State v. Donaldson

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 114,032

STATE OF KANSAS,
Appellee,

v.

ERICK DONALDSON,
Appellant.


SYLLABUS BY THE COURT

1.
An appellate court reviews a district court's summary denial of a motion to correct
an illegal sentence under K.S.A. 22-3504(1) de novo because the reviewing court has the
same access to the motions, records, and files. The reviewing court, like the district court,
must determine whether the documents conclusively show the defendant is not entitled to
relief.

2.
Whether a sentence is illegal is a question of law over which an appellate court has
unlimited review. An illegal sentence under K.S.A. 22-3504(1) is one: (a) imposed by a
court without jurisdiction; (b) that does not conform to the statutory provisions, either in
the character or the term of the punishment authorized; or (c) that is ambiguous with
respect to the time and manner in which it is to be served.

3.
The classification of a prior crime as a person or nonperson felony for criminal
history purposes is a question of state statutory law. A misclassification results in an
illegal sentence that can be corrected at any time.
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Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed June 2, 2017.
Reversed and remanded with directions.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, and Sean M.A. Hatfield, of the
same firm, were on the brief for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Erick Donaldson was convicted of sale of cocaine. He was sentenced
under the Kansas Sentencing Guidelines Act (KSGA). See K.S.A. 21-4701 et seq. His
criminal history at that time included a 1990 felony adjudication for burglary, which the
district court classified as a person crime for sentencing purposes.

In 2014, Donaldson filed a motion to correct an illegal sentence, claiming the
district court's classification of the 1990 felony adjudication for burglary was an error
under State v. Dickey, 301 Kan. 1018, 1039-40, 350 P.3d 1054 (2015) (Dickey I) (holding
pre-KSGA convictions and juvenile adjudications of burglary under K.S.A. 21-3715 must
be classified as nonperson felonies). The district court summarily denied him relief. We
reverse based on Dickey I, vacate the sale of cocaine sentence, and remand for
resentencing with directions to reclassify the 1990 burglary adjudication as a nonperson
felony.

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FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Donaldson of first-degree felony murder and sale of cocaine—
the sale occurred in 2002—in two separate cases that were consolidated for trial. The
presentence investigation reports revealed nine prior convictions, including a 1990
Kansas juvenile adjudication for burglary, scored as a person felony.

At the time Donaldson committed the cocaine offense, it was a severity level 3
drug grid felony. K.S.A. 65-4161(a); see K.S.A. 21-4705. Under the KSGA, the
presumptive sentencing range for a severity level 3 drug grid felony varied based on the
offender's criminal history score. See K.S.A. 21-4705(a), (d). The district court applied a
criminal history score of "B" and sentenced Donaldson to 44 months' imprisonment—the
center of the range applicable to an offender with that criminal history score. The court
ordered that this sentence be served consecutive to a hard 20 life sentence it imposed for
the murder conviction.

Under the KSGA, a criminal history score of "B" applied if "[t]he offender's
criminal history includes two adult convictions or juvenile adjudications, in any
combination, for person felonies." K.S.A. 21-4709. Donaldson argued below that the
correct criminal history score was "C." This score applied if "[the] offender's criminal
history includes one adult conviction or juvenile adjudication for a person felony, and one
or more adult conviction or juvenile adjudication for a nonperson felony." K.S.A. 21-
4709.

In 2014, Donaldson filed two motions to correct his sale of cocaine sentence,
arguing he should have been sentenced using a criminal history score of "C" because his
1990 juvenile adjudication should have been scored as a nonperson felony. The first
motion relied on this court's decision in State v. Murdock, 299 Kan. 312, 319, 323 P.3d
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846 (2014) (holding person/nonperson classification of prior out-of-state offenses for
purposes of calculating criminal history score determined by comparing prior offense to
comparable Kansas crime at time of prior offense, resulting in nonperson classification of
all pre-KSGA out-of-state offenses), overruled by State v. Keel, 302 Kan. 560, 357 P.3d
251 (2015), cert. denied 136 S. Ct. 865 (2016). The second relied, in part, on a Court of
Appeals' decision in State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), aff'd
State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015).

The district court summarily denied Donaldson relief on the merits based on
Dickey I. Donaldson argues the district court erred because the burglary adjudication
offenses should not have been classified as person offenses. He timely appealed.
Jurisdiction is proper. See K.S.A. 2016 Supp. 22-3601(b)(3) (Supreme Court has
jurisdiction over a case in which life sentence is imposed); State v. Sims, 294 Kan. 821,
823-24, 280 P.3d 780 (2012) (Supreme Court has jurisdiction over motion to correct an
illegal sentence filed in a case in which defendant received a life sentence).

We focus exclusively on the motion based on Dickey I, which is dispositive.
Donaldson's Murdock-based claim would afford him no further relief since his criminal
history score includes a post-KSGA person felony, and, as explained below, a pre-KSGA
nonperson felony. See K.S.A. 21-4709 (defining criminal history score "C").

DICKEY I REQUIRES REVERSAL AND REMAND

On appeal, Donaldson argues the 1990 juvenile adjudication for burglary should
have been scored as a nonperson felony. We agree. Because the burglary statute at the
time of Donaldson's 1990 juvenile adjudications did not require proof the crime involved
a "dwelling," the sentencing court could not have concluded the crime in fact involved a
dwelling, as required to classify it as a person crime under K.S.A. 2002 Supp. 21-
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4711(d). See Dickey I, 301 Kan. at 1039-40. But the sentencing court did so, resulting in
a higher criminal history score than otherwise would have applied. The sentence imposed
based on this erroneous criminal history score was illegal. See State v. Dickey, 305 Kan.
217, 220, 380 P.3d 230 (2016) (Dickey II).

Standard of Review

Under K.S.A. 22-3504(1), the court may correct an illegal sentence at any time.
An illegal sentence under K.S.A. 22-3504(1) is one: (1) imposed by a court without
jurisdiction; (2) that does not conform to the statutory provisions, either in character or
the term of the punishment authorized; or (3) that is ambiguous with respect to time and
manner in which it is to be served. State v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060
(2014).

An appellate court reviews a district court's summary denial of a motion to correct
an illegal sentence under K.S.A. 22-3504(1) de novo because the appellate court has the
same access to the motions, records, and files. 299 Kan. at 801. In doing so, this court,
like the district court, must determine whether the documents conclusively show
Donaldson is not entitled to relief. 299 Kan. at 801.

Discussion

At the time of Donaldson's sale of cocaine offense, the KSGA was mostly silent
about how to determine whether a pre-KSGA offense should be scored as a person or
nonperson crime. See Keel, 302 Kan. at 572. But it was not silent on how to score pre-
KSGA Kansas burglary adjudications:

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"Prior burglary . . . juvenile adjudications will be scored for criminal history
purposes as follows:

"(1) As a prior person felony if the prior conviction or adjudication was classified
as a burglary as described in subsection (a) of K.S.A. 21-3715 . . . .

"(2) As a prior nonperson felony if the prior conviction or adjudication was
classified as a burglary as described in subsection (b) or (c) of K.S.A. 21-3715 . . . .

"The facts required to classify prior burglary . . . juvenile adjudications must be
established by the state by a preponderance of the evidence." K.S.A. 2002 Supp. 21-
4711(d).

To classify Donaldson's 1990 burglary adjudication as a person felony under this
statute, the sentencing court would have been required to find the burglary involved a
"dwelling." See K.S.A. 21-3715(a) (defining burglary as "knowingly and without
authority entering into or remaining within any . . . [structure] which is a dwelling").
Although the record does not reveal when the prior burglary was committed, as the
burglary statute existed at the time of the 1990 juvenile adjudication—and as it has
existed since 1969—it did not require a showing that the structure burglarized was a
"dwelling." See K.S.A. 1990 Supp. 21-3715.

In Dickey I, the court held that under these circumstances a defendant's pre-KSGA
burglary adjudication must be classified as a nonperson felony. 301 Kan. at 1039-40
("Because burglary of a 'dwelling' . . . was not included within the statutory elements
making up Dickey's prior burglary adjudication, the burglary adjudication should have
been classified as a nonperson felony."). The court reasoned that under Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), a sentencing court may
not engage in factfinding "by attempting to determine whether a defendant's actions
satisfied an element not contained within the statute under which the defendant's prior
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conviction arose." 301 Kan. at 1038 (citing Descamps v. United States, 570 U.S. ___, 133
S. Ct. 2276, 2281-87, 186 L. Ed. 2d 438 [2013]). And since the burglary statute that
formed the basis of the pre-KSGA adjudication did not require proof the structure
burglarized was a dwelling, the sentencing court could not constitutionally have
determined the prior adjudication involved a dwelling. Accordingly, the offense should
have been classified as a nonperson felony. The Dickey I court held:

"[T]he district court was constitutionally prohibited from classifying Dickey's prior
burglary adjudication as a person felony because doing so would have necessarily
resulted from the district court making or adopting a factual finding that went beyond
simply identifying the statutory elements that constituted the prior burglary adjudication.
Because burglary of a 'dwelling' (as that term is defined in K.S.A. 2014 Supp. 21-
5111[k]) was not included within the statutory elements making up Dickey's prior
burglary adjudication, the burglary adjudication should have been classified as a
nonperson felony." 301 Kan. at 1039-40.

Donaldson's case arrives in a different procedural posture than Dickey I in that
Dickey I was a direct appeal. But the two cases are otherwise factually indistinguishable.
Accordingly, if Dickey I applies, Donaldson's sale-of-cocaine sentence should be vacated
and the case should be remanded for resentencing on that count. The State concedes as
much, but makes three arguments why Dickey I should not dictate the outcome.

First, the State contends, Donaldson's Dickey I-based argument is a constitutional
challenge to his sentence, "not an illegal sentence claim" that can be raised at any time
under K.S.A. 22-3504(1). This argument relies primarily on State v. Moncla, 301 Kan.
549, Syl. ¶ 4, 343 P.3d 1161 (2015) (noting sentence imposed in violation of constitution
is not an "illegal sentence under K.S.A. 22-3504"), and State v. Mitchell, 284 Kan. 374,
Syl. ¶ 2, 162 P.3d 18 (2007) ("Because the definition of an illegal sentence does not
include a claim that the sentence violates a constitutional provision, a defendant may not
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file a motion to correct an illegal sentence based on constitutional challenges to his or her
sentence."). Second, the State argues Donaldson abandoned the claim when he failed to
raise it in his direct appeal. And, third, it asserts Dickey I should not be applied
retroactively.

The court rejected these arguments in Dickey II. As with Donaldson's case, Dickey
II was not a direct appeal. It was an appeal from the revocation of probation in multiple
cases consolidated for appeal, in which Dickey challenged the legality of the underlying
sentences imposed when probation was initially granted. The Dickey II court concluded
that because an illegal sentence can be corrected at any time, "the procedural distinctions
. . . between Dickey I and Dickey II fade into irrelevance and the substantive holding of
Dickey I must control." 305 Kan. at 219. It reasoned,

"[T]he challenge presented to Dickey's sentences in both Dickey I and [Dickey II] are
challenges to the statutory propriety of the classification at issue—albeit with a thick
overlay of constitutional law . . . —there is no impediment to Dickey's claim that the
underlying sentences he received after his probation was revoked in the three underlying
cases are illegal. And that claim is identical to, and controlled by, our determination in
Dickey I that the exact prior conviction at issue here was in fact misclassified. The State's
remaining efforts to impose a procedural bar to the relief Dickey seeks—arguments
concerning retroactivity and res judicata—are all unavailing in the context of a motion to
correct an illegal sentence which can be made at any time." (Emphasis added.) 305 Kan.
at 221-22.

Applying Dickey I and Dickey II, we hold the sentencing court improperly
classified Donaldson's 1990 burglary adjudication as a person felony, resulting in an
incorrect criminal history score, and, unavoidably, an illegal sentence. Accordingly, we
reverse the district court's judgment summarily denying Donaldson relief, vacate the 44-
month sentence imposed for Donaldson's sale of cocaine conviction, and remand the case
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for resentencing with directions that Donaldson's 1990 burglary adjudication be
reclassified as a nonperson felony.

Reversed and remanded with directions.