State v. Wetrich

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,361

STATE OF KANSAS,

Appellee,

v.

ROY D. WETRICH,

Appellant.

SYLLABUS BY THE COURT

1.

The classification of prior offenses for criminal history purposes involves the

interpretation of the revised Kansas Sentencing Guidelines Act; statutory interpretation is

a question of law subject to unlimited review.

2.

Prior out-of-state convictions are used in the calculation of a person's criminal

history score under the revised Kansas Sentencing Guidelines Act. The State of Kansas

shall classify the out-of-state conviction as a person or nonperson offense by referring to

comparable offenses under the Kansas criminal code in effect on the date the current

crime of conviction was committed. 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.

3.

For an out-of-state conviction to be comparable to an offense under the Kansas

criminal code, within the meaning of K.S.A. 2017 Supp. 21-6811(e)(3) (the amended

version of K.S.A. 21-4711[e]), the elements of the out-of-state crime cannot be broader

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than the elements of the Kansas crime. In other words, the elements of the out-of-state

crime must be identical to, or narrower than, the elements of the Kansas crime to which it

is being referenced.

4.

Kansas has no comparable offense to the Missouri crime of second-degree

burglary, and, therefore, a prior conviction for that Missouri offense must be classified as

a nonperson offense.

Review of the judgment of the Court of Appeals in an unpublished opinion filed January 15,

2016. Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed March 9, 2018. Judgment

of the Court of Appeals vacating the sentence and remanding for resentencing is affirmed. Judgment of

the district court is reversed, sentence is vacated, and case is remanded with directions.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for

appellant.

Shawn E. Minihan, assistant district attorney, argued the cause, and Steven J. Obermeier, senior

deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were

with him on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: The State of Kansas seeks review of the Court of Appeals'

determination that the district court incorrectly sentenced Roy D. Wetrich by

misclassifying a 1988 Missouri burglary conviction as a person felony and, thereby,

miscalculating his criminal history score as C, when it should have been E. The State

contends that the panel did not consider all of the applicable Missouri statutory

provisions and that it ignored the precedent set by an earlier Court of Appeals opinion.

We affirm the result reached by the Court of Appeals, vacate the sentence imposed, and

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remand for the district court to impose a correct sentence for a person with a criminal

history score of E.

FACTUAL AND PROCEDURAL OVERVIEW

For acts committed between January 1, 2009 and April 24, 2009, Wetrich was

convicted by a Johnson County jury of kidnapping, two counts of aggravated assault,

criminal possession of a firearm, possession of marijuana, violation of a protective order,

domestic battery, and intimidation of a witness. The district court sentenced Wetrich to a

controlling sentence of 124 months in prison, based on a criminal history score of C.

Before sentencing, Wetrich attempted to challenge the person-felony classification

of a prior 1988 Missouri conviction for burglary used in his criminal history score. The

district court ruled that, because Wetrich had previously unsuccessfully challenged the

classification of that Missouri conviction in a different case, he was collaterally estopped

from the current challenge. The Court of Appeals reversed that ruling and ordered the

district court to conduct a resentencing hearing at which Wetrich could challenge the

classification of the prior Missouri conviction. State v. Wetrich, 49 Kan. App. 2d 34, 43-

44, 304 P.3d 346, rev. denied 298 Kan. 1208 (2013).

At the resentencing hearing on remand, Wetrich testified that the structure he

burglarized in Missouri was a mobile home but that, at the time of entry, the structure

was not being used as a residence and was unoccupied. Nevertheless, the district court

compared the definition of "dwelling" in K.S.A. 21-3110(7) with Missouri's statutory

definition of "inhabitable structure" and found them to be sufficiently analogous to find

the Missouri burglary conviction comparable to Kansas' crime of burglary of a dwelling.

Consequently, the district court held that Wetrich's prior Missouri burglary conviction

was properly scored as a person felony, resulting in a total criminal history score of C.

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Again, Wetrich appealed to the Court of Appeals, and that court again disagreed

with the district court. Applying State v. Dickey, 301 Kan. 1018, 1021, 350 P.3d 1054

(2015), the panel first compared the Missouri burglary statute, Mo. Rev. Stat. § 569.170

(1986), with the Kansas burglary statute in effect when Wetrich committed his current

crime of conviction in 2009, K.S.A. 21-3715. It found that the Missouri statutory

definition of "inhabitable structure" was broader than the K.S.A. 21-3110(7) definition of

"dwelling" and that the Missouri language contained no element concerning the use of

the structure as a dwelling. State v. Wetrich, No. 112,361, 2016 WL 197808, at *4-5

(Kan. App. 2016) (unpublished opinion).

The panel noted that Mo. Rev. Stat. § 569.170 was a divisible statute because it

provided alternative elements for committing the crime. Therefore, pursuant to Descamps

v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), the district

court might have been permitted to engage in a limited review of documents to determine

whether the Missouri conviction matched a Kansas crime. But in this case, the panel

determined that none of the alternative elements in the Missouri statute matched the

Kansas definition of "dwelling," and the district court could not look outside those

statutory elements to engage in the type of judicial fact-finding which was held to be

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

(2000), and Descamps. Wetrich, 2016 WL 197808, at *5. Accordingly, the Court of

Appeals vacated Wetrich's sentence and remanded for resentencing with the correct

criminal history score of E. 2016 WL 197808, at *5-6.

The State petitioned for review, asserting that the panel had cited to an incorrect

section of the Missouri statute and pointing out that in State v. Hill, No. 112,545, 2015

WL 8590700 (Kan. App. 2015) (unpublished opinion), rev. granted 305 Kan. 1255

(2016), another Court of Appeals panel had previously reached a different result on the

comparability of the Missouri burglary statute. Given a split of authority among Court of

Appeals panels, we granted the State's petition.

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CLASSIFICATION OF MISSOURI BURGLARY CONVICTION UNDER KSGA

Wetrich was convicted of on-grid crimes, meaning that each of his presumptive

sentences under the revised Kansas Sentencing Guidelines Act (KSGA) was contained in

a two-dimensional sentencing grid, composed of a vertical axis reflecting the severity

level of the crime committed (scored from 10 to 1 on the nondrug offense grid and from 4

to 1 on the drug offense grid) and a horizontal axis reflecting the defendant's history of

prior criminal convictions (scored from I to A). K.S.A. 2008 Supp. 21-4704 (nondrug

offense grid); K.S.A. 2008 Supp. 21-4705 (drug offense grid). Here, the crime severity

level is not in dispute, but rather the issue on appeal involves the calculation of Wetrich's

criminal history score that is employed on the horizontal axis of the sentencing grid.

Specifically, the question is whether an out-of-state conviction is to be classified as a

person felony or as a nonperson felony because crimes classified as person felonies are

given the most weight in the criminal history calculus. K.S.A. 2008 Supp. 21-4704; see

K.S.A. 21-4710.

Standard of Review

Classification of prior offenses for criminal history purposes involves

interpretation of the KSGA; statutory interpretation is a question of law subject to

unlimited review. State v. Keel, 302 Kan. 560, 571-72, 357 P.3d 251 (2015). Whether a

district court's application of the KSGA violated constitutional rights presents a question

of law subject to unlimited review. Dickey, 301 Kan. at 1036.

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Analysis

In calculating a criminal history score, all felony convictions and adjudications

and certain misdemeanor convictions and adjudications, occurring prior to the current

sentencing, are considered. K.S.A. 21-4710(a). Prior burglary convictions are specifically

addressed in K.S.A. 2017 Supp. 21-6811(d)(1) (previously K.S.A. 21-4711[d][1]), which

provides for the scoring as a person felony of any prior conviction or adjudication that

"was classified as a burglary as defined in K.S.A. 21-3715(a), prior to its repeal, or

K.S.A. 2017 Supp. 21-5807(a)(1), and amendments thereto." We considered the

application of the prior burglary provision in Dickey.

Dickey noted that,

"in order to classify a prior burglary conviction or adjudication as a person offense under

K.S.A. 2014 Supp. 21-6811(d), a sentencing court must find that the prior burglary

involved a 'dwelling,' i.e., '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. 2014 Supp. 21-5111(k)." 301 Kan. at 1021.

But in order to avoid the constitutional prohibition against enhancing a sentence through

judicial fact-finding announced in Apprendi, Dickey held that the dwelling requirement

must have been an element of the prior offense, rather than a fact found by the sentencing

court in the current case. 301 Kan. at 1036, 1039. Because Dickey had a prior juvenile

adjudication for burglary in 1992, when the definition of the offense did not include an

element requiring the burglarized structure to be a dwelling, the prior offense had to be

scored as a nonperson felony. 301 Kan. at 1039-40. Dickey also relied on the

methodology employed by the Supreme Court in Descamps to constitutionally construe a

federal statute. 301 Kan. at 1039.

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Here, however, another subsection of K.S.A. 2017 Supp. 21-6811 (the amended

version of K.S.A. 21-4711) applies. Out-of-state convictions are specifically addressed in

K.S.A. 2017 Supp. 21-6811(e), to-wit:

"(e)(1) Out-of-state convictions and juvenile adjudications shall be used in

classifying the offender's criminal history.

(2) An out-of-state crime will be classified as either a felony or a misdemeanor

according to the convicting jurisdiction:

(A) If a crime is a felony in another state, it will be counted as a felony in

Kansas.

(B) If a crime is a misdemeanor in another state, the state of Kansas shall refer to

the comparable offense in order to classify the out-of-state crime as a class A, B or C

misdemeanor. If the comparable misdemeanor crime in the state of Kansas is a felony,

the out-of-state crime shall be classified as a class A misdemeanor. If the state of Kansas

does not have a comparable crime, the out-of-state crime shall not be used in classifying

the offender's criminal history.

(3) The state of Kansas shall classify the crime as person or nonperson. In

designating a crime as person or nonperson, comparable offenses under the Kansas

criminal code in effect on the date the current crime of conviction was committed shall be

referred to. If the state of Kansas does not have a comparable offense in effect on the date

the current crime of conviction was committed, the out-of-state conviction shall be

classified as a nonperson crime."

Wetrich's burglary in Missouri was classified as a felony in that state, making it a

felony here. K.S.A. 2017 Supp. 21-6811(e)(2)(A) [formerly K.S.A. 21-4711(e)]. As

noted above, on the date the current crime of conviction was committed, the only

burglaries in Kansas that were classified as person crimes had to involve entering into or

remaining within a dwelling. See K.S.A. 21-3715. Consequently, in order to score

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Wetrich's Missouri burglary conviction as a person felony for Kansas criminal history

purposes, the Missouri crime must be comparable to Kansas' burglary of a dwelling

offense at the time the current crime of conviction was committed. See Keel, 302 Kan. at

590 ("Thus, the classification of a prior conviction or juvenile adjudication as a person or

nonperson offense for criminal history purposes under the KSGA is determined based on

the classification in effect for the comparable Kansas offense at the time the current crime

of conviction was committed.").

The conflict among Court of Appeals panels applying 21-6811(e)(3) focuses on

how similar the elements of the foreign crime must be to those of the Kansas reference

crime in order to meet the statutory requirement of comparability. Dickey cited to the

Descamps language which said that, to be a sentence-enhancing predicate offense, the

elements of the prior conviction had to be the same as, or narrower than, the generic

offense at issue in that case. Dickey, 301 Kan. at 1037. The clear implication in Dickey is

that constitutional constraints would 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.

On the other hand, at least one panel of the Court of Appeals has opined that,

although Dickey reached the correct result based on Apprendi grounds, the "identical-or-

narrower rule is a federal rule governing interpretation of the Armed Career Criminal

Act," rather than being required by constitutional constraints. State v. Moore, 52 Kan.

App. 2d 799, 813-14, 377 P.3d 1162 (2016). Further, Moore declared that "there's no

[Kansas] statutory requirement that an out-of-state offense be identical or narrower than

the comparable Kansas offense" and observed that Dickey had not overruled "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)." 52

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Kan. App. 2d at 813-14. The Vandervort court suggested that the Kansas crime with "the

closest approximation" to the out-of-state crime was a comparable offense. State v.

Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003).

Moore did not cite to Mathis v. United States, 579 U.S. ____, 136 S. Ct. 2243, 195

L. Ed. 2d 604 (2016), presumably because Mathis was filed just one day before Moore.

Mathis held that, because the elements of Iowa's burglary law were broader than those of

generic burglary, Mathis' prior Iowa burglary convictions could not be used to enhance

his sentence under the federal Armed Career Criminal Act (ACCA). 136 S. Ct. at 2257.

In the process, Mathis opined that the strict elements focus was not only required by the

language of the federal statute, but also because of "serious Sixth Amendment concerns"

and fairness to defendants. 136 S. Ct. at 2252-53. Mathis also 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. 136 S. Ct. at 2256.

Nevertheless, the extent to which the federal identical-or-narrower rule is

constitutionally mandated after Apprendi, Descamps, and Mathis is a question we need

not decide today. We can resolve the issue presented here on the basis of statutory

interpretation. See Wilson v. Sebelius, 276 Kan. 87, 91, 72 P.3d 553 (2003) ("Appellate

courts generally avoid making unnecessary constitutional decisions. Thus, where there is

a valid alternative ground for relief, an appellate court need not reach constitutional

challenges to statutes."); see also State ex rel. Schmidt v. City of Wichita, 303 Kan. 650,

658, 367 P.3d 282 (2016) ("Here, by first deciding the issue of compliance with statutory

procedures, we eliminate the need to determine whether the proposed ordinance is

constitutional under the Home Rule Amendment."); State v. Sharp, 305 Kan. 1076, 1077-

78, 390 P.3d 542 (2017) (affirming Court of Appeals holding that a police officer lacked

reasonable suspicion to conduct traffic stop but vacating holding regarding

constitutionality of statute because "'[a]ppellate courts generally avoid making

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unnecessary constitutional decisions. . . . [W]here there is a valid alternative ground for

relief, an appellate court need not reach a constitutional challenge.'" [quoting Schmidt,

303 Kan. 650, Syl. ¶ 3]).

The touchstone of statutory construction is that legislative intent governs where it

can be ascertained. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). Our

first attempt at ascertaining legislative intent involves reading the language of the statute,

giving common words their ordinary meanings. State v. Phillips, 299 Kan. 479, 495, 325

P.3d 1095 (2014). But where the statute's language or text is unclear or ambiguous, we

can employ canons of construction or legislative history to divine the Legislature's intent.

299 Kan. at 495.

To reiterate, the Kansas statutory provision that we are construing states, with

emphases added:

"(3) The state of Kansas shall classify the crime as person or nonperson. In

designating a crime as person or nonperson, comparable offenses under the Kansas

criminal code in effect on the date the current crime of conviction was committed shall be

referred to. If the state of Kansas does not have a comparable offense in effect on the date

the current crime of conviction was committed, the out-of-state conviction shall be

classified as a nonperson crime." (Emphases added.) K.S.A. 2017 Supp. 21-6811(e)(3).

We first consider whether the common meaning of the adjective "comparable"

renders this provision unclear or ambiguous. Turning to the usual sources for the

common meaning of common terms—dictionaries and thesauruses—we note some

variances in the meaning of comparable. For instance, Webster's New World College

Dictionary 303 (5th ed. 2016) defines "comparable" as: "1. that can be compared 2.

worthy of comparison." That broad, amorphous definition would support the notion that

any approximation of the prior offense might be comparable. But, then, the definition in

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Webster's II New College Dictionary 228 (1999) seems to require more equivalency, to-

wit: "1. Capable of being compared. 2. Worthy of comparison. 3. Like or equivalent."

The entry for the adjective "comparable" in Roget's II The New Thesaurus 182 (3d

ed. 1995), advances the concept of sameness, to-wit: "Possessing the same or almost the

same characteristics: alike, analogous, corresponding, equivalent, like, parallel, similar,

uniform." Finally, Burton's Legal Thesaurus 95 (3d ed. 1998), offers two entries for the

word, "comparable," indicating that the word can carry different meanings. One entry is

defined as "[c]apable of comparison" and the other entry is defined as "[e]quivalent." The

first entry recites as synonyms such words as "akin, alike, analogous, . . . approximate,

. . . close," which would more closely support the State's close-enough-for-horseshoes-

and-hand grenades view of comparable. In contrast, the second entry recites such

synonyms as "coequal, . . . identical, interchangeable, matched, . . . without distinction."

Obviously, the second definition of comparable more closely supports the concept of

identical-or-narrower elements.

With this ambiguity in the meaning of comparable, it is appropriate for us to turn

to legislative history. Globally, the KSGA was a significant change in the way that

criminal defendants are sentenced. In State v. Grady, 258 Kan. 72, 89-90, 900 P.2d 227

(1995), we recited the Legislature's stated principles behind the seismic shift to the

KSGA:

"The Kansas Legislature did not include in the statutes the purposes and

objectives of the guidelines. According to the legislative history, the Kansas Sentencing

Guidelines Act (KSGA), K.S.A. 1994 Supp. 21-4701 et seq., is based on the following

principles:

"1. Prison space should be reserved for serious/violent offenders who present a

threat to society.

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"2. The degree of sanctions imposed should be based on the harm inflicted.

"3. Sanctions should be uniform and not related to socioeconomic factors, race,

or geographic location.

"4. Penalties should be clear so everyone can understand exactly what has

occurred once sentence is imposed.

"5. The State has an obligation to rehabilitate those incarcerated, but persons

should not be sent to prison solely to gain education or job skills, as these programs

should be available in the community.

"6. The system must be rational to allow policy makers to allocate resources.

Coates, Summary of the Recommendations of the Sentencing Commission, p. 6 (Report

to Senate Committee on Judiciary, January 14, 1992). See also Kansas Sentencing

Guidelines Implementation Manual, p. i-1-2 (1992).

"Additionally, this court has recognized that the purpose of the retroactivity provision of

the KSGA is to reduce prison overcrowding while protecting public safety. The

guidelines were intended to standardize sentences so that similarly situated offenders

would be treated the same, limiting the effects of racial or geographic bias. State v.

Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994)." (Emphasis added.)

Subsequently, we reiterated the principle of equal treatment, free of racial and

geographic bias. See State v. Huerta, 291 Kan. 831, 836, 247 P.3d 1043 (2011) ("[T]he

principal point of enacting the KSGA was '"to standardize sentences so that similarly

situated offenders would be treated the same, thus limiting the effects of racial and

geographic bias."' [Citations omitted.]"); State v. Roderick, 259 Kan. 107, 112, 911 P.2d

159 (1996) ("The guidelines were intended to standardize sentences so that similarly

situated offenders would be treated the same, limiting the effects of racial or geographic

bias."). The legislative intent to treat people the same is also arguably reflected in the

specific provision of K.S.A. 2017 Supp. 21-6811(e)(3) that defaults to a nonperson

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classification where we do not know of a comparable Kansas offense. In any event, the

elimination of unwarranted disparity was clearly an overarching goal of the KSGA.

Allowing sentencing courts to utilize an imprecise, ad hoc comparison of out-of-

state crimes to Kansas offenses under K.S.A. 2017 Supp. 21-6811(e)(3) to enhance the

current Kansas sentence promotes, rather than curtails, the disparate treatment of

similarly situated persons that the KSGA sought to cure. Moreover, statutes fixing

sentences that are so vague that the test for enhancement devolves into "guesswork and

intuition" can run afoul of due process considerations. See Johnson v. United States, 576

U.S. ____, 135 S. Ct. 2551, 2556-59, 192 L. Ed. 2d 569 (2015) (finding enhancement

residual clause of ACCA unconstitutionally vague).

On the other hand, interpreting "comparable offenses" in K.S.A. 2017 Supp. 21-

6811(e)(3) to mean that the out-of-state crime cannot have broader elements than the

Kansas reference offense—that is, using the identical-or-narrower rule—furthers the

KSGA's goal of an even-handed, predictable, and consistent application of the law across

jurisdictional lines. Cf. Johnson, 135 S. Ct. at 2562-63 (discussing goal of doctrine of

stare decisis to effect even-handed, predictable, and consistent application of the law).

Accordingly, we hereby adopt that interpretation. For an out-of-state conviction to be

comparable to an offense under the Kansas criminal code, the elements of the out-of-state

crime cannot be broader than the elements of the Kansas crime. In other words, the

elements of the out-of-state crime must be identical to, or narrower than, the elements of

the Kansas crime to which it is being referenced.

Applying our test in this case, we compare the elements of the Missouri burglary

offense with the elements of Kansas' burglary of a dwelling:

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Mo. Rev. Stat. § 569.170 (1986)

K.S.A. 21-3715 Burglary

Burglary in the second degree

"Burglary is knowingly and without authority "1. A person commits the crime of

entering into or remaining within any: burglary in the second degree when he

knowingly enters unlawfully or

"(a) Building, manufactured home, mobile knowingly remains unlawfully in a

home, tent or other structure which is a dwelling, building or inhabitable structure for the

with intent to commit a felony, theft or sexual purpose of committing a crime therein.

battery therein;

"2. Burglary in the second degree is

"(b) building, manufactured home, mobile a class C felony."

home, tent or other structure which is not a

dwelling, with intent to commit a felony, theft 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 therein.

"Burglary as described in subsection (a) is a

severity level 7, person felony. Burglary as

described in subsection (b) is a severity level 7,

nonperson felony. Burglary as described in

subsection (c) is a severity level 9, nonperson

felony."

Mo. Rev. Stat. § 569.010 (1986)

K.S.A. 21-3110 Definitions

Chapter definitions

"(7) 'Dwelling' means a building or portion "(2) 'Inhabitable structure' includes a

thereof, a tent, a vehicle or other enclosed space ship, trailer, sleeping car, airplane, or

which is used or intended for use as a human other vehicle or structure:

habitation, home or residence."

(a) Where any person lives or

carries on business or other calling; or

(b) Where people assemble for

purposes of business, government,

education, religion, entertainment or

public transportation; or

(c) Which is used for overnight

accommodation of persons. Any such

vehicle or structure is 'inhabitable'

regardless of whether a person is actually

present[.]"

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The comparison reveals two elements that are broader in the Missouri statute: the

specific intent required and the structure involved. The Kansas crime to which the

Missouri conviction is being compared—burglary of a dwelling—requires that the entry

into or remaining within be done with the specific intent to commit a felony, theft, or

sexual battery therein. In contrast, the specific intent required for the Missouri second-

degree burglary is that the burglar's purpose is to commit any crime. Consequently, the

mere existence of the Missouri conviction does not establish the mental state element of

the Kansas reference offense because the Missouri mental state element is broader. The

purpose for the unlawful entry in Missouri could have been to commit misdemeanor

property damage which would not be a burglary in Kansas.

And, of course, the critical element of the Kansas crime is that the structure

involved must be a dwelling, defined 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. 21-3110(7). In the Missouri crime, in contrast, the element of the

charged crime was that Wetrich unlawfully entered or remained within an inhabitable

structure, which is broadly defined to include, in addition to a structure where any person

lives, such non-dwelling places as a business, government office, school, church, roller-

skating rink, or bus station. Again, the breadth of the element in Missouri defeats

comparability with the Kansas crime of burglary of a dwelling. And, as suggested above,

we agree with Mathis' lesson on the distinction between elements and means; the

modified categorical approach is not employed to discover which alternative means or

facts were used in Missouri to establish the crime's inhabitable-structure element. Again,

the Missouri prior conviction fails our comparability test.

In sum, we hold that the Missouri conviction for second-degree burglary was not

comparable to the Kansas offense of burglary of a dwelling. Moreover, when the current

crime was committed, this State did not have a comparable offense to Missouri's second-

15

degree burglary and, accordingly, that prior conviction had to be classified as a

nonperson felony. The Court of Appeals is affirmed; the district court is reversed.

Wetrich's sentence is vacated, and the matter is remanded for resentencing with a

criminal history score of E.

Reversed, sentence vacated, and case remanded with directions.

16