State v. Kelly

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,934

STATE OF KANSAS,
Appellee,

v.

TERRANCE J. KELLY,
Appellant.


SYLLABUS BY THE COURT

1.
Under K.S.A. 22-3210(d), a court may set aside a conviction and allow a
defendant to withdraw his or her plea after sentencing to correct manifest injustice.

2.
Summary disposition of a postsentence motion to withdraw a plea under K.S.A.
22-3210(d) is appropriate if there is no substantial question of law or triable issue of fact
and the files and records conclusively show the defendant is not entitled to relief on the
motion. The movant bears the burden of alleging facts sufficient to warrant a hearing.
Mere conclusions for which no evidentiary basis is stated or appears are insufficient.

3.
A district court's summary denial of a postsentence motion to withdraw a plea is
reviewed de novo.

4.
A postsentence motion to withdraw a plea under K.S.A. 22-3210(d) alleging
ineffective assistance of counsel due to deficient performance must meet the
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constitutional standards articulated in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984), to establish manifest
injustice. The defendant must demonstrate: (a) Counsel's performance fell below the
standard of reasonableness; and (b) there was a reasonable probability that, but for
counsel's errors, the defendant would not have entered the plea and would have insisted
on going to trial.

5.
Under K.S.A. 22-3504(1), Kansas courts have jurisdiction to correct illegal
sentences at any time.

6.
A prior juvenile adjudication considered in determining whether a defendant is or
is not a juvenile offender does not enhance a crime's severity level or applicable penalties
and may be used also to calculate the defendant's criminal history score.

Appeal from Johnson District Court; JOHN P. BENNETT, judge. Opinion filed February 21, 2014.
Affirmed.

Carl Folsom, III, of Bell Folsom, P.A., of Lawrence, argued the cause, and was on the brief for
appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Steven 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

BILES, J.: Terrance Kelly appeals the district court's summary denial of his pro se
motion to withdraw his guilty pleas to first-degree felony murder and aggravated robbery
entered in 1995. He also argues the aggravated robbery sentence is illegal because his
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juvenile adjudications were used both to certify him for adult prosecution and to compute
his criminal history score. We hold that Kelly fails to demonstrate the manifest injustice
required by K.S.A. 22-3210(d) to withdraw his guilty pleas. We hold further that his
aggravated robbery sentence is not illegal. We affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

When he was 14 years old, Kelly robbed a liquor store, killing the store clerk with
a sawed-off shotgun. The State charged him with premeditated first-degree murder, an
alternative charge of first-degree felony murder, and aggravated robbery. The district
court certified Kelly for adult prosecution. He later pleaded guilty to felony murder and
aggravated robbery. The district court imposed a hard 15 life sentence for the felony-
murder conviction and a consecutive 172-month sentence for the aggravated robbery
conviction. Approximately 12 years later, Kelly moved to withdraw those pleas and
correct what he argues is an illegal sentence for the aggravated robbery conviction.

In support of the motion to withdraw his pleas, Kelly alleges his attorneys failed
to: (1) fully explain the sentencing consequences of the pleas; (2) keep him informed
during the plea negotiations; (3) investigate and advise him of alternate defenses or trial
strategies; and (4) explain the possibility of "diversion . . . from the criminal process,"
i.e., not challenging his prosecution as an adult and failing to assert his Miranda rights
with respect to his pretrial statements to police. He further claims on appeal that his hard
15 life sentence and the consecutive 172-month prison sentence constituted cruel and
unusual punishment under the Eighth Amendment to the United States Constitution
and/or § 9 of the Kansas Constitution Bill of Rights.

In the district court's first consideration of the motion, it incorrectly treated Kelly's
pro se pleading as a request for relief under K.S.A. 60-1507 (habeas corpus statute) and
denied it as time barred. Kelly appealed. This court reversed and remanded the motion for
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further proceedings, holding that the district court should have considered the motion
under K.S.A. 22-3210(d), the statute applicable at the time to postsentence motions to
withdraw pleas. State v. Kelly, 291 Kan. 563, 564-67, 244 P.3d 639 (2010). We
concluded the motion was not time barred under the statute and on remand the district
court was required to determine whether Kelly was entitled to withdraw his plea to
correct manifest injustice. 291 Kan. at 564-67.

Notably, K.S.A. 22-3210 was amended in 2009. It now imposes a 1-year time
limitation, which may be extended by a showing of excusable neglect. See L. 2009, ch.
61, sec. 1; K.S.A. 2013 Supp. 22-3210(e). Those revisions are not applicable to Kelly's
motion.

On remand, the district court again denied the motion without conducting an
evidentiary hearing. In doing so, it observed that Kelly had two trial attorneys, both of
whom participated in the plea hearing and separately stated on the record that they had
informed Kelly of the rights he was waiving, and that even if counsel had not informed
Kelly of the rights being waived, he could not establish prejudice because the district
court informed him of those rights during the plea hearing. The court also rejected Kelly's
claims that trial counsel failed to properly advise him of the sentencing ranges, and again
determined that even if trial counsel had not properly advised him of the possible
sentencing range, the district court had "fully informed Defendant of the sentencing range
at the plea hearing."

Similarly, the district court found from the record that trial counsel had apprised
Kelly of the plea discussions and were very effective in those negotiations. The court
likewise found no merit in Kelly's claims that his attorneys failed to investigate alternate
defenses and trial strategies. It noted Kelly did not identify any potential defenses or
strategies his attorneys allegedly failed to investigate and Kelly had expressly stated at
the plea hearing that he was satisfied with the plea and with his attorneys' representation.
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The district court also found Kelly's attorneys were not ineffective for allegedly
failing to pursue a claim that Kelly's Miranda rights were violated. The court determined
Kelly's sole contention that police questioning was improper because his parent,
guardian, or attorney was not present was insufficient to establish a violation of his
Miranda rights under the factors set out in State v. Young, 220 Kan. 541, Syl. ¶ 2, 552
P.2d 905 (1976) ("The age of the juvenile, the length of the questioning, the juvenile's
education, the juvenile's prior experience with the police, and the juvenile's mental state
are all factors to be considered in determining the voluntariness and admissibility of a
juvenile's confession into evidence.").

Finally, the district court concluded that Kelly's failure to timely assert his actual
innocence and the long delay in filing the motion to withdraw his plea weighed against
determining that manifest injustice existed.

Kelly filed a timely notice of appeal. This court has jurisdiction pursuant to K.S.A.
22-3601(b)(1) (off-grid crime; life sentence).

DENIAL OF MOTION TO WITHDRAW PLEA

At the time Kelly filed his motion, the statute governing a district court's decision
to grant or deny a withdrawal of a guilty plea stated in pertinent part: "To correct
manifest injustice the court after sentence may set aside the judgment of conviction and
permit the defendant to withdraw the plea." K.S.A. 22-3210(d). Kelly claims he
demonstrated manifest injustice and the district court erred in summarily denying his
motion.

In that regard, we observe Kelly frames his issues now differently than when he
last argued before this court. At that time, his appellate counsel conceded at oral
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argument that the district court was not required to hold an evidentiary hearing on remand
in order to determine the merits of Kelly's claims against the manifest injustice standard
in K.S.A. 22-3210(d). Kelly, 291 Kan. at 567. But in this appeal, Kelly contradicts that
concession without explanation and argues now, in part, that he was entitled to an
evidentiary hearing before disposition on the merits.

Standard of Review

Summary denial of a postsentence plea withdrawal motion is reviewed de novo if
there was no argument and evidentiary hearing. State v. Moses, 296 Kan. 1126, 1127-28,
297 P.3d 1174 (2013). Summary disposition is appropriate if there is no substantial
question of law or triable issue of fact and the files and records conclusively show the
defendant is not entitled to relief on the motion. State v. Jackson, 255 Kan. 455, Syl. ¶ 4,
874 P.2d 1138 (1994). The movant bears the burden of alleging facts adequate to warrant
a hearing. "[M]ere conclusions . . . are not sufficient to raise a substantial issue of fact
when no factual basis is alleged or appears from the record." 255 Kan. at 463.

Ineffective assistance of counsel

Kelly argues the record does not demonstrate his attorneys advised him of three
consequences to his pleas: (1) that he would be subject to a mandatory minimum of 15
years' imprisonment for the murder conviction; (2) that if he had not pled guilty he might
have been sentenced as a juvenile if convicted of lesser included offenses at trial; and (3)
that he waived his right to pursue a challenge to the alleged violation of his Miranda
rights by entering the pleas.

When a postsentence motion to withdraw a plea alleges ineffective assistance of
counsel, the constitutional test for ineffective assistance must be met to establish manifest
injustice. State v. Bricker, 292 Kan. 239, Syl. ¶ 5, 252 P.3d 118 (2011). When deficient
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attorney performance is alleged, we perform the familiar two-pronged Strickland
analysis, determining: (1) whether the attorney's performance fell below an objective
standard of reasonableness and (2) whether there is a reasonable probability that, but for
the attorney's errors, the result of the proceeding would have been different. See Bricker,
292 Kan. at 245-46; see also Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468
(1985) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674, reh. denied 467 U.S. 1267 [1984]).

During this analysis, there is a strong presumption counsel "rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment." 236 Kan. at 655. When, as here, the conduct at issue preceded a guilty plea,
prejudice means a reasonable probability that, but for the deficient performance, the
defendant would have insisted on going to trial instead of entering the plea. State v.
Shears, 260 Kan. 823, Syl. ¶ 2, 925 P.2d 1136 (1996); State v. Wallace, 258 Kan. 639,
Syl. ¶ 2, 908 P.2d 1267 (1995). "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Chamberlain, 236 Kan. at 657.

(1) Alleged failure to advise Kelly of the mandatory minimum sentence

In his motion, Kelly alleges his attorneys told him he would be sentenced to 13
years' imprisonment, with the possibility of release in 10 years for good time. On appeal,
this allegation changed to a contention that his attorneys were ineffective for failing to
advise him of the mandatory minimum sentence for felony murder. Both claims are
contrary to the record.

A guilty plea must be voluntarily and intelligently made. In that vein, "'[d]efense
counsel has an obligation to advise a defendant as to the range of permissible penalties
and to discuss the possible choices available to the defendant.'" Shears, 260 Kan. at 830
(quoting State v. Solomon, 257 Kan. 212, 223, 891 P.2d 407 [1995]). We have applied
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this rule to reverse a district court's summary denial of a plea withdrawal motion when
based in part on defense counsel's alleged failure to advise a defendant of the maximum
sentence that could be imposed as a result of a plea. See State v. White, 289 Kan. 279,
285-88, 211 P.3d 805 (2009).

At Kelly's plea hearing, one of his attorneys said, "[W]e have shown [Kelly] the
sentencing range under the guidelines," adding that he had advised Kelly of the "best-
case worst-case middle-case scenario." And, notwithstanding what his attorneys may or
may not have specifically told him off the record, Kelly acknowledged during a colloquy
with the trial court at the plea hearing that he understood that he faced a possible life
sentence for the felony-murder charge and a sentencing range of 46 to 206 months for
aggravated robbery. We observe nothing in the record that supports Kelly's allegations
regarding the range of sentences he might expect. In addition, we agree with the district
court that it is relevant in deciding an allegation of manifest injustice that Kelly received
his sentence, made no contemporaneous objection, and waited another 12 years before
advancing these claims.

We hold the district court was correct to summarily conclude Kelly's counsel was
not ineffective and to refuse to allow plea withdrawal as to this claim.

(2) Alleged failure to advise Kelly of possible juvenile sentencing

Kelly argues next that the record does not affirmatively show whether he
understood he might have been sentenced as a juvenile under K.S.A. 38-1636(i) (Furse
1993) if he had rejected the plea, gone to trial, and was then convicted of a lesser
included offense instead of the first-degree murder and aggravated robbery charges
against him. See State v. Perez, 267 Kan. 543, 546-48, 987 P.2d 1055 (1999) (defendant
certified as an adult on one charge but convicted of a lesser offense should be sentenced
as a juvenile under K.S.A. 38-1636[i] [Furse 1993]). Kelly contends that because the
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record does not expressly show he had this knowledge, the district court's decision must
be reversed in favor of an evidentiary hearing. We disagree.

To begin with, this argument is raised for the first time on appeal and should fail
on that basis alone. See State v. Cheffen, 297 Kan. 689, 696-99, 303 P.3d 1261 (2013)
(declining to address jury polling issue for first time on appeal); State v. Plotner, 290
Kan. 774, 784, 235 P.3d 417 (2010) (declining to address cruel or unusual punishment
claim for first time on appeal).

But even if Kelly had properly raised this issue, the record provides no reasonable
basis to believe a lesser included offense instruction might have been given at his trial.
Rather, it shows the operative facts were that Kelly entered the liquor store to take
money, was carrying a sawed-off shotgun, and killed the store clerk in the process of
committing the crime. See State v. Reid, 286 Kan. 494, 522-23, 186 P.3d 713 (2008)
(aggravated robbery defendant who was armed with dangerous weapon and killed victim
not entitled to lesser included offense robbery instruction); State v. Branning, 271 Kan.
877, 887, 26 P.3d 673 (2001) (at time of offense, no lesser included offense instruction
for felony murder unless evidence of underlying felony weak, inconclusive, or
conflicting). Kelly offers no factual basis for supposing that some other evidence might
have arisen to justify the giving of instructions for lesser included offenses, and no bases
are apparent from the record before us.

Failure to advise Kelly of a matter not relevant under the facts of his case could
not have constituted deficient performance and does not justify reversal of the district
court's summary denial of Kelly's motion. See State v. Gleason, 277 Kan. 624, 648, 88
P.3d 218 (2004) (court analyzing ineffective assistance claim premised on counsel's
failure to object to letters written by defendant, and noting letters would have been
admitted even if counsel had objected).

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(3) Alleged failure to advise Kelly regarding the Miranda challenge

Kelly asserts next that his attorneys were ineffective because they failed to follow
through with a challenge to the admissibility of his statements to police and failed to
inform him that he would waive his right to continue pursuing such a challenge by
pleading guilty. He argues manifest injustice would arise if he did not understand he was
abandoning any contest to the admissibility of his statements. Again, we disagree.

First, the argument is premised on a supposition that we cannot review on appeal.
Kelly's original motion to suppress is not in the appellate record, so we have nothing
from which to determine whether there was ever any factual or legal basis for the motion.
Second, the district court found Kelly's motion to withdraw his plea was insufficient on
its face because it failed to allege necessary facts. The district court observed that this
court's decision in Young required consideration of five factors when a juvenile
challenges the voluntariness of statements to police: (1) the juvenile's age; (2) the length
of the questioning; (3) the juvenile's education; (4) the juvenile's prior experience with
the police; and (5) the juvenile's mental state during questioning. See Young, 220 Kan. at
546-47. But Kelly's motion only alleged police questioning was improper because his
parent, guardian, or attorney was not present, and it offered no other factual allegations
relevant under Young to show a violation of Kelly's Miranda rights. The district court
held this claim, standing alone, was not enough to demonstrate a Miranda violation based
on Young. We agree.

Finally, we hold further that each of Kelly's ineffectiveness arguments fails
because he does not claim his decision to enter his pleas would have changed, but for the
alleged deficient performance by his attorneys. In State v. Adams, 297 Kan. 665, 672, 304
P.3d 311 (2013), this court rejected an ineffective assistance claim, and a corresponding
plea withdrawal motion, based on advice given by counsel before a guilty plea because
there was no reasonable probability that the correct advice would have changed the
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defendant's decision to enter the plea. The evidence of the defendant's guilt was
overwhelming. It included her confession, the victim's testimony, and potential testimony
from an accomplice. We noted that a trial could have resulted in convictions for other
crimes and a greater sentence. We held that absent her attorney's alleged errors it was
unlikely the defendant would have risked trial. 297 Kan. at 672.

Similarly, the record shows Kelly requested that his attorneys enter into plea
negotiations after his accomplices were convicted in jury trials and he learned of their
sentences. The record further shows his request was motivated by a recognition and fear
that he likely would receive a greater sentence of imprisonment than his accomplices if
he went to trial because he was the shooter. At the plea hearing, Kelly's lawyers both
expressed concerns that Kelly could be found guilty of a premeditated killing that would
subject him to a hard 25 or hard 40 sentence. And one of Kelly's lawyers concluded that
Kelly could face a sentence of such length that "he might die in the penitentiary" if
convicted at trial because of his prior juvenile record.

In light of the stated justifications for pleading guilty, it is apparent he entered his
pleas with the specter of harsher punishment looming if he chose to go to trial—a risk
that remained regardless of the information he alleges was withheld. We hold that Kelly
has failed to establish prejudice. There is no reasonable probability he would have
insisted on going to trial instead of entering his pleas under the circumstances.

For these reasons, we hold the district court did not err in denying Kelly's motion
as to the ineffective assistance of counsel claims without the benefit of an evidentiary
hearing.

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Disproportionality of sentence

As his final argument to support plea withdrawal, Kelly contends he should have
been afforded an evidentiary hearing as to whether his hard 15 life sentence plus 172
months' imprisonment was a cruel and/or unusual punishment under the Eighth
Amendment to the United States Constitution or § 9 of the Kansas Constitution Bill of
Rights. He argues a disproportionate sentence would constitute manifest injustice for
purposes of setting aside a plea agreement under K.S.A. 22-3210(d). The district court
did not address whether Kelly's sentence constituted cruel and unusual punishment when
it denied his motion. Kelly claims the issue was properly before the court. We disagree.

Kelly filed his pro se pleading titled "Motion to Withdraw Plea and to Correct
Illegal Sentence and to Vacate Sentence" and an 11-page memorandum of law supporting
that motion. Embedded within the memorandum was a single sentence stating: "Movant's
sentence of LIFE plus 172 MONTHS, under the facts of the case, violates movant's 5th,
6th, 8th, and 14th amendment rights as cruel and unusual punishment." Neither the
motion nor the memorandum makes any other reference to this claim or any facts
supporting it.

In his brief to this court, Kelly sets out several case-specific reasons why he
believes his sentence is disproportionate in violation of the state and federal
Constitutions. These facts include Kelly's upbringing, his age, and the facts involving his
crimes. He then contends, "[C]onsidering the nature of the offense and the character of
the offender in this case, Mr. Kelly should not be serving a life sentence for an accidental
death that resulted from a bad decision made at the age of fourteen." But none of these
arguments were in the pleadings before the district court, which are the focus of our
review.

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As noted above, a movant is not entitled to an evidentiary hearing on a
postsentence plea withdrawal motion unless that motion raises substantial issues or fact
or law. Mere conclusions are insufficient. Jackson, 255 Kan. at 463. A case-specific
challenge to the proportionality of a term-of-years sentence is an inherently factual
inquiry. See State v. Florentin, 297 Kan. 594, 605, 303 P.3d 263 (2013). A bare assertion
that the sentence is cruel and unusual is not sufficient to preserve a disproportionality
claim. See State v. Levy, 292 Kan. 379, 384-85, 253 P.3d 341 (2011) (discussing State v.
Garza, 290 Kan. 1021, 1032-34, 236 P.3d 501 [2010]).

Kelly's motion alleged only that his sentence is cruel and unusual. This conclusory
allegation lacked any factual support and, therefore, did not preclude summary denial of
his plea withdrawal motion.

ILLEGAL SENTENCE

Kelly also argues his aggravated robbery sentence is illegal because his prior
juvenile adjudications were used both to certify him for trial as an adult and in his
criminal history score when fixing his sentence. The State claims this court lacks
jurisdiction to consider a motion to correct an illegal sentence presented for the first time
on appeal. Whether appellate jurisdiction exists and whether a sentence is illegal are both
questions of law subject to de novo review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d
752 (2012) (jurisdictional questions); State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039
(2013) (citing State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 [2011]) (illegality of
sentence).

We begin by rejecting the State's jurisdictional argument. This court
unquestionably may entertain Kelly's argument for the first time on appeal. Kansas courts
have "specific statutory jurisdiction to correct an illegal sentence at any time." State v.
Scherzer, 254 Kan. 926, 930, 869 P.2d 729 (1994) (citing K.S.A. 22-3504); see also State
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v. Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013) ("This court may correct an illegal
sentence sua sponte.").

Kelly's assertion that the dual use of his prior juvenile adjudications renders his
sentence illegal hinges on his interpretation of K.S.A. 1994 Supp. 21-4710(d)(11), which
at the time of Kelly's crimes provided:

"Prior convictions of any crime shall not be counted in determining the criminal history
category if they enhance the severity level or applicable penalties, elevate the
classification from misdemeanor to felony, or are elements of the present crime of
conviction. Except as otherwise provided, all other prior convictions will be considered
and scored."

Kelly argues this provision prohibited use of his juvenile adjudications to compute his
criminal history score because the district court had already considered them when it
ordered that juvenile jurisdiction over Kelly be waived and that Kelly be prosecuted as an
adult pursuant to K.S.A. 38-1636(a) (Furse 1993).

In State v. Lanning, 260 Kan. 815, 818-19 925 P.2d 1145 (1996), the court
considered and rejected this argument. It held that a prior juvenile adjudication is not a
criminal conviction and, therefore, not a "prior conviction of crime" for purposes of the
K.S.A. 21-4710(d)(11) prohibition, relying on our holding in State v. LaMunyon, 259
Kan. 54, 59, 911 P.2d 151 (1996). We explained:

"The use of Lanning's prior juvenile adjudication does not violate K.S.A. 21-
4710(d)(11), which refers only to prior criminal convictions. The use of the prior juvenile
felony adjudication in determining whether to prosecute a juvenile offender as an adult
under K.S.A. 1994 Supp. 38-1602(b)(3) does not enhance the severity level of a crime
. . . but determines when a juvenile may no longer be classified as a juvenile. . . . It is
only after this classification has been made and the offender is prosecuted and then
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convicted of the second felony crime that the sentencing guidelines apply." 260 Kan. at
819.

Kelly acknowledges Lanning but claims it misinterpreted K.S.A. 1994 Supp. 21-
4710 to the extent it held that a juvenile adjudication does not constitute a "prior
conviction." He cites K.S.A. 1994 Supp. 21-4710(a), which included juvenile
adjudications among a list of "prior conviction" types upon which criminal history
categories are based. From this he argues Lanning's further holding—that prosecuting a
defendant as a juvenile based on past convictions does not enhance the applicable
sentence—is tainted by the error and the case lacks precedential value.

Once a point of law has been established by a court, that point of law will
generally be followed by the same court and all courts of lower rank in subsequent cases
where the same legal issue is raised. Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786
(2010). "While this court is not inexorably bound by its own precedent, it will follow the
law of earlier cases unless clearly '"convinced that the rule [at issue] was originally
erroneous or is no longer sound because of changing conditions and that more good than
harm will come by departing from precedent."'" 290 Kan. at 112.

Kelly fails to recognize the distinction between K.S.A. 1994 Supp. 21-4710(a),
which specifically classified juvenile adjudications as "prior convictions" that must be
used to determine the applicable criminal history category, and K.S.A. 1994 Supp. 21-
4710(d)(11), which concerns "[p]rior convictions of any crime . . . ." (Emphasis added.)
As we observed in Lanning and LaMunyon, a juvenile adjudication is not a criminal
conviction, despite the fact it contributes to a defendant's criminal history score when
sentencing a criminal conviction. See Lanning, 260 Kan. 815, Syl. ¶ 4; LaMunyon, 259
Kan. at 59.

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We are not convinced Lanning was wrongly decided. Considering a prior juvenile
adjudication in determining whether a defendant is or is not a juvenile offender does not
enhance a criminal offense's severity level or its applicable penalties. The determination
essentially dictates whether the defendant will be tried for a criminal offense, and, as
noted in Lanning, is made before the Kansas Sentencing Guidelines Act applies to the
case. See Lanning, 260 Kan. at 819.

We hold Kelly's aggravated robbery sentence, which was within the presumptive
sentence for that crime based on his criminal history score, is not an illegal sentence.

Affirmed.