State v. Montes

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NOT DESIGNATED FOR PUBLICATION

No. 113,688


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHNNY MONTES,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed May 20, 2016.
Sentence vacated and case remanded with directions.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

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

Before HILL, P.J., STANDRIDGE and ATCHESON, JJ.

Per Curiam: Johnny Montes appeals the district court's denial of his motion to
correct an illegal sentence. Specifically, he argues that the district court imposed an
illegal sentence when it classified a 1989 pre-Kansas Sentencing Guidelines Act (KSGA)
juvenile adjudication for burglary as a person felony for criminal history purposes.
Montes claims he is entitled to relief under our Kansas Supreme Court's holding in State
v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). We agree.


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We begin with Montes' conviction.

Montes was convicted of rape, two counts of aggravated criminal sodomy, and
aggravated kidnapping. A presentence investigation report indicated that Montes was in
criminal history category C based in part on a 1989 Kansas juvenile adjudication for
"Burglary of Dwelling," which was scored as a person felony. Montes did not object to
his criminal history score at the sentencing hearing. The district court imposed a
controlling sentence of 340 months' imprisonment with 36 months' postrelease
supervision. A panel of this court affirmed Montes' convictions on direct appeal, and the
Kansas Supreme Court denied review on June 12, 2001. See State v. Montes, 28 Kan.
App. 2d 768, 769, 21 P.3d 592, rev. denied 271 Kan. 1040 (2001).

In 2014, Montes moved to correct an illegal sentence. In his motion, Montes
argued that based on the Kansas Supreme Court's holding in 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), his 1989 Kansas juvenile adjudication for burglary should have been
classified as a nonperson felony. Therefore, Montes argued his criminal history score
should have been G instead of C and he should be resentenced with the correct criminal
history score.

Later, in October 2014, Montes filed a second motion to correct his illegal
sentence. In this motion, Montes argued that based on this court's decision in State v.
Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), aff'd 301 Kan. 1018, 350 P.3d 1054
(2015), his 1989 Kansas juvenile adjudication for burglary should have been classified as
a nonperson felony. Montes again alleged that this would have resulted in his criminal
history score being G instead of C, thus making the sentence illegal. The State responded
to both motions, arguing in part that Montes' stipulation to his criminal history score at
sentencing and failure to challenge his sentence on direct appeal barred any subsequent
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challenge to his sentence, the holding in Dickey should not be retroactively applied to
Montes' case, and Dickey was not controlling as the petition for review was pending.

The district court summarily denied both motions. The district court ruled that
Montes was procedurally barred from collaterally attacking his sentence, Murdock only
applied to pre-1993 out-of-state convictions, Dickey did not apply because it conflicted
with other decisions of this court and was not a final decision, and both Murdock and
Dickey did not apply retroactively. Montes appealed the summary denial of both motions.

The district court erred in calculating Montes' criminal history score.

In this appeal, Montes only seeks relief under his motion to correct an illegal
sentence based on our Supreme Court's holding in Dickey. He has abandoned his motion
to correct an illegal sentence based on Murdock.

K.S.A. 22-3504(1) provides that the court may correct an illegal sentence at any
time. This court applies a de novo standard of review when a district court summarily
denies a motion to correct an illegal sentence under K.S.A. 22-3504 because we have the
same access to the motion, records, and files as the district court. Makthepharak v. State,
298 Kan. 573, 577, 314 P.3d 876 (2013).

Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question
of law over which the appellate court has unlimited review. State v. Taylor, 299 Kan. 5,
8, 319 P.3d 1256 (2014). An illegal sentence under K.S.A. 22-3504 is:

"(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not
conform to the applicable statutory provision, either in character or the term of authorized
punishment; or (3) a sentence that is ambiguous with respect to the time and manner in
which it is to be served." Taylor, 299 Kan. at 8.
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Montes argues that Dickey is dispositive with regard to his 1989 Kansas juvenile
adjudication for burglary. We agree.

In Dickey, the defendant argued that the district court's classification of his 1992
pre-KSGA burglary adjudication as a person felony violated his constitutional rights as
described in Descamps v. United States, 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). Applying Descamps and Apprendi, the Kansas Supreme Court determined that
the burglary statute in effect when the defendant committed his prior burglary did not
include any elements that referenced a dwelling. 301 Kan. at 1039. Our Supreme Court
explained that because the burglary statute did not include a dwelling element, any
determination by the district court whether the defendant's burglary involved a dwelling
"would necessarily involve judicial factfinding that goes beyond merely finding the
existence of a prior conviction or the statutory elements constituting that prior
conviction." 301 Kan. at 1021. The court concluded that the district court's classification
of that prior burglary as a person felony violated the defendant's constitutional rights
under Descamps and Apprendi, and the district court should have classified the
defendant's 1992 burglary conviction as a nonperson felony for purposes of calculating
his criminal history score. Dickey, 301 Kan. at 1021, 1039-40.

Similar to Dickey, because the pre-KSGA statute under which Montes was
adjudicated for burglary in 1989—K.S.A. 1989 Supp. 21-3715—did not include a
dwelling element, the district court's person classification necessarily required judicial
factfinding. Accordingly, the classification of Montes' 1989 burglary adjudication as a
person felony violates his constitutional rights as described in Apprendi and Descamps
and as applied by the Kansas Supreme Court in Dickey. Montes' 1989 burglary
adjudication should have been classified as a nonperson felony. See Dickey, 301 Kan. at
1039-40; see also State v. Martin, No. 113,189, 2016 WL 852130, at *8 (Kan. App.
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2016) (finding that defendant's two 1990 Kansas juvenile adjudications for burglary
would be scored as nonperson offenses under the holding in Dickey).

The State does not dispute the contention that if Montes was being sentenced
today his 1989 Kansas juvenile adjudication for burglary would be scored as a nonperson
offense under the holding in Dickey. Instead, the State argues this court should not reach
the merits of Montes' claim for three reasons: the doctrine of res judicata bars Montes'
challenge to his criminal history score, Dickey should not be retroactively applied to a
case which was final before Dickey was decided, and Montes cannot file a motion to
correct illegal sentence based on a constitutional challenge to his sentence. This court
recently rejected these identical arguments in Martin, 2016 WL 852130.

Martin held that the doctrine of res judicata does not act as a waiver "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," and that barring 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." 2016 WL 852130, Syl. ¶¶ 4-5. Martin also held that a claim under Dickey
may be brought in a motion to correct an illegal sentence after the time for direct appeal
has passed and the defendant's sentence is final because the general rule prohibiting
retroactive application of an appellate court decision is superseded by the legislative
directive in K.S.A. 22-3504(1) that courts may correct an illegal sentence at any time.
2016 WL 852130, at *6. Finally, Martin held that a motion to correct an illegal sentence
under K.S.A. 22-3504 is the proper vehicle for raising a constitutional challenge to a
sentence that results in the determination that the defendant's criminal history score is
incorrect. 2016 WL 852130, at *7. In such instances, the resulting sentence does not
conform to the statutory provision in the term of the punishment authorized and,
consequently, is an illegal sentence that this court has jurisdiction to correct at any time.
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Martin, 2016 WL 852130, at *7; see State v. Kelly, 298 Kan. 965, Syl. ¶ 5, 318 P.3d 987
(2014). We find the reasoning in Martin persuasive.

Because the sentencing court misclassified Montes' prior adjudication as a person
offense for purposes of calculating his criminal history, Montes' claim here is identical to
claims where Kansas courts have held that K.S.A. 22-3504 is the proper procedure to
challenge an illegal sentence. See State v. Luarks, 302 Kan. 972, 975, 360 P.3d 418
(2015) (a claim challenging misclassification of prior convictions as person offenses
"necessarily raise[s] a claim that the current sentence is illegal because it does not comply
with the applicable statutory provision regarding the term of punishment authorized");
Dickey, 301 Kan. at 1034 (a legal challenge to the classification of a prior adjudication or
conviction for purposes of lowering a defendant's criminal history score is a claim that
can be raised for first time on appeal in a motion to correct illegal sentence under K.S.A.
22-3504); State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011) (challenge to criminal
history score necessarily challenges the sentence that criminal history score helped
produce; if criminal history score is wrong then resulting sentence cannot conform with
statutory provision governing term of punishment authorized).

Thus, Montes' claim falls squarely within the scope of relief afforded by the
legislature under K.S.A. 22-3504 and his motion to correct an illegal sentence is properly
before the court as a challenge to a "sentence that does not conform to the applicable
statutory provision, either in character or the term of authorized punishment." See State v.
Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 (2014).

Montes' 1989 Kansas juvenile adjudication for burglary was improperly classified
as a person felony under Dickey. Accordingly, we vacate Montes' sentence and remand
for resentencing with directions to classify Montes' 1989 adjudication for burglary as a
nonperson offense for criminal history purposes.

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Sentence vacated and case remanded with directions.