There Is No Review of the Evidence Surrounding Prior Out-of-State Convictions When Determining Criminal History

Author: Randall Willnauer, Staff Editor

State v. Gales, No. 119,302 (Kan. Dec. 4, 2020)

Issue: Kansas courts score a defendant’s prior criminal history by determining, in part, whether a defendant’s out-of-state offenses were person or nonperson felonies. This is done by determining whether the out-of-state statute refers to a similar Kansas offense. In making this determination, is it proper for a court to consider anything beyond the language of the out-of-state statute?

Answer: No.  A court should only use the statutory language of the out-of-state statute to determine what is the properly comparable offense to consider under Kansas law. 

Facts: Gales was convicted in 2001 of murder and arson.  Gales was given a criminal history score of D, which signifies a defendant with one person felony and no nonperson felonies.  The prior felony was a 1976 California burglary under Cal. Penal Code § 459.  Gales challenged his Kansas sentence, arguing that the California burglary should have been classified as nonperson.

Discussion: Under the 1976 Cal. Penal Code § 459, the places a person could enter to perform a robbery were any building or vehicle.  The comparable Kansas statute, Kan. Stat. Ann. § 21-3715, separated the places one might enter into categories, making burglarizing a dwelling a person felony, but non-dwellings a nonperson felony. 

Lower courts examined these statutes in conjunction with the underlying facts of the California conviction to determine that Gales’ case was more applicable to the person felony Kansas statute.  The Court reversed for two reasons.  First, because California’s statute did not differentiate dwellings like houses from non-dwellings like vehicles, its application to the Kansas statute created an ambiguity which must be construed in the defendant’s favor.  Second, the Court determined that the only reason the lower court applied the person felony version of the Kansas statute was because it examined the underlying facts, not just the statutory language.  The Court previously determined that only the statutory language, not the underlying facts, should be considered when comparing offenses in different statutes.

Key Authorities: State v. Gensler, 423 P.3d 488 (Kan. 2018); State v. Williams, 326 P.3d 1070 (Kan. 2014).

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