Kansas Supreme Court Decisions, May 5, 2023

05 May 2023 2:17 PM | Executive Director (Administrator)

Appeal No. 123,382: State of Kansas v. Allen Lee Busch

Appeal No. 123,382 archived oral argument

The Supreme Court unanimously affirms in part and reverses in part the Court of Appeals decision and affirms in part and vacates in part the Seward County District Court decision sentencing Busch for possession of methamphetamine, oxycodone, and drug paraphernalia. Busch claimed on appeal his sentences were illegal because the State failed to prove his prior New Jersey convictions for burglary and criminal trespass were person felonies. The Court noted the elements of the New Jersey burglary statute did not require proof of residential involvement, as mandated by K.S.A. 2022 Supp. 21-6811(e)(3)(B)(iii), and thus held those convictions could not be classified as person felonies as a matter of law. The Court also affirmed the classification of Busch's prior New Jersey criminal trespass conviction as a person felony, however, because one version of that statute's elements required proof of residential involvement and the State carried its burden of proof by presenting the presentence investigation report, as provided by K.S.A. 21-6814(b). The Court then remanded Busch's case for resentencing.

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