Parker v. State

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MODIFIED

NOT DESIGNATED FOR PUBLICATION

No. 115,267

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

EDWARD J. PARKER,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION


Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Original opinion filed March
10, 2017; modified opinion filed April 12, 2017. Affirmed.

Joanna Labastida and Sam Schirer, of Kansas Appellate Defender Office, for appellant.

John Grobmyer, legal intern, Kate Duncan Butler, assistant district attorney, Charles E. Branson,
district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., GREEN, J., and BURGESS, S.J.

Per Curiam: In this appeal of the court's denial of his K.S.A. 60-1507 motion,
Edward Parker contends that he is serving an illegal sentence because the court used two
juvenile adjudications to increase his criminal history score. Parker claims that
amendments made in 2016 are retroactive and his juvenile adjudications have decayed
and cannot be used in deciding his criminal history score. He asks us to vacate his
sentence and remand for resentencing.

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Because there is no clear expression of retroactive application of these
amendments, we hold that Parker's appeal should be denied.

How this case comes to us.

Parker filed a K.S.A. 60-1507 motion contending that his trial counsel was
ineffective for failing to challenge the use of his juvenile adjudications in his criminal
history. The district court summarily denied the motion because the sentencing court
properly counted two of Parker's juvenile adjudications as person felonies according to
K.S.A. 2015 Supp. 21-6810(d)(3)(B). That version of the statute stated that juvenile
adjudications for an offense which would constitute a person felony if committed by an
adult do not decay. Parker appealed.

For the first time on appeal, Parker contends that his sentence is illegal under
K.S.A. 2016 Supp. 21-6810(d)(3)(B). That version of the statute states that juvenile
adjudications for an offense which would constitute a nondrug severity level 1 through 4
person felony if committed by an adult do not decay. He argues that since his juvenile
adjudications do not fall within that category, they can now decay. The State contends the
statutory amendment does not apply retroactively.

In January 2015, Parker pled no contest to second-degree attempted murder
occurring on May 26, 2014, a severity level 3 person felony. At his plea hearing, Parker
acknowledged that he understood the sentencing range for this crime was between 55 and
247 months' incarceration, depending on his criminal history score. Parker expressed
satisfaction with his appointed counsel's representation.

Parker's presentence investigation report listed his criminal history score as B. The
score was calculated based on two prior juvenile adjudications that were scored as person
felonies: criminal threat and unlawful voluntary sexual relations. Parker had several other
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juvenile adjudications that were listed as decayed. At sentencing, the court asked Parker
if he had any objection to the accuracy of his criminal history, and Parker responded "No,
Your Honor. It looks correct." The court also asked Parker if he wanted to make any
comment in mitigation before his sentence was announced, and Parker declined. The
court sentenced Parker to 216 months' imprisonment, with a 36-month postrelease
supervision term. Parker did not appeal.

On September 1, 2015, Parker filed a pro se K.S.A. 60-1507 motion. He alleged
that his trial counsel was ineffective for failing to: "check on" his criminal history;
investigate a prior juvenile adjudication that was used for criminal history purposes; and
object to the use of the juvenile adjudication. Parker complained that two juvenile
adjudications should have decayed because he was 25 years old when he committed his
current crime of conviction. Parker also stated that his counsel was ineffective "in that he
didn't discuss the prior History of his client's criminal history." Parker filed a motion for
appointment of counsel. He asked for a hearing to determine his revised sentence with the
person felonies removed from his criminal history.

In October 2015, the court summarily dismissed the motion without a hearing. The
court found that although Parker claimed ineffective assistance of counsel, the gravamen
of Parker's motion was that his juvenile record was used in calculating his criminal
history score. The court found that:

"Petitioner had two person felonies as a juvenile which do not decay and are
required by statute to be included in criminal history calculations. K.S.A. [2015 Supp.]
21-6810(d)(3)(B) provides that there will be no decay factor applicable for 'a juvenile
adjudication for an offense which would constitute a person felony if committed by an
adult.' Petitioner had juvenile adjudications for criminal threat and unlawful voluntary
sexual relations, both of which are person felonies if committed by an adult. Kansas law
is clear that these juvenile adjudications count in criminal history."

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Parker appealed the court's "finding that the Petitioner's juvenile adjudication had not
reached the age of 25 years, thereby allowing for a criminal history score higher than
allowed by law."

Parker's ineffective assistance of counsel claim on appeal arises entirely from the
single statement in his K.S.A. 60-1507 motion that his counsel was ineffective "in that he
didn't discuss the prior History of his client's criminal history." The argument on appeal,
that Parker might not have accepted the plea agreement if properly advised, stretches that
statement in his K.S.A. 60-1507 motion beyond reasonable interpretation. In his motion,
Parker did not assert that his attorney's ineffectiveness persuaded him to accept a plea
agreement where he otherwise would not. Rather, Parker asked for a hearing to determine
a revised sentence without the juvenile adjudications in his criminal history. Parker did
not set forth an evidentiary basis to support an ineffectiveness assistance of counsel
claim. The district court did not err by failing to make findings of fact and conclusions of
law for an argument not raised in Parker's K.S.A. 60-1507 motion.

Obviously, Parker's K.S.A. 60-1507 motion was based entirely on a belief that his
criminal history score was incorrect. He claimed that his attorney was ineffective for
failing to investigate and object to his criminal history score. But no ineffective assistance
of counsel claim could have succeeded because the criminal history score was correct
under the then-effective statute. Parker admits as much in his supplemental brief.
Therefore, the district court did not err by summarily dismissing Parker's K.S.A. 60-1507
motion because the motion, files, and case records conclusively showed that Parker was
entitled to no relief.

Is Parker's sentence now illegal?

On October 22, 2015, Parker filed a pro se motion to correct an illegal sentence,
again arguing that his juvenile adjudications should have decayed. The court denied that
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motion as well. The parties agree that Parker's sentence was legal prior to the 2016
amendments to K.S.A. 21-6810(d)(3)(B). They disagree on whether the 2016
amendments apply retroactively to Parker. Parker argues they do, the State argues they do
not.

We examine K.S.A. 21-6810 then and now.

The date of Parker's offense was May 26, 2014. K.S.A. 2013 Supp. 21-
6810(d)(3)(B) provided: "There will be no decay factor applicable for: . . . a juvenile
adjudication for an offense which would constitute a person felony if committed by an
adult." At the time of his crime then, his juvenile adjudications would not decay.

Then, beginning in July 2016, K.S.A. 21-6810(d)(3)(B) was amended to read:
"There will be no decay factor applicable for: . . . a juvenile adjudication for an offense
which would constitute a nondrug severity level 1 through 4 person felony if committed
by an adult." H.B. 2463; L. 2016, ch. 97, § 1 (effective July 1, 2016). Along with this
change, K.S.A. 21-6810(d)(4)(B) was amended to read:

"Except as otherwise provided, a juvenile adjudication will decay if the current crime of
conviction is committed after the offender reaches the age of 25, and the juvenile
adjudication is for an offense: . . . committed on or after July 1, 1993, which would be a
nondrug severity level 5 through 10 . . . if committed by an adult." H.B. 2463; L. 2016,
ch. 97, § 1 (effective July 1, 2016).

"Decay factor" means that the offense is not considered in determining the offender's
criminal history score. K.S.A. 2016 Supp. 21-6803(e); State v. Smith, 49 Kan. App. 2d
88, 90, 304 P.3d 359 (2013).

Parker's criminal history score was calculated based on two prior juvenile
adjudications that were scored as person felonies: a 2005 adjudication for criminal threat
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and a 2006 adjudication for unlawful voluntary sexual relations. Criminal threat is a
severity level 9 person felony if committed by an adult. K.S.A. 2016 Supp. 21-
5415(c)(1). Unlawful voluntary sexual relations is at most a severity level 8 person felony
if committed by an adult. K.S.A. 2016 Supp. 21-5507(b)(1). Parker was 25 years old at
the time of his current offense. Therefore, under the 2016 amendments, Parker's juvenile
adjudications would decay.

An illegal sentence may be corrected at any time.

An "illegal sentence," as contemplated by K.S.A. 22-3504(1), is a sentence
imposed by a court without jurisdiction; a sentence that does not conform to the statutory
provision, either in the character or the term of authorized punishment; or a sentence that
is ambiguous with respect to the time and manner in which it is to be served. State v.
Gray, 303 Kan. 1011, 1014, 368 P.3d 1113 (2016). When a prior conviction has been
misclassified, the resulting sentence is illegal. State v. Dickey, 305 Kan. 217, 220, 380
P.3d 230 (2016). A court may correct an illegal sentence "at any time." K.S.A. 22-
3504(1). A defendant may challenge an illegal sentence even for the first time on appeal.
State v. Fisher, 304 Kan. 242, 263-64, 373 P.3d 781 (2016). Whether a sentence is illegal
within the meaning of K.S.A. 22-3504 is a question of law over which an appellate court
has unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).

The State contends that the present appeal is the wrong procedural vehicle for
raising this issue because Parker had submitted his initial brief before the effective date of
the statutory amendments. While it is true that Parker did not raise this issue in his initial
brief, we did permit him to submit a supplemental brief and allowed the State time to
respond. Thus, both parties have had the opportunity to brief this issue.

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We address this issue because K.S.A. 22-3504(1) is clear. An illegal sentence
question can be raised at any time. The policy behind the law is clear as well. People
serving sentences deserve answers to questions about the legality of their sentences.

We examine the 2016 amendments.

It is fundamental that criminal statutes and penalties in effect at the time of a
criminal offense are controlling. State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257
(2004). "The legislature has the exclusive role of providing for the punishment of
convicted criminals. [Citation omitted.] It follows that the legislature has the power to
enact legislation reducing the punishment of convicted criminals or granting leniency to
them." Chiles v. State, 254 Kan. 888, 897, 869 P.2d 707 (1994).

Generally, a statute operates prospectively unless (1) the statutory language clearly
indicates the legislature intended the statute to operate retroactively; or (2) the change is
procedural or remedial in nature and does not prejudicially affect the substantive rights of
the parties. See State v. Bernhardt, 304 Kan. 460, 479, 372 P.3d 1161 (2016). Substantive
laws define criminal acts and prescribe punishments. Procedural laws provide or regulate
the steps by which a defendant is tried and punished. Tonge v. Werholtz, 279 Kan. 481,
487, 109 P.3d 1140 (2005); State v. Stegman, 41 Kan. App. 2d 568, 572, 203 P.3d 52
(2009).

Penalty provisions for a criminal offense are substantive, not procedural law. State
v. Martin, 270 Kan. 603, 608, 17 P.3d 344 (2001). The 2016 amendments to K.S.A. 21-
6810 are substantive in nature because if applied, they would change the length of
Parker's sentence. In State v. Freeman, 249 Kan. 768, 770-72, 822 P.2d 68 (1991), the
Kansas Supreme Court held that a statute allowing the State a 30-day "grace period" to
file a motion to revoke probation was substantive because, if applied, it would have
changed the length of the defendant's punishment. In contrast, this court in State v.
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Hayden, 52 Kan. App. 2d 202, 207-210, 364 P.3d 962 (2015), held that statutory
amendments permitting a sentencing court to impanel a jury to determine aggravating
sentencing factors were procedural in nature because they would not change the length of
the defendant's sentence.

Here, the 2016 amendments to K.S.A. 21-6810, if applied, would reduce the
length of Parker's sentence. Under the 2016 amendments to the statute, Parker's two
juvenile adjudications that were scored as person felonies under prior versions of the
statute would decay and not count towards his criminal history. See State v. Jarvis, 30
Kan. App. 2d 64, 69, 38 P.3d 742 (2002) (holding that a change in juvenile court
jurisdiction that would preclude consideration of a defendant's prior conviction for
purposes of calculating his criminal history score was a substantive change).

Therefore, our question boils down to whether the legislature clearly intended its
amendment to operate retroactively. We think not.

We are persuaded by the arguments against retroactivity.

First, the State contends that by its express language, the retroactivity clause only
applies to those sections of the statute that are "procedural in nature." The legislature can
expressly provide any statutory change is retroactive, constrained only by the
constitutions of the United States and Kansas. Chiles, 254 Kan. at 897. If the legislature
expressly provides for an amendment to be retroactively applied, the procedural-versus-
substantive analysis used to determine legislative intent is unnecessary. State v. Todd,
299 Kan. 263, 275, 323 P.3d 829, cert. denied 135 S. Ct. 460 (2014). While the
legislature cannot make a sentencing statute retroactive in violation of the Ex Post Facto
Clause of the United States Constitution, the legislature may make retroactive changes
that reduce punishment of defendants. See Chiles, 254 Kan. at 897.

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If the legislature intended the decay provisions to operate retroactively, then it
would have used more specific language. It did not do so and it is not clear that such a
broad policy change was intended. The State complains that if the 2016 amendments to
K.S.A. 21-6810 are applied retroactively, "untold numbers of offenders" will be entitled
to a recalculation of their criminal history score. Indeed, if we applied the 2016
amendments retroactively, it would entitle anyone serving a sentence based on a criminal
history score that included certain juvenile adjudications to be resentenced.

We note that the legislature in the past has made some sentencing statutes
retroactive by use of express language. The limited retroactivity language in K.S.A. 21-
4723 (Furse 1995) and K.S.A. 21-4724(b) (Furse 1995) provided for conversion of pre-
Sentencing Guidelines Act sentences to Guideline sentences in express and limited
situations. Only sentences for nondrug crimes that would have been classified as severity
level 5 or 6, and for drug crimes that would have been classified as severity level 3 if the
person had been sentenced under the Act, were eligible for conversion. The Department
of Corrections was directed to prepare a sentencing guidelines report on imprisoned
inmates with pre-July 1, 1993, sentences, except those with convictions for nondrug
severity level 1-4 felonies and drug severity level 1-3 felonies, but including those in grid
blocks 3-H or 3-I of the drug grid. See State v. Jeffries, 304 Kan. 748, 752-53, 375 P.3d
316 (2016). The statute provided a specific timetable and procedure for sentence
conversion. See State v. Roseborough, 263 Kan. 378, 384, 951 P.2d 532 (1997).

The legislature knew that enactment of determinative sentences, replacing
indeterminate sentences, was a massive undertaking affecting virtually all prisoners.
Thus, it created a mechanism to undertake the task. There is no such provision under
these 2016 amendments. We are convinced by the lack of any clear expression that the
2016 amendments are retroactive that the district court's view was correct.

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We find no error in the criminal history score used by the sentencing court and
affirm the dismissal of Parker's motion.