State v. Gibson

1

NOT DESIGNATED FOR PUBLICATION

No. 113,461

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TERRY T. GIBSON, SR.,
Appellant.


MEMORANDUM OPINION

Appeal from Franklin District Court; DOUGLAS P. WITTEMAN, judge. Opinion filed January 29,
2016. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2014 Supp. 21-6820(g) and (h).

Before MALONE, C.J., PIERRON, J., and WALKER, S.J.

Per Curiam: Terry T. Gibson, Sr., appeals the district court's denial of his motion
to correct an illegal sentence. We granted Gibson'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 a response and requested that the district court's judgment be affirmed.

On October 17, 2011, pursuant to a plea agreement, Gibson pled no contest to two
counts of aggravated battery, one count of driving under the influence (DUI) with a prior
DUI conviction, and one count of felony DUI. The district court granted Gibson's motion
for a downward departure and imposed a controlling sentence of 74 months'
imprisonment with 24 months' postrelease supervision.

2

On June 17, 2014, Gibson filed a pro se motion to correct illegal sentence based
on State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court
order September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251
(2015). In a supplemental motion filed by subsequently appointed counsel, Gibson
argued that his 1985 Kansas conviction of aggravated burglary and his 1984 conviction
of attempted aggravated assault should have been scored as nonperson felonies for
criminal history purposes. The State filed responses to both motions, and the district court
held a hearing on the matter on December 15, 2014. After considering argument, the
district court denied Gibson's motion. Gibson appealed.

On appeal, Gibson reasserts his argument that the district court erred in classifying
his 1984 and 1985 convictions as person felonies. 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.

Gibson 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. 560, Syl. ¶¶ 8-9. Gibson committed his current
crimes of conviction in 2009 and 2011. At those times, aggravated burglary and
attempted aggravated assault were scored as person felonies in Kansas. See K.S.A. 21-
3301(c); K.S.A. 21-3410; K.S.A. 21-3716. Based on Keel, the district court did not err in
classifying Gibson's 1985 aggravated burglary conviction and his 1984 attempted
aggravated assault convictions as person felonies. Thus, the district court did not err in
denying Gibson's motion to correct an illegal sentence.

Affirmed.