State v. Flenoy

1

NOT DESIGNATED FOR PUBLICATION

No. 115,686

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CALVIN CLEVELAND FLENOY,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed December 9,
2016. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h).

Before MALONE, C.J., PIERRON and BRUNS, JJ.

Per Curiam: Calvin Cleveland Flenoy appeals the district court's denial of his
motion to correct illegal sentence. We granted Flenoy's motion for summary disposition
in lieu of briefs pursuant to Supreme Court Rule 7.041A (2015 Kan. Ct. R. Annot. 67).
The State has filed no response.

On April 9, 2015, Flenoy pled guilty to one count of aggravated robbery, a
severity level 3 person felony. The date of the offense was January 21, 2015. The district
court found that Flenoy had a criminal history score of C, based in part on his pre-1993
Kansas aggravated robbery conviction which was scored as a person felony for criminal
history purposes. On May 14, 2015, the district court sentenced Flenoy to 90 months'
imprisonment with 36 months' postrelease supervision.
2

On August 18, 2015, Flenoy filed a motion to correct illegal sentence based on
State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel, 302
Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). In the motion, Flenoy
argued that his pre-1993 Kansas aggravated robbery conviction should have been scored
as a nonperson felony for criminal history purposes. The district court filed an order on
November 12, 2015, denying Flenoy's motion. Flenoy appealed.

On appeal, Flenoy argues that the district court erred in classifying his pre-1993
Kansas aggravated robbery conviction as a person felony. Whether a prior conviction is
properly classified as a person or nonperson offense involves the interpretation of the
Kansas Sentencing Guidelines Act (KSGA). Interpretation of a statute is a question of
law over which appellate courts have unlimited review. Murdock, 299 Kan. at 314.

Flenoy acknowledges that our Supreme Court's holding in Murdock has been
overruled in Keel. In Keel, our Supreme Court held that when designating a pre-KSGA
conviction as a person or nonperson crime for criminal history purposes, the court must
determine the classification of the prior conviction as of the time the current crime of
conviction was committed. 302 Kan. at 589-90. Flenoy does not dispute that in Kansas
the crime of aggravated robbery was a person offense at the time Flenoy's current crime
of conviction was committed in 2015. Based on Keel, the district court did not err in
classifying Flenoy's pre-1993 Kansas aggravated robbery conviction as a person offense
for criminal history purposes. Thus, the district court did not err in denying Flenoy's
motion to correct illegal sentence.

Affirmed.