State v. McClough

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NOT DESIGNATED FOR PUBLICATION

No. 114,030

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARK MCCLOUGH,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed July 15, 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 L. Schmidt,
attorney general, for appellee.

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

Per Curiam: In May 2005, Mark McClough was convicted of aggravated robbery
and aggravated escape from custody in two cases. His presentence investigation report
(PSI) calculated his criminal history score as A based upon a criminal history that
included three in-state person felonies: a 1984 burglary juvenile adjudication, a 1985
aggravated robbery conviction, and a 1991 aggravated robbery conviction. Following
sentencing McClough appealed.

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On appeal McClough argued that the district court violated his constitutional
rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), by using his prior convictions to enhance his sentence without requiring his
criminal history to be included in the complaint and proved to the jury beyond a
reasonable doubt. This court affirmed McClough's convictions and sentences. State v.
McClough, No. 96,322, 2007 WL 1964962 (Kan. App. 2007) (unpublished opinion), rev.
denied 285 Kan. 1176 (2007).

In June 2014, McClough moved to correct his claimed illegal sentences 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), cert.
denied 136 S. Ct. 865 (2016). This was followed by a second motion asserting that his
1984 burglary juvenile adjudication should have been classified as a nonperson offense
for purposes of calculating his criminal history score, based on State v. Dickey, 50 Kan.
App. 2d 468, 329 P.3d 1230 (2014), aff'd 301 Kan. 1018, 301 P.3d 1054 (2015).

In December 2014 the district court summarily denied McClough's motions, and
McClough appeals.

McClough claims the district court misclassified his prior juvenile adjudication
based on our Supreme Court's holding in Dickey. Whether a sentence is illegal under
K.S.A. 22-3504 is a question of law subject to de novo review. State v. Moncla, 301 Kan.
549, 551, 343 P.3d 1161 (2015).

The State concedes this adjudication would be scored as a nonperson offense
under Dickey if McClough were sentenced today, but it contends McClough's motion is
not the appropriate procedural vehicle to challenge his sentences.

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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).

But in State v. Warrior, 303 Kan. 1008, 1112, 368 P.3d 1111 (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, 714-17, 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 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.

McClough 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. McClough's claim based on Dickey is not
procedurally barred under Warrior and is within the scope of relief afforded by K.S.A.
22-3504.

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The State also argues that res judicata procedurally bars McClough's claim.
Whether res judicata applies is a question of law over which we have unlimited review.
State v. Robertson, 298 Kan. 342, 344, 312 P.3d 361 (2013).

Res judicata generally applies to all issues that were raised or could have been
raised in an appeal from a defendant's sentence or conviction. State v. Kingsley, 299 Kan.
896, 901, 326 P.3d 1083 (2014). The State relies on State v. Johnson, 269 Kan. 594, 602,
7 P.3d 294 (2000), in which our Supreme Court reiterated that a motion to correct an
illegal sentence "may not be used as a vehicle to breathe new life into appellate issues
previously abandoned or adversely determined." But K.S.A. 22-3504(1) provides a
limited exception to the general rule that a defendant must raise all available issues on
direct appeal. State v. Martin, 52 Kan. App. 2d 474, 481, 369 P.3d 959 (2016), petition
for rev. filed May 5, 2016; see Neal, 292 Kan. at 631. "'If a sentence is illegal, then the
court may correct an illegal sentence at any time despite a defendant's failure to raise the
issue on direct appeal.'" Martin, 52 Kan. App. 2d at 481 (quoting Angelo v. State, No.
109,660, 2014 WL 1096834, at *3 [Kan. App. 2014] [unpublished opinion], rev. denied
301 Kan. 1045 [2015]).

McClough did not challenge the calculation of his criminal history score in his
direct appeal. He only argued the enhancement of his sentence based on his prior
convictions violated his constitutional rights under Apprendi. McClough's present
challenge to the classification of his prior convictions is distinctly different. Based on
Neal and Martin, we find res judicata does not procedurally bar McClough's collateral
challenge to his sentences.

Finally, the State contends McClough's claim is procedurally barred because
Dickey may not be applied on collateral review of a sentence that was already final when
Dickey was filed. We rejected this argument in Martin, holding that Kansas courts may
correct an illegal sentence at any time, even after the time for a direct appeal has passed
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and a defendant's sentence is final. 52 Kan. App. 2d at 484. Further, Dickey was merely
an application of the constitutional rule announced in Apprendi and later clarified by
Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013).
McClough's claim seeking relief from an illegal sentence arose well after Apprendi. See
State v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001) ("[T]he new constitutional
sentencing rule established by Apprendi" applies in all cases arising after June 26, 2000.).
This procedural-bar argument fails.

Turning to McClough's substantive argument based on Dickey, the defendant in
Dickey challenged the classification of his pre-guidelines burglary adjudication as a
person offense, arguing it violated his Sixth Amendment rights under Apprendi and
Descamps. In Dickey, our Supreme Court determined the burglary statute in effect when
the defendant committed his prior burglary did not include any elements that referenced a
dwelling. Thus, a determination that the defendant burgled a dwelling "necessarily
involve[d] judicial factfinding that [went] beyond merely finding the existence of a prior
conviction or the statutory elements constituting that prior conviction." As a result,
"classifying [the defendant]'s prior burglary adjudication as a person felony violate[d] his
constitutional rights as described under Descamps and Apprendi." Dickey, 301 Kan. at
1021.

The facts in Dickey are factually indistinguishable from those now before us. The
controlling statute at the time McClough committed burglary did not require that the
burgled structure was a dwelling. See K.S.A. 21-3715 (Ensley 1981). But the comparable
burglary statute in effect at McClough's sentencing required the burgled structure to have
been a dwelling for the crime to be classified as a person offense. See K.S.A. 21-3715
(now K.S.A. 2015 Supp. 21-5807). Thus, in classifying McClough's prior burglary
adjudication as a person offense, the district court had to engage in judicial factfinding by
determining the burglary involved a dwelling in violation of Apprendi and Descamps.
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Next, based on Murdock, McClough argues his prior aggravated robbery
convictions should have been classified as nonperson felonies. In Murdock, our Supreme
Court held that out-of-state crimes committed before the enactment of the KSGA in 1993
must be classified as nonperson offenses for criminal history purposes. 299 Kan. 312,
Syl. ¶¶ 4-5. McClough asserts the same reasoning should apply to in-state convictions.
This argument was rejected in State v. Waggoner, 51 Kan. App. 2d 144, 155-56, 343 P.3d
530, rev. denied 303 Kan. ___ (2015). Besides, Murdock was overruled by State v. Keel,
302 Kan. 560, 589, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). In Keel, our
Supreme Court held that classification of pre-guidelines convictions is determined by
looking to the statute criminalizing the prior offense (if in-state) or to the comparable
offense statute (if out-of-state) in effect on the date the defendant committed the current
crime of conviction. 302 Kan. at 581.

McClough is not entitled to any relief based on Murdock. At the time of his crimes
in 2004, aggravated robbery in Kansas was a person felony. See K.S.A. 21-3427. Based
on Keel, the district court properly classified McClough's prior aggravated robbery
convictions as person offenses.

We conclude that while the district court correctly classified McClough's prior
aggravated robbery convictions, the court misclassified McClough's prior burglary
conviction as a person offense and, by doing so, imposed an illegal sentence because the
term of the punishment authorized did not comply with the applicable statutory provision.
Thus, we vacate McClough's sentences and remand the cases for resentencing based on
his recalculated criminal history score.

As his final point, McClough argues the district court violated his statutory right to
be present at the hearing on his motions to correct an illegal sentence. Under K.S.A. 22-
3504(1), a defendant has "a right to a hearing, . . . to be personally present and to have the
assistance of counsel at any proceeding for the correction of an illegal sentence." But the
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court did not convene any proceedings on McClough's motions; it summarily rejected
them. The protections of K.S.A. 22-3504 do not apply when a district court summarily
denies a motion to correct an illegal sentence. Makthepharak v. State, 298 Kan. 573, 576,
314 P.3d 876 (2013). Besides, this argument is moot based on our decision to vacate
McClough's sentences and remand for resentencing.

Sentence vacated and case remanded for resentencing.