State v. Penn

1
NOT DESIGNATED FOR PUBLICATION

Nos. 114,066
114,067
114,068
114,069
114,070

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN E. PENN,
Appellant.


MEMORANDUM OPINION

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

Submitted for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h).

Before STANDRIDGE, P.J, PIERRON, J., and JOHNSON, S.J.

Per Curiam: John E. Penn appeals the district court's decision to deny his motion
to correct an illegal sentence. We granted Penn's motion for summary disposition in lieu
of briefs pursuant to Supreme Court Rule 7.041A (2015 Kan. Ct. R. Annot. 67). The
State has filed a response and requested that the district court's judgment be affirmed.

In 1981, Penn pled guilty in case No. 80 CR 2124 to one count of theft. The
district court sentenced him to an indeterminate prison term of 1 to 10 years.
2
In 1982, Penn pled guilty in case No. 82 CR 1206 to one count each of burglary
and theft. The district court sentenced him to concurrent indeterminate prison terms of 2
to 10 years.

In 1988, Penn pled guilty in case No. 88 CR 896 to one count of theft. The district
court sentenced him to an indeterminate prison term of 1 to 2 years.

In 1990, Penn pled guilty in case No. 89 CR 2359 to one count of possession of
cocaine. The district court imposed an indeterminate prison sentence of 3 to 10 years.

In 1993, Penn entered a no contest plea in case No. 93 CR 567 to one count each
of robbery, making a false writing, and conspiracy to possess cocaine. The district court
sentenced him to an indeterminate prison term of 3 to 10 years.

Penn subsequently sought to have his sentences converted to guidelines sentences
under the Kansas Sentencing Guidelines Act. A panel of this court held that because Penn
was ineligible for retroactive application of the guidelines for his 1989 and 1993 crimes,
he was not eligible for retroactive application of the guidelines to his other offenses. State
v. Penn, No. 71,689, unpublished opinion filed August 25, 1995, rev. denied 258 Kan.
862 (1995).

In 2014, Penn filed a motion to correct an illegal sentence 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, Syl. ¶ 9, 357 P.3d 251
(2015), cert. denied 136 S. Ct. 865 (2016). In the motion, Penn requested that the district
court convert all of his indeterminate sentences to guidelines sentences. The district court
denied the motion, finding that the holding in Murdock "does not provide a basis for the
relief requested by the defendant." Penn timely appealed from that ruling.

3
On appeal, Penn challenges the district court's refusal to convert his indeterminate
sentences to guidelines sentences. As the district court concluded, however, the holding
in Murdock provided no authority for the district court to convert Penn's indeterminate
sentences to guidelines sentences. Moreover, our Supreme Court's holding in Murdock
has been overruled in Keel. Thus, the district court did not err in denying Penn's motion
to correct an illegal sentence.

Affirmed.