State v. Blake

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NOT DESIGNATED FOR PUBLICATION

No. 113,427

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MONTEZ L. BLAKE,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed May 13, 2016.
Sentence vacated and remanded with directions.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, P.J., GREEN and LEBEN, JJ.

Per Curiam: Montez L. Blake appeals from the judgment of the trial court
summarily denying his motion to correct illegal sentence. On appeal, Blake argues that
his sentence is illegal because the trial court classified his 1991 Kansas burglary
conviction as a person felony for criminal history purposes in violation of our Supreme
Court's holding in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). The State does
not dispute that Blake's sentence is unconstitutional under Dickey. Nevertheless, the State
asserts that Blake is not entitled to relief under Dickey: (1) because Blake is barred as a
matter of res judicata from raising his challenge given that he could have made such
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challenge in a direct appeal; and (2) because Blake is barred from having Dickey applied
retroactively. We disagree.

In State v. Martin, 52 Kan. App. 2d __, Syl. ¶¶4-8, 2016 WL 852130, No.
113,189, filed March 4, 2016, this court rejected both of the State's claims that a
defendant was procedurally barred by the doctrine of res judicata and by retroactivity
from obtaining relief under the holding in Dickey. Accordingly, we adopt the Martin
holding. As a result, we vacate Blake's sentence and remand to the trial court for
resentencing with directions to apply the correct criminal history score.

On February 25, 2013, Blake pled guilty to two counts of theft, both severity level
9 nonperson felonies. See K.S.A. 2015 Supp. 21-5801(a)(4). The trial court ordered a
presentencing investigation report which revealed that Blake had a criminal history score
of A because he had three prior person felonies. One of those person felonies was a 1991
Kansas burglary conviction. On April 11, 2013, the trial court sentenced Blake to a total
of 16 months' imprisonment followed by 12 months' postrelease supervision. Blake did
not object to his criminal history score.

On October 23, 2014, Blake moved to correct illegal sentence. In this motion,
Blake argued that under this court's decision in State v. Dickey, 50 Kan. App. 2d 468, 329
P.3d 1230 (2014), aff'd 301 Kan. 1018, 350 P.3d 1054 (2015), the trial court
miscalculated his criminal history score. Blake pointed out that his pre-Kansas
Sentencing Guidelines Act (KSGA) 1991 Kansas burglary conviction was classified as a
person felony for criminal history purposes. Blake argued that the trial court erred by
making this classification because, as in Dickey, the trial court could not have determined
that his 1991 burglary conviction involved the burglary of a dwelling without engaging in
judicial factfinding. As a result, Blake asserted that he should be resentenced because his
criminal history score was actually B. Blake additionally argued that his sentence was
illegal under State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme
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Court order September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251
(2015).

The State responded that Blake's sentence was not illegal under Murdock or
Dickey. Regarding Dickey, the State asserted that Blake's motion was procedurally barred
by res judicata. The State additionally argued that this court's Dickey decision did not
apply retroactively.

Agreeing with the State, the trial court summarily denied Blake's motion because
of the following: (1) that "the Dickey decision conflicts with other Court of Appeals
decisions"; (2) that "the Dickey decision is pending before the Kansas Supreme Court on
petition for review and is not a final decision"; (3) that the Dickey decision did not apply
retroactively; (4) that the Murdock decision applied only to pre-1993 out-of-state
offenses; and (5) that Blake was barred from attacking his criminal history score because
he should have challenged his score in a direct appeal.

Did the Trial Court Err When It Denied Blake's Motion to Correct Illegal Sentence?

When a trial court summarily denies a motion to correct illegal sentence, an
appellate court reviews the motions, records, and files of the case de novo. Makthepharak
v. State, 298 Kan. 573, 577, 314 P.3d 876 (2013). Summary denial is appropriate only
when the record definitively proves that a defendant is not entitled to relief. 298 Kan. at
577. Whether a sentence is illegal under K.S.A. 22-3504(1) is a question of law over
which an appellate court has unlimited review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d
1256 (2014).

Under K.S.A. 22-3504(1), a "court may correct an illegal sentence at any time."
"An illegal sentence is a sentence that (1) is imposed by a court without jurisdiction; (2)
does not conform to the statutory provision, either in character or the term of the
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punishment authorized; or (3) is ambiguous with regard to the time and manner in which
it is to be served." State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012).

On appeal, Blake abandons his argument that his sentence is illegal under
Murdock, a case that our Supreme Court overruled in Keel, 302 Kan. 560, Syl. ¶ 9. As a
result, Blake's only argument on appeal concerns whether his sentence is illegal under our
Supreme Court's decision in Dickey. In his brief, Blake first argues that the trial court
erred by summarily denying his motion because his criminal history score contention
necessarily constitutes a challenge to the legality of the sentence that his criminal history
score helped produce. Blake believes his criminal history challenge fits within the
confines of an illegal sentence under K.S.A. 22-3504(1) that may be corrected at any
time. Next, Blake argues that his "1991 burglary conviction should have been classified
as a nonperson felony" given our Supreme Court's decision in Dickey. Accordingly,
Blake asks this court to vacate his sentence and remand for resentencing because his
sentence is illegal under our Supreme Court's holding in Dickey.

The State does not contest that Blake's sentence is unconstitutional under our
Supreme Court's holding in Dickey. Instead, the State counters that Blake may not
challenge his sentence for the following reasons: (1) because he is barred as a matter of
res judicata; and (2) because he is not entitled to the retroactive application of our
Supreme Court's holding in Dickey. Of note, the State also points out that the issue of
retroactive application of our Supreme Court's holding in Dickey is currently pending
before our Supreme Court. See State v. Dickey, No. 110,325, 2014 WL 4081937 (Kan.
App. 2014) (unpublished opinion), rev. granted October 7, 2015.

Blake's Sentence is Unconstitutional Under Our Supreme Court's Holding in Dickey

In his brief, Blake argues that our Supreme Court's "Dickey is dispositive of this
appeal." That is, Blake asserts that the Dickey decision proves that his sentence is illegal
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because the trial court engaged in judicial factfinding while calculating his criminal
history score. A review of the relevant statutes and our Supreme Court's Dickey decision
reveals that Blake's sentence violates his constitutional rights. See Dickey, 301 Kan.
1018, Syl. ¶¶7-8.

In determining a defendant's criminal history score, the trial court must classify a
prior adult burglary conviction as a person felony if the prior conviction is classified as a
burglary as defined in K.S.A. 2015 Supp. 21-5807(a)(1). See Keel, 302 Kan. 560, Syl. ¶¶
8-9. K.S.A. 2015 Supp. 21-5807(a)(1), which is the same as the burglary statute in effect
when Blake committed the thefts in this case, states that a burglary is "without authority,
entering into or remaining within any: (1) Dwelling, with intent to commit a felony, theft
or sexually motivated crime therein." A dwelling is "a building or portion thereof, a tent,
a vehicle or other enclosed space which is used or intended for use as a human habitation,
home or residence." K.S.A. 2015 Supp. 21-5111(k). Yet, when Blake was convicted of
burglary in 1991, burglary was defined as

"knowingly and without authority entering into or remaining within any: (1) Building,
manufactured home, mobile home, tent or other structure, with intent to commit a felony
or theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of
conveyance of persons or property, with intent to commit a felony or theft therein."
K.S.A. 1990 Supp. 21-3715.

Thus, the burglary statute in effect when Blake was convicted of burglary did not contain
a dwelling element.

Our Supreme Court's Dickey decision grounded its holding on the United States
Supreme Court cases Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000), and Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed.
2d 438 (2013). In Apprendi, the United States Supreme Court held that "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the
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prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490. If a trial court engages in such factfinding, that trial
court has violated the defendant's Sixth and Fourteenth Amendment rights under the
United States Constitution. Apprendi, 530 U.S. at 476-77. In Descamps, the United States
Supreme Court held that a trial court implicates the Apprendi holding when the trial court
enhances a defendant's sentence of current conviction based on factfinding regarding the
defendant's prior conviction that goes beyond simply recognizing the existence of the
prior conviction. 133 S. Ct. at 2288-89.

In Dickey, Dickey argued that the trial court erred when it classified his 1992
Kansas burglary adjudication as a person felony for criminal history purposes because the
burglary statute he was adjudicated under did not contain a dwelling element while the
burglary statute in effect under his current crime of conviction contained a dwelling
element. Dickey argued that the trial court engaged in factfinding in violation of
Apprendi and Descamps when it compared the two statutes to determine if his prior
burglary adjudication constituted a person felony. Our Supreme Court agreed, vacated
Dickey's sentence, and remanded for resentencing, holding that the trial court violated the
Apprendi and the Descamps decisions because the statute Dickey was adjudicated under
did not contain the dwelling element. Dickey. 301 Kan. at 1039. Our Supreme Court
explained that when the trial court determined that Dickey's prior burglary involved a
dwelling determination, the trial court necessarily "ma[de] or adopt[ed] a factual finding
(i.e., the prior burglary involved a dwelling) that went beyond simply identifying the
statutory elements that constituted the prior burglary adjudication." 301 Kan. 1018, Syl. ¶
8. Hence, for criminal history purposes, the Dickey court held that the trial court should
have classified Dickey's prior burglary adjudication as a nonperson felony. 301 Kan.
1018, Syl. ¶8.

Returning to Blake's case, we note that the applicable statutes in Blake's case and
in Dickey's case are substantively identical. Consequently, as in Dickey, the trial court's
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decision to classify Blake's 1991 burglary conviction as a person felony involved judicial
factfinding that went beyond simply recognizing the existence of his 1991 burglary
conviction or the elements of the burglary statute. As a result, we determine that Blake's
constitutional rights were violated.

Blake May Move to Correct His Sentence at Any Time under K.S.A. 22-3504(1)

Even though Blake's sentence is unconstitutional under our Supreme Court's
holding in Dickey, the State argues that Blake is not entitled to relief. The State asserts
that this court should affirm the trial court's summary denial of Blake's motion to correct
illegal sentence: (1) because his challenge is barred as a matter of res judicata; and (2)
because his challenge is barred because Dickey does not apply retroactively.

Regarding the res judicata argument, whether a claim is barred by res judicata is a
question of law over which this court has unlimited review. State v. Robertson, 298 Kan.
342, 344, 312 P.3d 361 (2013). Our Supreme Court has explained that "res judicata
consists of four elements: '"[1] same claim; [2] same parties; [3] claims were or could
have been raised; and [4] a final judgment on the merits."'" State v. Kingsley, 299 Kan.
896, 901, 326 P.3d 1083 (2014) (quoting State v. Martin, 294 Kan. 638, 641, 279 P.3d
704 [2012]). Fundamentally, res judicata requires that "issues 'once finally determined . .
. cannot afterwards be litigated.'" Kingsley, 299 Kan. at 901 (quoting Jayhawk
Equipment Co. v. Mentzer, 191 Kan. 57, 61, 379 P.2d 342 [1963]).

In its brief, the State relies on State v. Johnson, 269 Kan. 594, Syl. ¶ 3, 7 P.3d 294
(2000), where our Supreme Court held that "K.S.A. 22-3504(1) is a statute of limited
applicability and may not be used as a vehicle to breathe new life into appellate issues
previously abandoned or adversely determined." To be fair, in Johnson our Supreme
Court rejected Johnson's argument that his sentence was illegal based upon his assertion
that the State made inconsistent statements in his plea bargain. 269 Kan. at 601. Thus,
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when the Johnson court held that a defendant could not use a motion to correct illegal
sentence as a vehicle to breathe new life into appellate issues previously abandoned or
adversely determined," it was referring specifically to issues that did not fit within the
definition of an illegal sentence under K.S.A. 22-3504(1). 269 Kan. at 601.

Nevertheless, our Supreme Court has held that a defendant's criminal history score
contention constitutes a challenge to the legality of a defendant's sentence under K.S.A.
22-3504(1). For example, in State v. Neal, 292 Kan. 625, 258 P.3d 365 (2011), Neal
moved to correct an illegal sentence, challenging the calculation of his criminal history
score, nearly 7 years after he had been convicted. Both the trial court and this court found
that Neal was procedurally barred from challenging his criminal history score because he
had had the opportunity to raise this challenge in his direct appeal. Our Supreme Court
rejected this argument, holding: (1) that "K.S.A. 22-3504 [was] the proper vehicle for
[Neal's] claim" because "Neal's challenge to his criminal history score [was] necessarily a
challenge to his sentence that the history score helped produce"; (2) that "the motion to
correct illegal sentence is not subject to our general rule that a defendant must raise all
available issues on direct appeal"; and (3) that because "Neal's argument fits within the
parameters of an illegal sentence . . . his motion to correct an illegal sentence was timely
filed." 292 Kan. at 631. As a result, if defendants' claims fit within the definition of an
illegal sentence under K.S.A. 22-3504(1), then those defendants may raise their claims at
any time regardless of their ability to raise such arguments in a prior appeal.

Thus, the Neal court's holding supports the position that res judicata will not bar
defendants from challenging their criminal history score in a motion to correct illegal
sentence. Moreover, it is worth noting that in Angelo v. State, No. 109,660, 2014 WL
1096834, at *4 (Kan. App. 2014) (unpublished opinion), rev. denied 301, Kan. __
(January 8, 2015), another panel of this court came to the same conclusion, holding: "If
[a] sentence is illegal, res judicata does not apply and we have jurisdiction over the
issue." As a result, because Blake's criminal history score challenge fits within the
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parameters of an illegal sentence under K.S.A. 22-3504(1), his challenge is not barred by
res judicata. Accordingly, the State's argument that Blake is barred by res judicata fails.

Similarly, because Blake's criminal history score challenge fits within the
parameters of an illegal sentence under K.S.A. 22-3504(1), the State's argument that
"Dickey should not be retroactively applied to any case that has become final" fails. In its
brief, the State cites to several cases where Kansas courts have declined to apply a rule
retroactively, including Drach v. Bruce, 281 Kan. 1058, 1072, 136 P.3d 390 (2006), cert.
denied 549 U.S. 1270 (2007). In Drach, our Supreme Court held that, in general, new
rules will not be applied retroactively. 281 Kan. at 1072. The Drach court explained the
limited exceptions to this rule as follows:

"'Under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334
(1989), a new rule of constitutional criminal procedure is not applied retroactively on
collateral review unless (1) it places certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to prosecute, or (2) it is a
watershed rule requiring the observance of those procedures that are implicit in the
concept of ordered liberty.' [Citation omitted.]" 281 Kan. at 1072.

The State contends that because the Drach court refused to retroactively apply the
United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.
Ct. 1354, 158 L. Ed. 2d 177 (2004), which created a new Confrontation Clause analysis,
Dickey should not apply retroactively unless Blake's challenge fits within one of the two
exceptions stated above in Drach, 281 Kan. at 1072.

Yet, in making this argument, the State ignores that our Supreme Court has
consistently held that a criminal history score contention constitutes a challenge to the
legality of the underlying sentence that may be raised at any time under K.S.A. 22-
3504(1). Again, in Neal our Supreme Court held that defendants may challenge their
criminal history scores via a motion to correct illegal sentence under K.S.A. 22-3504(1)
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because defendants necessarily challenge their underlying sentence when they challenge
their criminal history scores. 292 Kan. at 631. In Dickey, our Supreme Court held that
defendants may challenge their criminal history scores under K.S.A. 22-3504(1) because
"[s]uch a challenge necessarily raises a claim that the sentence imposed for the current
conviction was illegal because the sentence did not comply with the applicable statutory
provision regarding the term of punishment authorized for the current conviction." 301
Kan. 1018, Syl. ¶ 3. Moreover, in State v. Luarks, 302 Kan. 972, Syl. ¶ 1, 360 P.3d 418
(2015), our Supreme Court held that when a defendant challenges "how prior convictions
should be classified for criminal history purposes," "[s]uch a challenge necessarily
raise[s] a claim that the sentence imposed for the current conviction was illegal because it
did not comply with the applicable statutory provision regarding the term of punishment
authorized for the current conviction."

Thus, challenges to criminal history scores constitute challenges to the legality of
the underlying sentence that the criminal history score helped produce. Moreover,
because criminal history challenges fit within the parameters of an illegal sentence,
defendants may raise their criminal history challenges at any time under K.S.A. 22-
3504(1). Consequently, Blake is not limited by the general rule that "'a new rule of
constitutional criminal procedure is not applied retroactively on collateral review.'"
Drach, 281 Kan. at 1072.

Furthermore, even if Blake could not raise his criminal history challenge under
K.S.A. 22-3504(1), the State's retroactivity argument would still fail. As Blake points out
in his reply brief, Dickey is "merely an application of Apprendi," which was the law when
Blake was sentenced for the thefts in 2013. Because Apprendi was law when Blake was
sentenced for the thefts in 2013, this court would not need to apply the Apprendi rule
retroactively to apply the rule in Blake's case.

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It is additionally important to note that this court recently rejected identical
arguments concerning res judicata and the retroactive application of Dickey. In Martin,
52 Kan. App. 2d ___, 2016 WL 852130, Martin asserted that the trial court erred when it
summarily denied his motion to correct illegal sentence challenging the trial court's
decision to classify his two 1990 burglary adjudications as person felonies for criminal
history purposes. The State countered that Martin was not entitled to relief in his
collateral appeal: (1) because he was barred as a matter of res judicata; and (2) because he
was not entitled to the retroactive application of Dickey. Martin, 2016 WL 852130, at *1.
Citing the case previously discussed, this court rejected the State's arguments because
defendants challenging their criminal history scores may properly bring their challenges
under K.S.A. 22-3504(1). 2016 WL 852130, at *3-8. Therefore, this court's decision in
Martin further supports the position that the State's arguments must fail.

Blake's Sentence is Illegal and Must Be Vacated

In summary, neither of the State's arguments regarding res judicata and
retroactivity are correct. Because Blake's criminal history challenge fits into the confines
of an illegal sentence that may be corrected at any time under K.S.A. 22-3504(1), this
court has jurisdiction to address Blake's challenge. Moreover, Blake correctly argues that
his sentence violates his constitutional rights as stated in Apprendi, Descamps, and
Dickey because the trial court engaged in factfinding that went beyond recognizing his
prior conviction and identifying the statutory elements of the burglary statute.
Accordingly, the trial court erred by summarily denying Blake's motion because Blake's
sentence is illegal. As a result, this court must vacate Blake's sentence and remand to the
trial court for resentencing.

Sentence vacated and remanded with directions.