State v. Ellsworth

1

NOT DESIGNATED FOR PUBLICATION

No. 113,138

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LEONARD D. ELLSWORTH, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge. Opinion filed March
25, 2016. Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., BRUNS, J., and WALKER, S.J.

Per Curiam: Defendant Leonard D. Ellsworth, Jr., contends the Sedgwick County
District Court erred in classifying his presentencing guidelines burglary conviction as a
person felony in scoring his criminal history and, therefore, imposed an illegal sentence
on him in this case. Ellsworth's premise is correct, but his conclusion is faulty, since he
has eight person felony convictions that were correctly scored to place him in the highest
criminal history classification. Ellsworth's sentence was lawful, and he has incurred no
legal prejudice. We affirm the district court's denial of his motion.

2

In 2010, Ellsworth pleaded guilty to one count of aggravated burglary, one count
of felony theft, one count of battery of a law enforcement officer, and one count of
obstructing legal process or official duty. As part of a plea agreement, the State joined in
a recommendation that Ellsworth receive a downward durational departure in his
sentence. The presentence investigation report showed Ellsworth had an A criminal
history score based on nine prior person felony convictions, including a burglary
conviction from 1984. The 1984 conviction predated enactment of the sentencing
guidelines. Ellsworth did not dispute his criminal history score during the sentencing
hearing. The district court granted the downward durational departure and sent Ellsworth
to prison for 96 months.

In late 2014, Ellsworth filed a motion to correct an illegal sentence, as provided in
K.S.A. 22-3504, based on 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), holding that burglary
convictions under the criminal code predating the sentencing guidelines must be scored
as nonperson felonies rather than person felonies for criminal history purposes given the
statutory elements of the offense. The district court denied the motion. The district court
ruled that Dickey was not a binding decision because the State's petition for review had
been granted; that the decision would not, in any event, apply retroactively; and that
Ellsworth could not raise the issue in a motion to correct an illegal sentence, since he did
not object to his criminal history score during the sentencing hearing. The district court
also pointed out that Ellsworth had convictions for eight other person felonies, so
reclassifying the burglary conviction would not change his criminal history score or the
resulting presumptive sentence. Ellsworth timely appealed the district court's denial of his
motion.

In the meantime, the Kansas Supreme Court issued its decision in Dickey and held
that burglary convictions, such as Ellsworth's 1984 conviction, had to be scored as
nonperson felonies for criminal history purposes given the statutory elements of the
3

offense and the dictates of Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186
L. Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000). Dickey, 301 Kan. at 1021. We need not further detail the rationale
behind Dickey. Earlier this year, this court held that Dickey should be applied
retroactively to motions defendants file to correct illegal sentences. State v. Martin, 52
Kan. App. 2d ___, Syl. ¶¶ 5, 7-8, ___ P.3d ___ (No. 113,189 filed March 4, 2015).

The Kansas Supreme Court's decision in Dickey and this court's decision in Martin
effectively undercut the district court's reasons for refusing to treat Ellsworth's 1984
burglary conviction as a nonperson felony for criminal history purposes. Those decisions,
likewise, dispose of the State's arguments supporting that aspect of the district court's
decision. In short, the district court erred in scoring Ellsworth's 1984 burglary conviction
as a person felony.

What remains, however, is the matter of remedy. A sentence is illegal for purposes
of K.S.A. 22-3504(1) if it: (1) is imposed by a court without jurisdiction; (2) fails to
conform to the sentencing statute, either in character or term of punishment; or (3) is
ambiguous as to the time and manner required for serving the punishment. State v. Sims,
294 Kan. 821, Syl. ¶ 3, 280 P.3d 780 (2012). Assessed by those criteria, the district
court's erroneous treatment of the 1984 burglary conviction did not result in an illegal
sentence. The classification of the conviction did not affect the district court's
jurisdiction. Ellsworth's sentence conformed to the governing statutes in that the term of
imprisonment was authorized for a person with a criminal history in category A. And, of
course, Ellsworth fell in that category regardless of how the burglary conviction was
treated. There was nothing ambiguous about the duration of the sentence or how
Ellsworth had to serve the sentence. Accordingly, despite the district court's error,
Ellsworth received a lawful sentence. The sentence would have been the same had the
district court scored the 1984 burglary conviction as a nonperson felony. That's plain
4

from the district court's alternative ground for denying the motion—Ellsworth had eight
person felonies even if the 1984 conviction had been considered a nonperson felony.

Ellsworth has shown no legal harm or prejudice. He is, therefore, entitled to no
substantive remedy. See State v. Lakey, 22 Kan. App. 2d 585, 586-87, 920 P.2d 470
(1996) (no prejudice to defendant and no legal basis for remand when district court
correctly scores five convictions as person felonies and declines to score remaining
convictions shown in criminal history). Remanding for resentencing would be an empty
exercise, and the law does not require empty exercises. See K.S.A. 60-2105 (technical
errors that do not affect party's "substantial rights" may be disregarded on appeal); Lakey,
22 Kan. App. 2d at 586-87; see also State v. Garcia-Barron, 50 Kan. App. 2d 500, 507,
329 P.3d 1247 (2014) (district court may be affirmed if it reaches correct result for the
wrong reason).

Affirmed.