as a person felony and increase 

the defendant's sentence. This is exactly the type of "judicial factfinding that goes beyond 

merely finding the existence of a prior conviction or the statutory elements constituting 

that prior conviction" that Apprendi prohibits. 301 Kan. at 1021. So the Dickey court 

concluded that "classifying Dickey's prior burglary adjudication as a person felony 

violate[d] his constitutional rights." 301 Kan. at 1021.

Here, like in Dickey, Moore challenges the classification of a prior burglary 

conviction, but unlike in Dickey, his argument isn't about the dwelling element. Instead, 
13

he argues that his prior conviction was wrongly classified as a person offense because the 

Oregon burglary statute includes a broader intent element than the Kansas burglary 

statute in effect when Moore committed his current crime. Essentially, he argues that 

because of this statutory difference, the Kansas burglary statute isn't comparable to the 

Oregon statute. And if there is no comparable Kansas crime, the prior conviction must be 

classified as nonperson. See K.S.A. 2015 Supp. 21-6811(e)(3) ("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 conviction shall be classified as a nonperson crime.").

Because Moore's prior conviction comes from Oregon, the court had to classify it 

in two key ways after the State proved that it existed. First, the court had to determine

whether it was a misdemeanor or a felony, based on how Oregon classified it. K.S.A. 

2015 Supp. 21-6811(e)(2). Oregon classifies burglary as a felony, Or. Rev. Stat. §

164.225(2), so the sentencing court classified the prior conviction as a felony. K.S.A. 

2015 Supp. 21-6811(e)(2)(A). Second, the court had to classify the Oregon conviction as

a person or a nonperson crime by (a) determining the comparable offense in effect in 

Kansas on the date the current crime was committed, K.S.A. 2015 Supp. 21-6811(e)(3), 

and (b) looking specifically at whether the Oregon statute included a dwelling element 

because that's what makes burglary a person offense in Kansas. K.S.A. 2015 Supp. 21-

6811(d). 

When determining which Kansas statute is comparable to an out-of-state 

conviction, "'the offenses need only be comparable, not identical.'" Williams, 299 Kan. at 

873 (quoting Vandervort, 276 Kan. at 179). In other words, a comparable crime "must be 

'similar in nature and cover a similar type of criminal conduct.'" State v. Riolo, 50 Kan. 

App. 2d 351, 353, 330 P.3d 1120 (2014), rev. denied 302 Kan. ___ (2015) (quoting State 

v. Barajas, 43 Kan. App. 2d 639, 643, 230 P.3d 784 [2010]); see State v. Buoy, No. 

113,796, 2016 WL 1546422, at *4 (Kan. App. 2016) (unpublished opinion) (comparing 

first-degree criminal trespass in Arizona to the Kansas statutes for burglary and criminal 
14

trespass and determining that the Kansas criminal-trespass statute is more comparable).

In Williams, the defendant made essentially the same argument that Moore makes here:

that the Kansas offense wasn't comparable because the out-of-state statute required intent 

to commit any crime, while the Kansas statute required intent to commit a felony, theft, 

or sexual battery. Williams, 299 Kan. at 874. But the Williams court rejected that

argument, stating that "the evidence-based approach Williams promotes is not the 

approach used by Kansas courts. Our courts examine the out-of-state crime of conviction 

and attempt to find a comparable Kansas crime." 299 Kan. at 874. The court went on to 

note specifically: "In this legal review of criminal statutes, there is no review of the 

evidence surrounding the out-of-state conviction." 299 Kan. at 875.

Williams was decided before Dickey, but the statutory comparison that the 

Williams court describes is consistent with Dickey and doesn't implicate Apprendi

because the court looks only at the statutory elements and not at the facts underlying the 

prior conviction. Williams, 299 Kan. at 874-75. Indeed, this comparability analysis is 

completely consistent with the categorical approach described in Descamps and Dickey. 

Descamps, 133 S. Ct. at 2281; Dickey, 301 Kan. at 1037. A court violates Apprendi if (1) 

it makes factual findings about the prior conviction and (2) those findings increase the 

maximum sentence that a defendant could receive. 530 U.S. at 490; see also Alleyne v. 

United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) (extending 

Apprendi to hold that any fact that increases a prescribed statutory minimum sentence, 

not just a maximum one, must be proven to a jury). But in the comparable-offense 

analysis, the court looks only for comparable statutory elements; it doesn't make any 

factual findings about the prior conviction, so the Apprendi rule doesn't come into play. 

Williams, 299 Kan. at 874-75; see State v. Friesen, No. 113,495, 2016 WL 1546178, at 

*3 (Kan. App. 2016) (unpublished opinion) (describing Apprendi as a limit on the 

statutory comparison that prohibits a court from making factual findings beyond 

identifying statutory elements). 
15

So, having determined that the Oregon burglary is a felony, the court next has to 

determine which Kansas statute is comparable. K.S.A. 2015 Supp. 21-6811(e)(3). The 

comparable Kansas statute is the one that was in effect in 2004, when Moore committed 

the crimes at issue here. Keel, 302 Kan. at 581. (The relevant statutes haven't changed 

much in substance since then; the minor changes that have been made do not affect the 

arguments here. For the convenience of today's reader, then, we will cite to the most 

current statutes in this opinion.) Kansas burglary is: "without authority, entering or 

remaining within" either a dwelling or a nondwelling "with intent to commit a felony, 

theft or sexually motivated crime therein." (Emphasis added.) K.S.A. 2015 Supp. 21-

5807(a). Kansas burglary is a person crime if it involves a dwelling. K.S.A. 2015 Supp. 

21-6811(d). Kansas defines "dwelling" 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. 2015 Supp. 21-5111(k).

Oregon criminalizes burglary in the second degree as entering or remaining 

"unlawfully in a building with intent to commit a crime therein." (Emphasis added.) Or. 

Rev. Stat. § 164.215. But Moore concedes that he was convicted of first-degree burglary 

in Oregon under Or. Rev. Stat. § 164.225: 

"(1) A person commits the crime of burglary in the first degree if the person 

violates O.R.S. 164.215 and the building is a dwelling, or if in effecting entry or while in 

a building or in immediate flight therefrom the person: 

(a) Is armed with a burglar's tool as defined in O.R.S. 164.235 or a deadly 

weapon; or 

(b) Causes or attempts to cause physical injury to any person; or 

(c) Uses or threatens to use a dangerous weapon." (Emphasis added.)

Oregon defines "dwelling" as "a building which regularly or intermittently is occupied by 

a person lodging therein at night, whether or not a person is actually present." Or. Rev. 

Stat. §§ 164.205(2); 164.225. 
16

We note that the Oregon statute is divisible because it provides multiple ways to 

commit first-degree burglary: either it involved a dwelling, a burglar's tool, physical 

injury to another, or a dangerous weapon. See Descamps, 133 S. Ct. at 2281; Dickey, 301 

Kan. at 1037-38. But Moore doesn't argue that the district court erred when it classified

this conviction as a person crime because that classification was based on a factual 

finding that the Oregon burglary conviction involved a dwelling. If he had, we would 

remand the case for the district court to use the modified-categorical approach and 

examine documents related to the Oregon conviction to determine, if it could, under 

which of these alternatives Moore was convicted. See Descamps, 133 S. Ct. at 2281; 

Dickey, 301 Kan. at 1037-38. If he was convicted under any of the alternatives except the 

dwelling option, or if the district court couldn't determine which of the alternatives

formed the basis of the conviction, then the court would have to classify it as a nonperson 

crime. See Dickey, 301 Kan. at 1039; State v. Mullens, 51 Kan. App. 2d 1114, 360 P.3d 

1107, 1111 (2015). But if the modified-categorical approach showed that Moore was 

convicted of first-degree burglary based on the dwelling element, then the Oregon 

conviction would be properly classified as a person crime because the Oregon and 

Kansas definitions of "dwelling" are similar and both turn on the potential presence of a 

person. Compare Or. Rev. Stat. §§ 164.205(2), with K.S.A. 2015 Supp. 21-5111(k).

We do not remand for that purpose, however, because nowhere in his brief on 

appeal does Moore argue that the "dwelling" elements of the Oregon and Kansas statutes 

aren't identical, and he has not disputed that he was convicted of first-degree burglary of 

a dwelling in Oregon. Moore did initially challenge the classification of this conviction at 

sentencing, but after he and his counsel reviewed the certified record of the conviction, he 

dropped his challenge. And the presentence-investigation report, to which he dropped his 

objection, lists the conviction as "Burglary in the First Degree (Dwelling)."
17

Moore instead argues that his prior conviction was wrongly classified as a person 

crime because the Oregon burglary statute included a broader intent element than the 

comparable Kansas burglary statute, making the crimes not actually comparable and 

requiring a nonperson classification. See K.S.A. 2015 Supp. 21-6811(e)(3). Moore is 

correct that the Oregon intent element is broader than the Kansas intent element, but he is 

wrong that this difference comes into play in deciding whether his Oregon conviction 

was a person offense. 

Moore's argument is based on the broad rule recited in Descamps that the priorconviction statute must be identical or narrower than the elements of the generic offense 

to qualify as a violent felony and increase a defendant's sentence. 133 S. Ct. at 2281. But 

this identical-or-narrower rule is a federal rule governing interpretation of the Armed 

Career Criminal Act. See Taylor v. United States, 495 U.S. 575, 588, 110 S. Ct. 2143, 

109 L. Ed. 2d 607 (1990) (The Act "intended that the enhancement provision be triggered 

by crimes having certain specified elements, not by crimes that happened to be labeled 

'robbery' or 'burglary' by the laws of the State of conviction."). Indeed, the categorical 

approach existed before Apprendi was decided; only later did the Court in Descamps

recognize that it helped prevent Apprendi violations. State v. Buell, ___ Kan. App. 2d 

___, ___ P.3d ___ (No. 113,881, this day decided), slip. op at 16; see Descamps, 133 S. 

Ct. at 2288 (noting that classifying a prior conviction "would (at the least) raise serious 

[constitutional] concerns if it went beyond merely identifying a prior conviction"). This 

rule served as background in Descamps, in which the court compared a specific 

California burglary statute to the generic offense of burglary: Under the Armed Career 

Criminal Act, the California burglary statute had to be identical or narrower than generic 

burglary. 133 S. Ct. at 2281. 

But in Kansas, there's no statutory requirement that an out-of-state offense be 

identical or narrower than the comparable Kansas offense. Buell, slip op. at 15; Williams, 

299 Kan. at 873. And while the Kansas Supreme Court relied on Descamps to decide 
18

Dickey, it focused on the Apprendi principle, not on the identical-or-narrower rule. See 

Dickey, 301 Kan. at 1039-40. And it also didn't adopt the identical-or-narrower rule—

doing so would have required overruling past Kansas caselaw holding that the 

comparable Kansas offense doesn't have to be identical to the prior-conviction statute and 

that the question is whether the statutes prohibit similar conduct. See, e.g., Williams, 299 

Kan. at 873 (quoting Vandervort, 276 Kan. at 179); State v. Riolo, 50 Kan. App. 2d at 

353 (quoting Barajas, 43 Kan. App. 2d at 643).

So Kansas doesn't require comparable statutes to be identical—but is the 

difference between intent elements as meaningful as a difference in dwelling elements 

can be when classifying prior convictions as person or nonperson crimes? See Dickey, 

301 Kan. at 1038-40. In a word, no. 

Moore's Oregon conviction is definitely a felony. See Or. Rev. Stat. § 164.225(2); 

K.S.A. 2015 Supp. 21-6811(e)(2)(A). And prior felony convictions are either person or 

nonperson, with nonperson being the lower and default option. See, e.g., K.S.A. 2015 

Supp. 21-6811(e)(3) (if there's no comparable crime in Kansas, an out-of-state felony is a 

nonperson felony). So a nonperson classification doesn't implicate Apprendi because the 

classification doesn't increase a defendant's sentence—it only shows the fact of a prior 

conviction, as expressly permitted under Apprendi. 530 U.S. at 490. But changing the

classification to "person" will increase a defendant's sentence because crimes that cause 

physical or emotional harm to another person are weighted more heavily in the 

sentencing guidelines. Buell, slip op. at 7; Keel, 302 Kan. at 574-75; see K.S.A. 2015 

Supp. 21-6804(a); K.S.A. 2015 Supp. 21-6809.

For burglary convictions, the dwelling element is the only thing that separates 

person burglary from nonperson burglary; in other words, the level of intent required for 

nonperson burglary is the same as person burglary. K.S.A. 2015 Supp. 21-6811(d); see 

K.S.A. 2015 Supp. 21-5807; Buell, slip op. at 16. So intent is irrelevant to the person 
19

classification of Moore's Oregon burglary conviction. As such, there's no reason to use 

the Descamps categorical or modified-categorical approach to avoid an Apprendi

problem because the difference in the statutes isn't related to increasing Moore's sentence. 

Buell, slip op. at 16. 

We recognize that in some earlier cases, other panels of this court have reached 

the opposite conclusion and have remanded cases similar to this one for application of the 

categorical or modified-categorical approaches. These panels have concluded, although 

without much explanation, that Dickey adopted the identical-or-narrower rule from 

Descamps and that such a result was mandated by Apprendi, Descamps, and Dickey. 

Mullens, 51 Kan. App. 2d at 1119-20 (remanding for the modified-categorical approach 

on the intent elements in the Texas and Kansas burglary statutes); see State v. Gonzales, 

No. 107,798, 2016 WL 299042, at *7 (Kan. App. 2016) (unpublished opinion), petition

for rev. filed on other grounds February 22, 2016 (same for "in or on" element of the 

Arizona burglary statute); State v. Lewis, No. 113,438, 2016 WL 1546133, at *5 (Kan. 

App. 2016) (unpublished opinion) (same for " building or habitation " element of the 

Texas burglary statute); State v. Morris, No. 111,783, 2016 WL 299056, at *4-5 (Kan. 

App. 2016) (unpublished opinion), petition for rev. filed February 5, 2016 (affirming 

sentence because prior Kansas battery and assault conviction statutes were narrower than 

comparable Kansas statutes); see also State v. Smith, No. 113,297, 2016 WL 1391767, at 

*9-10 (Kan. App. 2016) (unpublished opinion), petition for rev. filed April 29, 2016

(remanding for modified-categorical approach to compare both the dwelling and intent 

elements of the South Carolina and Kansas burglary statutes); State v. Sturgis, No. 

112,544, 2015 WL 9286956, at *18 (Kan. App. 2015) (unpublished opinion), petition for 

rev. filed January 14, 2016 (same for intent element of Michigan home-invasion statute). 

Another panel of our court, in the Buell opinion also filed today, is in agreement 

with us that we need not look at additional documents and facts under the modifiedcategorical approach to determine which part of a divisible statute applied to the 
20

defendant unless one of those divisible alternatives has a meaningful impact on the 

person classification of the prior conviction. Buell, slip. op. at 16. The modifiedcategorical approach is just a tool to figure out which part of the statute the defendant was 

convicted under, nothing more. 133 S. Ct. at 2285. And if we don't need to know which 

part of the statute the defendant was convicted under, either to choose the comparable 

Kansas statute or to determine whether, within that comparable statute, the element 

relevant to the person classification matches the prior conviction statute, then we don't 

need to do the modified-categorical approach. Cf. Lewis, 2016 WL 1546133, at *5 (an

example of where the modified-categorical approach would be appropriate because the 

prior-conviction statute criminalized burglary of a "building or habitation" and only 

"habitation" fit the Kansas definition of "dwelling"). 

As a group, Mullens, Gonzales, Smith, and Sturgis (four of the six cases listed 

above) all involved a prior burglary or home-invasion conviction from another state. See, 

e.g., Mullens, 51 Kan. App. 2d at 1118. They began their analyses by pointing out the 

differences between the prior-conviction statute and the comparable Kansas statute. See, 

e.g., 51 Kan. App. 2d at 1116-17. In doing so, none of them discussed or cited the Kansas 

caselaw that says "comparable" doesn't mean "identical." See, e.g., 51 Kan. App. 2d at 

1118-20. Then they stated that Dickey adopted the Descamps analysis, noted that the outof-state prior-conviction statutes were divisible, and remanded for the district court to 

apply the modified-categorical approach to determine both (1) which section of the priorconviction statute the defendant was convicted under and (2) whether that section was 

identical to or narrower than the Kansas statute. See, e.g., 51 Kan. App. 2d at 1118-20.

They did this without regard for how or why Kansas courts classify crimes as person or 

nonperson, even though for burglary crimes, the only element relevant to the 

person/nonperson classification is whether the crime involved a dwelling. Accordingly, in 

our view, these cases reached the wrong result because they overlooked the Kansas 

definition of "comparable" and adopted the broad identical-or-narrower rule from 

Descamps. 
21

We do not lightly disagree with prior decisions reached by our court. But panels of 

our court are allowed to do so. See State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 

(2010). And such disagreement can alert the Kansas Supreme Court to conflicting rulings 

that it may need to resolve. See K.S.A. 20-3018(b) (providing that the Supreme Court 

may review Court of Appeals decision when in conflict with another). Or it may be that 

our court will collectively adopt the approach taken today in Buell and Moore. Time will 

tell on that front. 

In sum, to classify out-of-state convictions as person or nonperson offenses for 

sentencing purposes, first we compare statutory elements to determine which Kansas 

statute is "comparable." K.S.A. 2015 Supp. 21-6811(e). The Descamps categorical and 

modified-categorical approaches are consistent with this comparison and provide 

protection against unconstitutional factfinding because they direct courts to focus on 

statutory elements rather than underlying facts. See Dickey, 301 Kan. at 1038-39. Second, 

the court classifies the conviction as person or nonperson based on that comparable 

Kansas crime. K.S.A. 2015 Supp. 21-6811(e)(3). If the element of the comparable Kansas 

crime that causes it to be a person crime is narrower than that same element as it exists in 

the prior-conviction statute, we have an Apprendi problem like the dwelling issue in 

Dickey. 301 Kan. at 1039-40. But if other elements of the two statutes don't match up 

perfectly, there's no Apprendi problem because the court doesn't rely on those elements to 

make the person/nonperson classification. 

So here, Moore's Oregon burglary is comparable to a Kansas burglary, and the 

differences in the statutes aren't relevant to the person classification. Moore's Oregon 

burglary conviction was correctly classified as a person crime, and the district court

properly denied Moore's motion to correct an illegal sentence. 

We therefore affirm the district court's judgment.