State v. Luton

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NOT DESIGNATED FOR PUBLICATION

No. 113,936

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN LUTON,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed July 22, 2016.
Sentence vacated and case remanded with directions.

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

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, Derek Schmidt,
attorney general, for appellee.

Before MCANANY, P.J., HILL and BRUNS, JJ.

Per Curiam: In 1997 John Luton was convicted of aggravated criminal sodomy
and aggravated burglary. Luton's presentence investigation (PSI) report calculated his
criminal history score as A based on three prior person felony convictions: a burglary
conviction in 1981, an aggravated burglary conviction in 1984, and a post-guidelines
aggravated burglary conviction. Following his sentencing, Luton appealed. This court
affirmed in State v. Luton, No. 80,958, unpublished opinion filed January 29, 1999, rev.
denied 266 Kan. 1113 (1999).

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Thereafter Luton sought relief through various motions, but until 2008 he did not
challenge the classification of the crimes used to determine his criminal history score. See
State v. Luton, No. 109,279, 2014 WL 642115 (Kan. App. 2014) (unpublished opinion);
Luton v. State, No. 104,166, 2011 WL 4440208 (Kan. App. 2011) (unpublished opinion),
rev. denied March 8, 2012; Luton v. State, No. 94,605, 2007 WL 92649 (Kan. App. 2007)
(unpublished opinion), rev. denied March 7, 2007; Luton v. State, No. 90,220, 2004 WL
1488761 (Kan. App. 2004) (unpublished opinion); Luton v. State, 86,403, unpublished
opinion filed March 22, 2002.

In 2008, Luton moved to correct an illegal sentence, asserting that his criminal
history should have been proven to a jury under Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Luton appealed. His appeal was disposed of
by order, summarily affirming in part and dismissing in part.

Then, in 2014, 16 years after he was sentenced, Luton again moved for relief from
his sentence, arguing that the district court erroneously classified his 1981 burglary
conviction and his 1984 aggravated burglary conviction as person felonies in calculating
his criminal history score. He relied 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, 589, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016), and
State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), aff'd 301 Kan. 1013, 350
P.3d 1054 (2015).

The district court summarily denied relief, and Luton appeals.

On appeal, Luton argues that his 1981 burglary and 1984 aggravated burglary
convictions should have been scored as nonperson felonies for criminal history purposes
based on our Supreme Court's holdings in Dickey and Murdock.

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Whether a prior conviction should be classified as a person or nonperson offense
involves the interpretation of the Kansas Sentencing Guidelines Act (KSGA), a matter
over which we have unlimited review. State v. Keel, 302 Kan. 560, 571, 357 P.3d 251
(2015). Further, we have de novo review when the district court summarily denies a
motion to correct an illegal sentence. Makthepharak v. State, 298 Kan. 573, 577, 314
P.3d 876 (2013).

State's defenses

The State argues that Luton is not entitled to relief because a motion to correct an
illegal sentence under K.S.A. 22-3504 is not the appropriate vehicle for bringing a
constitutional claim.

Under K.S.A. 22-3504(1), a court may correct an illegal sentence at any time. A
sentence is illegal if: (1) it was imposed by a court without jurisdiction; (2) it does not
conform to the applicable statutory provision, either in character or term of punishment
authorized; or (3) it is ambiguous with regard to the time and manner in which it is to be
served. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011).

In State v. Warrior, 303 Kan. 1008, 1112, 362 P.3d 828 (2016), the court declared
that a motion to correct an illegal sentence under K.S.A. 22-3504(1) "does not cover a
claim that a sentence violates a constitutional provision." The issue there was whether the
sentencing court violated the defendant's constitutional rights under Apprendi when the
judge imposed a hard-50 sentence after finding that two aggravating factors existed. Our
court recently considered the matter in State v. Vasquez, 52 Kan. App. 2d 708, 716, 371
P.3d 946 (2016), and held that a motion to correct an illegal sentence is an appropriate
procedural vehicle to challenge the classification of a prior burglary conviction under
Dickey. The claim falls squarely within the scope of relief afforded by K.S.A. 22-3504(1)
and does not violate Warrior because it is not a constitutional challenge to the sentencing
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statute or the sentence itself. 52 Kan. App. 2d at 716. Rather, the claim is "grounded in
the sentencing court's misclassification of . . . prior convictions as person offenses for
purposes of calculating criminal history." 52 Kan. App. 2d at 716.

Luton does not challenge the constitutionality of a sentencing statute or his
sentence. Instead, he asserts the district court erred in calculating his criminal history
score which resulted in a sentence that does not comply with the applicable statutory
provision in the term of punishment authorized. This claim is not procedurally barred
under Warrior and is within the scope of relief afforded by K.S.A. 22-3504.

In State v. Martin, 52 Kan. App. 2d 474, 481, 363 P.3d 1133 (2016), petition for
rev. filed May 5, 2016, the court reiterated the "clear statutory directive" that a motion to
correct an illegal sentence may be brought at any time. See K.S.A. 22-3504(1). See also
State v. Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015) (motion to correct illegal
sentence proper when claim is misclassification of prior offenses as person offenses);
Dickey, 301 Kan. at 1034 (K.S.A. 22-3504[1] authorizes a court to correct an illegal
sentence at any time); State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011) (motion to
correct an illegal sentence based on calculation of criminal history score may be filed at
any time); Vasquez, 52 Kan. App. 2d at 716 (clarifying the difference between a claim
that a sentencing statute is unconstitutional from a claim that a constitutional error caused
an illegal sentence).

The State asserts that Neal and Dickey were wrongly decided because the
definition of an illegal sentence does not include a claim that the sentence violates the
constitution. But we are bound by the Supreme Court's holding in these cases absent
some indication the Supreme Court is departing from its holdings in these cases. See
State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. ___
(2015). We see no such indication. Luton argues that the misclassification of his prior
crimes resulted in a sentence that is illegal (rather than unconstitutional) in that it does
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not conform to the applicable statutory provision in terms of the punishment authorized.
Luton's motion to correct an illegal sentence is the proper vehicle to raise this issue.

The State also claims that Luton abandoned this issue and is now barred from
raising it under res judicata because he did not raise the issue in his direct appeal, in his
K.S.A. 60-1507 proceedings, or in his 2004 motion to correct an illegal sentence. The
State relies on State v. Johnson, 269 Kan. 594, 601, 7 P.3d 294 (2000). But in Johnson
the issue was whether the State acted in accordance with its plea bargain obligations, not
that the court imposed an improper sentence based on an erroneous criminal history
score. Besides, as the Martin court stated:

"The doctrine of res judicata or waiver does not apply to bar a claim when that
claim, if true, would render a sentence illegal and the claim has not been previously
addressed on its merits."
"Applying the doctrine of res judicata to bar challenges of an illegal sentence
merely because they could have been brought in a direct appeal would undermine the
clear statutory directive in K.S.A. 22-3504(1) that courts may correct an illegal sentence
at any time." Martin, 52 Kan. App. 2d 474, Syl. ¶¶ 4, 5.

We adopt the reasoning in Martin. Luton's claims are not barred by the doctrine of res
judicata.

The State next claims that Luton is not entitled to retroactive application of our
Supreme Court's holding in Dickey. But Kansas courts have jurisdiction to correct an
illegal sentence at any time. Finding guidance in Neal, our court held "that retroactivity
analysis is not applicable when it is determined by a court that a constitutional error
affects the defendant's criminal history score resulting in an illegal sentence." Martin, 52
Kan. App. 2d at 483-84.

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Thus, we conclude that Luton is not procedurally barred from obtaining relief
based on the State's claim that the holding in Dickey should not be applied retroactively.

1981 burglary conviction

Turning to the merits of Luton's argument based on Dickey, the State
acknowledges that if the court does not accept its procedural arguments, the holding in
Dickey applies and Luton's sentence, which is based in part on the treatment of his 1981
pre-KSGA burglary as a person felony, is illegal.

In Dickey, the court considered whether classifying a 1992 juvenile adjudication
for burglary as a person felony violated the defendant's Sixth Amendment rights as stated
in Apprendi and Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d
438 (2013). In Apprendi, the United States Supreme Court held that any fact that
increases the penalty for crime beyond the prescribed statutory maximum, other than the
fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable
doubt. 530 U.S. at 490. In Descamps, the Court determined that Apprendi was implicated
when a district court enhances a defendant's sentence based on a finding that goes beyond
the existence of a prior conviction or the statutory elements that comprised the prior
conviction. Descamps, 133 S. Ct. at 2288-89.

Applying Apprendi and Descamps, our Supreme Court in Dickey determined that
the burglary statute in effect when Dickey committed the 1992 burglary did not require
proof that the burgled structure was a dwelling. Thus, in order to determine that the
structure was a dwelling, the district court engaged in judicial factfinding that went
beyond merely finding the existence of a prior conviction or the statutory elements
constituting the prior conviction. Thus, classifying the defendant's prior burglary
adjudication as a person felony violated his constitutional rights under Apprendi and
Descamps. For criminal history purposes, the Dickey court found that the district court
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should have classified Dickey's prior burglary adjudication as a nonperson felony. 301
Kan. 1018, Syl. ¶ 8.

Here, as in Dickey, the burglary statute in effect when Luton committed his
burglary did not require evidence showing that the burgled structure was a dwelling.
K.S.A. 21-3715 (Ensley 1981). Thus, classifying the crime as a person offense at
sentencing required the district court to go beyond merely finding the existence of a prior
conviction or the statutory elements constituting burglary, so classifying Luton's 1981
burglary conviction as a person offense violated his Sixth Amendment constitutional
rights as described in Apprendi and Descamps.

We conclude that the district court erred in summarily denying Luton's motion to
correct an illegal sentence based on the incorrect classification of Luton's 1981 burglary
conviction as a person offense. Luton's resulting sentence is therefore illegal, and we
must vacate it and remand for resentencing. On remand, the district court should classify
Luton's burglary conviction as a nonperson offense.

1984 aggravated burglary conviction

With respect to Luton's aggravated burglary conviction in 1984, at the time that
crime was committed aggravated burglary was not classified as either a person or
nonperson felony in Kansas. See K.S.A. 21-3716 (Ensley 1987). But Luton relies on
Murdock to challenge the classification of this crime as a person felony.

In Murdock, the Kansas Supreme Court held that out-of-state crimes committed
before the enactment of the KSGA in 1993 must be classified as nonperson offense for
criminal history purposes. 299 Kan. 312. But in Keel, our Supreme Court overruled
Murdock. For in-state pre-KSGA convictions, the Keel court directed that the sentencing
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court should look to the statute criminalizing the prior offense in effect on the date the
defendant committed the current crime of conviction. 302 Kan. at 590.

The ruling in Keel is consistent with recent amendments to the statute governing
classification of Kansas offenses for criminal history purposes. See L. 2015, ch. 5, sec. 1.
The new amendments clarify that all prior convictions and juvenile adjudications should
receive person/nonperson designations by comparing the crime to the comparable Kansas
offense in effect on the date the defendant committed the current crime of conviction.
The legislature specifically provided that the amendment should be construed and applied
retroactively. L. 2015, ch. 5, sec. 1(d)(2), (d)(3)(B), (e). Luton argues that applying the
amended statute to him would violate the Ex Post Facto Clause of Article I, Section 10 of
the United States Constitution. But Luton makes this argument only to seek application of
the holding in Murdock. Because Murdock has been overruled, Luton's ex post facto
argument is now moot.

Based on Keel, the district court did not err in classifying Luton's 1984 aggravated
burglary conviction as a person offense.

Right to be present at hearing

Finally, Luton claims that he was denied his statutory right to be present at the
hearing on his motion to correct an illegal sentence. But in light of our holding to remand
for resentencing based on the district court's incorrect classification of Luton's 1981
burglary, this claim is now moot.

Sentence vacated and case remanded for resentencing.