State v. Nance

NOT DESIGNATED FOR PUBLICATION

No. 117,971

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

STEVEN W. NANCE,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed June 15, 2018. Affirmed.

Sam S. Kepfield, of Hutchinson, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., LEBEN and SCHROEDER, JJ.

LEBEN, J.: Steven Nance appeals the district court's denial of his motion to correct
an illegal sentence. He was convicted of five counts of indecent liberties with a child that
took place in March 1993, before the July 1, 1993 effective date of the Kansas
Sentencing Guidelines Act. Because of that, Nance was sentenced under the previous
Kansas sentencing laws under which many sentences were of indeterminate length. The
district court sentenced Nance in 1993 to serve a term of 5 to 20 years for each offense—
and the court made those sentences consecutive to one another.

When the Legislature enacted the Sentencing Guidelines Act, it provided that
some offenders' sentences calculated under the previous law might be converted to a
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guidelines sentence. See K.S.A. 21-4724 (Furse 1995). The conversion process would not
be used if it would result in a longer sentence, K.S.A. 21-4724(f) (Furse 1995), and only
certain offenders would qualify for conversion at all. K.S.A. 21-4724(b)(1) (Furse 1995).

To determine whether conversion could occur, the first step was to determine how
the defendant's crimes would be classified under the Sentencing Guidelines Act. For
nondrug offenses, it placed the crimes into severity levels (with level 1 the most serious
and level 10 the least serious) and the defendant's criminal history into categories (with A
the most serious and I the least serious). A person's presumptive sentence would be found
on a grid formed by the severity level of the crime and the criminal-history category. See
K.S.A. 21-4704 (Furse 1995).

Although Nance committed his crimes before July 1, 1993, he was sentenced after
that date. That meant that the sentencing judge was required to sentence him under the
law that applied at the time of his offense while also calculating a guideline sentence to
see whether the defendant might qualify for conversion to a lesser, guidelines sentence.
See K.S.A. 21-4724(f) (Furse 1995); State v. Fierro, 257 Kan. 639, Syl. ¶ 4, 895 P.2d
186 (1995). Eligibility depends on a comparison of the defendant's criminal acts to the
guidelines sentence that would have applied as of July 1, 1993. State v. Lee, 306 Kan.
624, Syl., 395 P.3d 418 (2017).

Nance argues in his motion to correct illegal sentence that he should have been
eligible for conversion to a guidelines sentence. In support of that claim, he makes
several arguments that the sentencing judge in his case erred in determining Nance's
criminal-history score. But even if that were true, Nance would not be eligible for
conversion to a guideline sentence. That's because the offenses he committed were
classified, under the guidelines, as a severity-level 3 offense—and defendants committing
such a serious offense weren't eligible for conversion to a guideline sentence, no matter
their criminal-history score. See K.S.A. 21-4724(b)(1) (Furse 1995).
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Nance was convicted of five acts of indecent liberties against a child. His three
victims—M.T., R.R., and C.Z.—were young girls. M.T. and R.R. were both 7-year-old
second-graders. C.Z. was 9 and in the fourth grade.

The ages of the victims are important because they determine how the crimes
would have been classified under the Sentencing Guidelines Act. For victims under the
age of 14, had these crimes been committed after July 1, 1993, they would have been
renamed aggravated indecent liberties with a child—aggravated because the children
involved were under age 14. See K.S.A. 21-3504(a)(3) (Furse 1995). And with victims
under age 14, that crime was categorized as a severity-level 3 felony under the guidelines.
K.S.A. 21-3504(c) (Furse 1995).

That's critical because conversion sentences weren't available to a defendant
whose nondrug offense was severity-level 4 or greater. See K.S.A. 21-4724(b)(1) (Furse
1995). So in a case in which the defendant—like Nance—had committed a crime that
would be categorized as a severity-level 3 offense under the guidelines, the Kansas
Supreme Court said that "the defendant [was] ineligible for sentencing guidelines
conversion" for that reason. State v. Lunsford, 257 Kan. 508, 511, 894 P.2d 200 (1995);
see also State v. Jeffries, 304 Kan. 748, 752-53, 375 P.3d 316 (2016) (noting that
defendant whose crime would be categorized as a severity-level 3 offense under the
guidelines would not qualify for sentence conversion).

This is not the first time Nance has raised this issue, and both our court and the
Kansas Supreme Court have noted that Nance's sentences are not eligible for conversion
to a guidelines sentence. In 2002, we wrote:

"This record shows one of the victims was nine years old and the other seven
years old. As such, petitioner was properly classified as a level 3 offender for conversion
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purposes. Furthermore, petitioner does not challenge the fact that he was given a criminal
history score of A, which, even if he was classified as a level 5 offender, would preclude
conversion of his indeterminate sentence." State v. Nance, No. 87,136, Kan. App.
unpublished opinion filed April 5, 2002, slip op. at 3.

While Nance does now challenge whether his criminal-history score should have been
category A, that has no effect on whether his sentence can be converted to a guidelines
sentence if at least one of his offenses was a severity-level 3 offense. That alone makes
conversion unavailable. K.S.A. 21-4724(b)(1) (Furse 1995); Lunsford, 257 Kan. at 511.
Similarly, the Kansas Supreme Court, in its 2015 summary denial of a sentencing appeal
from Nance, said that he wasn't eligible for sentence conversion:

"Appellant's pre-1993 convictions are not eligible for conversion pursuant to the Kansas
Sentencing Guidelines Act. See K.S.A. 21-4724(b)(1) (1995 Furse) (for crimes
committed before July 1, 1993, sentences will only be converted if the offenses could be
classified as presumptive nonimprisonment or as 5-H, 5-I, or 6-G on the nondrug
sentencing grid); State v. Lunsford, 257 Kan. 508, 510[, 894 P.2d 200] (1995) ("If a
defendant is ineligible for conversion on any crime being served, he or she is ineligible
for retroactive application of the sentencing guidelines."). State v. Nance, No. 114,387
(Kan. order dated November 25, 2015) (unpublished opinion).

Because of the severity-level of his offenses, Nance isn't eligible for conversion to
a guidelines sentence. Even if there was some error in his criminal-history category, that
would not affect his sentences. So the district court properly denied his motion to correct
an illegal sentence.

We affirm the district court's judgment.