State v. Buford

1

NOT DESIGNATED FOR PUBLICATION

Nos. 119,486
119,487

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CLARENCE BUFORD JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed April 12,
2019. Affirmed.

Submitted for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h).

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

PER CURIAM: Clarence Buford Jr. appeals the district court's denial of his motions
to correct an illegal sentence filed in two separate cases. We granted Buford's motion for
summary disposition under Kansas Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47).
The State has filed no response. For the reasons stated in this opinion, we affirm the
district court's judgment.

In November 1996, Buford pled guilty to one count of second-degree murder in
both 96CR882 and 96CR952. At sentencing, the district court found Buford's criminal
history score to be C, and sentenced him to consecutive terms of 178 months'
2

imprisonment in each case. Buford's criminal history score was based in part on a 1988
Kansas juvenile adjudication of attempted aggravated burglary scored as a person felony.

On July 5, 2017, Buford filed a motion to correct an illegal sentence in each case,
alleging that the district court erred in classifying his 1988 adjudication of attempted
aggravated burglary as a person felony under State v. Dickey, 301 Kan. 1018, 350 P.3d
1054 (2015). The State responded in each case and argued that Buford's motions should
be denied for three reasons. First, the State argued that Buford was convicted of off-grid
crimes and his sentences were unaffected by his criminal history score. Second, the State
argued that the holding in Dickey does not apply to sentences that were final before the
United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000). Third, the State argued that the holding in Dickey
does not apply to Buford's prior adjudication of attempted aggravated burglary. On
March 12, 2018, the district court denied Buford's motions, adopting the State's response.
Buford timely appealed and the cases have been consolidated on appeal.

On appeal, Buford claims the district court "erred in scoring his prior conviction of
attempted aggravated burglary as a person felony." Buford articulates no legal argument
to support his claim. Whether a sentence is illegal is a question of law subject to
unlimited appellate review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). Also,
whether a prior conviction is properly classified as a person or nonperson offense
involves the interpretation of the Kansas Sentencing Guidelines Act (KSGA). Statutory
interpretation is a question of law subject to unlimited review. State v. Collins, 303 Kan.
472, 473-74, 362 P.3d 1098 (2015).

In district court, Buford argued that his sentence was illegal because the district
court erred in classifying his 1988 adjudication of attempted aggravated burglary as a
person felony under Dickey. In Dickey, the Kansas Supreme Court held that the district
court was constitutionally prohibited from classifying the defendant's pre-KSGA burglary
3

adjudication as a person felony under K.S.A. 2014 Supp. 21-6811(d) because doing so
necessarily resulted from the district court making or adopting a factual finding, i.e., that
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.

But this court has repeatedly found that the holding in Dickey does not apply to a
pre-1993 conviction or adjudication of aggravated burglary. See State v. Hopkins, No.
114,300, 2016 WL 4735093, at *3-4 (Kan. App. 2016) (unpublished opinion); State v.
Antalek, No. 114,033, 2016 WL 4063971, at *2 (Kan. App. 2016) (unpublished opinion),
rev. denied 306 Kan. 1320 (2017); State v. Jefferson, No. 110,932, 2015 WL 1782599, at
*2 (Kan. App. 2015) (unpublished opinion). The reasoning behind these decisions is that
the plain language of K.S.A. 2018 Supp. 21-6811(d) applies only to the classification of
prior burglary convictions for criminal history purposes and does not govern the
classification of pre-KSGA aggravated burglary convictions for criminal history
purposes. We adopt the sound reasoning of these decisions and conclude that the district
court did not err in rejecting Buford's argument under Dickey.

As Buford admits on appeal, under K.S.A. 21-4711(g), a prior conviction of an
attempt to commit a crime shall be treated as a person or nonperson crime in accordance
with the designation of the underlying crime. He also admits that under State v. Keel, 302
Kan. 560, 581, 357 P.3d 251 (2015), a pre-KSGA conviction or adjudication shall be
scored as a person or nonperson crime using a comparable offense under the Kansas
criminal code in effect on the date the current crime of conviction was committed. See
K.S.A. 2018 Supp. 21-6811(e)(3). Here, on the date Buford's current crimes of second-
degree murder were committed, aggravated burglary was classified as a person felony in
Kansas. See K.S.A. 21-3716. Under these statutory rules, Buford's 1988 Kansas juvenile
adjudication of attempted aggravated burglary was properly classified as a person offense
for criminal history purposes.

4

The district court's finding that Buford was convicted of off-grid crimes and that
his sentences were unaffected by his criminal history score was incorrect. Buford's
convictions of second-degree murder were not off-grid crimes and his sentences were
based on his criminal history score of C. But this error does not matter for reasons we
have already explained. Finally, we need not address the district court's finding that the
holding in Dickey does not apply to sentences that were final before Apprendi. If a district
court reaches the correct result, its decision will be upheld even though it relied on the
wrong ground or assigned erroneous reasons for its decision. See State v. Overman, 301
Kan. 704, 712, 348 P.3d 516 (2015).

Affirmed.