Introduction

Grading Burglary Under the Code

Introduction

Model Penal Code § 221.1 handles burglary in two stages. The provision first defines the offense, and a later subsection then asks how serious a given burglary is.¹ This reading starts at the second stage and assumes the definitional elements are already met, so the only question is the grade. Subsection (2) creates the higher grade by making burglary "a felony of the second degree if it is perpetrated in the dwelling of another at night," or if the actor engages in one of the listed forms of dangerous conduct while committing the offense.² A burglary that fits none of those descriptions is a felony of the third degree, which makes the Code a system of two grades with the lower one as the default.³

The line between the grades has real sentencing consequences. A third-degree felony carries a minimum term of one to two years and a maximum of five years, while a second-degree felony carries a minimum of one to three years and a maximum of ten.⁴ Because the Code offers only one default and one upgrade, grading becomes a sorting question: does anything in the facts lift this burglary out of the third-degree baseline? Three things can. The burglary may have been committed in the dwelling of another at night. The actor may have purposely, knowingly, or recklessly inflicted or attempted to inflict bodily injury on anyone in the course of the offense. Or the actor may have been armed with explosives or a deadly weapon in the course of the offense. The subsection joins these routes with "or," so any one of them is enough to produce the second-degree grade.⁵

The first route will look familiar to anyone who knows the common-law definition of burglary, which built the dwelling and the nighttime into the offense itself. Under the Code those same two features serve as grade factors, so they affect how severely a burglary is punished once the offense exists. That change in function explains how the whole subsection is organized, and this chapter follows it in order. It takes up the third-degree baseline, then each aggravator together with the definition of "in the course of committing," and then a step-by-step method for grading a fact pattern and the rule on multiple convictions. The first section explains how dwelling and night, once elements of the crime, became grade factors.