IS THERE A SPECIAL SENTENCING RULE FOR BURGLARY WHEN YOU HAVE A BURGLARY ON YOUR RECORD?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Pearce, 51 Kan. App. 2d 116 (2015).
This case addresses the following issues:
Is there a special sentencing rule for an individual who has previously been convicted of a burglary and is convicted of a subsequent residential burglary?
Are there any exceptions that may exclude previous convictions from analysis under the sentencing rule?
The issue in this case includes whether the district court erred by excluding the prior residential burglary conviction when determining the appellant’s criminal-history score on reliance that K.S.A. 21-6810(d)(9) prevents the court from counting this offense. Id. at 117. The existence of prior convictions of the defendant is important because in Kansas, the sentencing guidelines for determining sentences for felony offenses are based on two major factors under K.S.A. 2013 Supp. 31-6804(a), the severity level of the offense and the criminal-history score of the offender. Id. at 118. The sentencing guidelines impose a higher potential prison sentence for a more severe offense or greater criminal-history score. Id. The criminal-history-score runs from “A”, the most serious which is applicable to a person with three or more person felonies, to “I”, the least serious which is applicable to a person with no more than one misdemeanor conviction, under K.S.A. 2013 Supp. 21-6809. Id. Further, K.S.A. 2013 Supp. 21-6804(l) provides that “anyone who commits a residential burglary has a presumptive prison sentence if that person has previously committed any burglary – residential or otherwise.” Id. at 118-19. The specific issue in this case arises from the interpretation of K.S.A. 2013 Supp. 21-6810(d)(9) which states that “[p]rior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.” Id. at 120.
In this specific case, the appellant had six previous convictions which included two misdemeanor thefts and four burglaries before the current charge. Id. at 117. Of the four burglaries, three were of a nondwelling (nonperson felonies) and one residential burglary ( a person felony). Id. The appellant reached a plea agreement with the prosecutor for the current charge, pleading guilty to burglary of a dwelling, which was a severity-level-7 person felony, and felony theft of $1,000 or more, a severity-level-9 nonperson felony. Id. During sentencing, the appellant argued at the district court that one of his past burglary convictions should be used to trigger the recidivist-burglar penalty and should, therefore, not be used to calculate his criminal-history category. Id. at 119. The appellant also argued at the district court that even though any one of his previous burglary convictions could have triggered the sentencing statute, the residential-burglary conviction should be used due to the rule of lenity, under which the ambiguities in criminal statutes are construed in favor of the defendant. Id. The district court accepted the defendants argument and excluded the residential-burglary conviction, amounting to a criminal-history score of E rather than C. Id. Subsequently, the district court sentenced the appellant to 21 months for the burglary conviction and six months for theft to run concurrently. Id. On appeal, this court found that the lower court erred in the application of this statute. Id. at 121. This court found that upon basic reading of K.S.A. 2013 Supp. 21-6810(d)(9) all convictions are scored unless excluded, and it only excludes convictions that enhance the severity level of the crime, change the crime from misdemeanor to felony, or constitute an element of the offense. Id. at 120. When applying the statue to the appellant’s case, this court found that neither the severity level nor its felony status was impacted by any of his past convictions, and an element of the offense of burglary did not include having to have previously committed a burglary. Id. This court thus concluded that none of the appellant’s past burglary convictions should be excluded from criminal-history scoring under the statute. Id.