State v. King

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NOT DESIGNATED FOR PUBLICATION

No. 113,514

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TERRY L. KING,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed April 8, 2016.
Affirmed.

Carl F.A. Maughan and Sean M.A. Hatfield, of Maughan Law Group LC, of Wichita, for
appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., HILL and GARDNER, JJ.

Per Curiam: Terry L. King appeals the district court's denial of his motion to
correct an illegal sentence. Finding no error, we affirm.

In May 2001, in exchange for the State recommending the low number grid box,
King pled guilty to one count of aggravated robbery. A presentencing investigation report
revealed King to have a criminal history score of A. His score was based in part on four
prior Kansas pre-1993 person felony convictions for robbery, voluntary manslaughter,
aggravated assault, and aggravated robbery. King was sentenced to 233 months'
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imprisonment. King appealed his sentence, arguing the district court erred by not
following the plea agreement. The Kansas Supreme Court found no err and affirmed
King's sentence. State v. King, No. 88,162, 2002 WL 1797179 (Kan. 2002) (unpublished
opinion). King then filed a pro se motion to withdrawal his guilty plea, which was denied
by the district court. This court subsequently affirmed the district court's decision. King v.
State, No. 97,913, 2008 WL 2571800 (Kan. App. 2008) (unpublished opinion), rev.
denied 287 Kan. 765 (2008).

On July 11, 2014, King filed a pro se motion to correct an illegal sentence
pursuant to 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), cert. denied 136 S. Ct. 865 (2016), arguing the district court incorrectly classified
his four prior in-state felonies as person felonies. The district court denied King's motion
finding Murdock only applied to out-of-state convictions. King timely appeals.

An illegal sentence, as contemplated by K.S.A. 22-3504(1), is a sentence imposed
by a court without jurisdiction; a sentence that does not conform to the statutory
provision, either in the character or the term of authorized punishment; or a sentence that
is ambiguous with respect to the time and manner in which it is to be served. State v.
Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). Whether a sentence is illegal within the
meaning of K.S.A. 22-3504(1) is a question of law over which the appellate court has
unlimited review. Taylor, 299 Kan. at 8.

In determining whether prior offenses may be used as person felonies or otherwise
be used to enhance a defendant's sentence, the district court is constitutionally prohibited
under United States v. Descamps, 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), from making additional factual findings beyond simply identifying the statutory
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elements of the primary offense. State v. Dickey, 301 Kan. 1018, 1039, 350 P.3d 1054
(2015).

King's claim is controlled by the Kansas Supreme Court's recent decision in Keel,
302 Kan. at 560. When designating a pre-Kansas Sentencing Guidelines Act (KSGA)
conviction as a person or nonperson crime in the criminal history, the court must consider
how the crimes would have been classified based on the classification in effect for the
comparable Kansas offense at the time the current crime of conviction was committed.
Keel, 302 Kan. at 581. Contrary decisions in Murdock, 299 Kan. at 312 and State v.
Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010), and were specifically overruled
by the majority in the Keel decision. See 302 Kan. at 581-89. Any doubt as to the
treatment of pre-KSGA convictions has been resolved by the legislature in L. 2015, ch. 5,
secs. 1-2 (HB 2053), effective April 2, 2015, which amended K.S.A. 2014 Supp. 21-6810
and K.S.A. 21-6811.

Applying Keel, we find King's pre-KSGA convictions were properly classified as
person offenses. At the time of King's convictions in 2001, the Kansas Criminal Code
prohibited the same offenses that comprised King's four disputed convictions: voluntary
manslaughter, aggravated assault, robbery, and aggravated robbery. All four convictions
were classified as person felonies in 2001. See K.S.A. 21-3403 (Furse 1995); K.S.A. 21-
3410 (Furse 1995); K.S.A. 21-3426 (Furse 1995); K.S.A. 21-3427 (Furse 1995); .
Following Keel, we reject King's argument and find his pre-KSGA convictions were
correctly classified as person felonies.

On appeal, King also argues:

"The fact of whether the defendant's previous conviction was a person crime increases
the defendant's sentence. When that fact had not been previously been included in the
definition of criminal history, changing the definition of the criminal history now requires
the legislature to make a finding that was not part of the criminal history at the time of the
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original sentence and that increases the legal sentence. Doing so violates the rule set forth
in Apprendi and its progeny."

The use of criminal history to calculate the presumptive KSGA sentence does not
violate due process as interpreted by Apprendi. State v. Williams, 299 Kan. 911, 941, 329
P.3d 400 (2014) (reaffirming State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 [2002]). In
determining whether prior offenses may be used as a person felony or otherwise be used
to enhance a defendant's sentence, the district court is constitutionally prohibited under
Apprendi and Descamps from making additional factual findings beyond simply
identifying the statutory elements of the primary offense. Dickey, 301 Kan. at 1039.
Classifying a prior conviction based on the classification in effect for the comparable
offense when the current crime was committed does not change the penalty imposed for
the earlier conviction and thus complies with the Ex Post Facto Clause of the United
States Constitution. See Keel, 302 Kan. at 589. In classifying King's prior offenses as
person felonies, the district court was not required to make any additional factual
findings. The statutory elements of King's four pre-1993 felonies were the same as the
statutory elements of the similar offenses at the time of his conviction. The district court
did not violate Apprendi.

Based on Keel, the district court correctly classified King's prior convictions as
person felonies. Thus, the district court did not err in denying King's motion to correct an
illegal sentence, and we affirm.

Affirmed.