State v. Neal

1

NOT DESIGNATED FOR PUBLICATION

No. 114,294

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ALDRED NEAL,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed July 29, 2016.
Affirmed.

Carl F.A. Maughan, of Maughan Law Group, of Wichita, for appellant.

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

Before MALONE, C.J., HILL and ATCHESON, JJ.

Per Curiam: Aldred B. Neal appeals the district court's denial of his motion to
correct illegal sentence. Neal claims the district court erred when it denied his motion and
failed to have him present at the hearing on his motion. Finding no error, we affirm.

On June 2, 1992, following a bench trial, Neal was convicted of two counts of
kidnapping and one count each of aggravated robbery, attempted aggravated robbery,
aggravated burglary, and aggravated battery of a law enforcement officer. On July 2,
1992, the district court sentenced Neal, in part, under the Habitual Criminal Act and
2

imposed a controlling indeterminate sentence of a minimum of 100 years' imprisonment
and a maximum of four life sentences plus 40 years' imprisonment. On December 9,
1994, our Supreme Court affirmed Neal's convictions and sentences. State v. Neal, No.
69,775, unpublished opinion filed December 9, 1994 (Kan.).

On September 15, 2014, Neal filed a pro se motion to correct illegal sentence. In
the motion, Neal argued that State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014),
overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct.
865 (2016), required the district court to reclassify his convictions as severity level 10
nonperson felonies and resentence him under the Kansas Sentencing Guidelines Act
(KSGA).

The district court appointed an attorney to represent Neal, and on December 2,
2014, Neal's attorney filed a motion to correct illegal sentence or to convert his sentence
from an indeterminate to a determinate or grid sentence under the KSGA. The motion
reasserted Neal's argument that Murdock made his sentences illegal and the district court
should reclassify his convictions as nonperson or unclassified offenses and resentence
him under the KSGA.

On April 10, 2015, the district court filed a journal entry that summarily denied
Neal's motion. The district court ruled that Neal's indeterminate sentences could not be
converted to grid sentences because they were presumptive imprisonment sentences
under the KSGA. The district court also ruled that Murdock did not provide a basis to
convert Neal's sentences. Neal timely appealed the district court's decision.

On appeal, Neal first claims the district court erroneously denied his motion to
correct illegal sentence. Neal argues that the district court should have converted his
indeterminate sentences to KSGA sentences because the reasoning of Murdock requires
all pre-1993 convictions to be classified as presumptive nonprison sentences making
3

them eligible for conversion. Neal notes that Murdock was overruled by State v. Keel,
302 Kan. 560, 357 P.3d 251 (2015). However, he argues that Keel is not a final decision
because a petition for certiorari has been filed with the United States Supreme Court.

The State responds that Murdock only applies to out-of-state pre-1993 convictions
and does not apply to Neal's in-state convictions. The State also argues that Murdock
does not apply because it was overruled by Keel, which is a final decision because the
United States Supreme Court denied certiorari.

When a district court summarily denies a motion to correct illegal sentence, an
appellate court's review is de novo because it has 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). A sentence is illegal when: (1) it is imposed by a court without jurisdiction; (2) it
does not conform to the applicable statutory provision, either in the character or the term
of authorized punishment; or (3) it is ambiguous with respect to the time and manner in
which it is to be served. State v. Trotter, 296 Kan. 896, 902, 295 P.3d 1039 (2013).

Neal's motion to correct illegal sentence, purportedly based on Murdock, was
actually a motion to convert his sentence from an indeterminate to a determinate or grid
sentence under the KSGA. When the Kansas Legislature adopted the KSGA, it provided
for the conversion of certain pre-KSGA indeterminate sentences to determinate or grid
sentences. K.S.A. 1993 Supp. 21-4704. Specifically, K.S.A. 1993 Supp. 21-4724(b)(1)
provided that defendants who committed crimes prior to July 1, 1993, shall have their
indeterminate sentences converted to a KSGA sentence if their convictions would have
fallen in a presumptive nonimprisonment grid box or a border box under the sentencing
guidelines. K.S.A. 1993 Supp. 21-4724(c) required the Department of Corrections to
determine whether a defendant was eligible for sentence conversion by July 1, 1993. If a
defendant was not eligible for sentence conversion on July 1, 1993, future events cannot
4

make the defendant eligible for conversion except for a reversal or new sentence imposed
as the result of an appeal. State v. Lunsford, 257 Kan. 508, 511, 894 P.2d 200 (1995).

Neal's indeterminate sentences were not converted on July 1, 1993, because his
convictions would have fallen into a presumptive imprisonment grid box under the
KSGA. Further, he has not received a reversal of his convictions or new sentence as a
result of an appeal. Thus, under K.S.A. 1993 Supp. 21-4724, Neal is not entitled to have
his indeterminate sentences converted to determinate or grid sentences under the KSGA.

Neal argues that the holding in Murdock somehow required the district court to
reclassify his convictions as nonperson felonies under the KSGA, thereby making his
sentences eligible for conversion. However, the Kansas Supreme Court recently rejected
an argument identical to the one being made by Neal in State v. Jeffries, 304 Kan. ___,
___ P.3d ___ (No. 113,116, filed July 1, 2016). In Jeffries, the defendant was convicted
in 1987 of felony murder and multiple counts of aggravated robbery, receiving a
controlling prison term of life without possibility of parole for 30 years. In 2014, the
defendant filed a motion to correct illegal sentence based on Murdock, which the district
court denied. On appeal, our Supreme Court found that "Murdock is neither controlling
nor analogous" to the defendant's argument that he was entitled to a sentence conversion.
Slip op. at 2. Because the defendant's convictions would have fallen into a presumptive
imprisonment grid box under the KSGA, the court concluded that his indeterminate
sentence was ineligible for conversion to a guidelines sentence. Slip op. at 7.

As our Supreme Court stated in Jeffries, Murdock is not applicable to sentence
conversion. The holding in Murdock only requires that pre-1993 out-of-state convictions
be classified as nonperson felonies when calculating a defendant's criminal history score.
Murdock, 299 Kan. at 319. Sentence conversion is controlled by K.S.A. 21-4724. Neal
was not eligible for sentence conversion on July 1, 1993, because his convictions would
have resulted in presumptive imprisonment sentences under the KSGA.
5

Moreover, our Supreme Court overruled Murdock in Keel. 302 Kan. 560. Keel
held that the classification of pre-KSGA convictions as person or nonperson offenses for
criminal history purposes is based on the classification of the comparable Kansas offense
at the time of the defendant's current crime of conviction. 302 Kan. at 590. Neal argues
that the mandate in Keel is stayed because a petition for certiorari to the United States
Supreme Court is pending. However, the petition for certiorari has been denied. Keel v.
Kansas, 136 S. Ct. 865. Keel is final and Murdock is no longer good law. Because there
was no basis to convert Neal's sentence to a grid sentence, the district court did not err
when it denied Neal's motion to correct illegal sentence.

Next, Neal claims the district court erred by failing to have him present at the
hearing on his motion to correct illegal sentence. Neal recognizes that the district court
had the authority to summarily deny his motion without a hearing. However, he argues
that the district court held a hearing on his motion and violated his statutory rights when
it failed to have him present for the hearing. The State responds that Neal's right to be
present was not violated because the district court summarily denied his motion and did
not hold a hearing.

When a defendant files a motion to correct illegal sentence, the district court shall
conduct an initial examination to determine if the motion raises substantial issues of law
or fact. State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015). If the district court
determines based on the motion, files, and records of the case that the defendant is not
entitled to relief, the motion may be summarily denied without a hearing or appointment
of counsel. 301 Kan. at 551. However, if the district court determines that a hearing is
necessary, the defendant has a right to be present at the hearing and have assistance of
counsel. K.S.A. 22-3504(1).

Neal's claim that the district court held a hearing on his motion is incorrect.
Instead, the record is clear that the district court summarily denied the motion without a
6

hearing. The order denying Neal's motion to correct illegal sentence stated that the
motion "[came] before the court for consideration" on April 10, 2015. The order
specifically stated "[t]his court summarily denies defendant's motion without a hearing
for the following reasons." The record on appeal does not contain a transcript of any
hearing on Neal's motion.

Our Supreme Court has made it clear that a hearing is not required on a motion to
correct illegal sentence when the motion, files, and records of the case show that the
defendant is not entitled to relief. Moncla, 301 Kan. at 551. Here, the district court
summarily denied Neal's motion without a hearing. Because the district court did not hold
a hearing on Neal's motion, it follows that the district court did not violate Neal's right to
be present at the hearing.

Affirmed.