State v. Rhoten

NOT DESIGNATED FOR PUBLICATION

No. 113,896

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EZEKIEL RHOTEN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DOUGLAS R. ROTH, judge. Opinion filed July 22, 2016.
Vacated and 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, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., LEBEN, J., and JOHNSON, S.J.

LEBEN, J.: Ezekiel Rhoten is serving a 100-month prison sentence on convictions
for aggravated burglary and robbery. He filed a motion in the district court to correct his
sentence, arguing that some of his past convictions had been improperly classified as
person crimes, which made his presumptive prison sentence longer under our state's
sentencing guidelines. The district court denied the motion, and Rhoten appealed to our
court.

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On appeal, the State concedes that if we reach the merits of Rhoten's claim, he's
"likely" right—two of his past convictions wouldn't be classified as person offenses if we
apply the ruling of our Supreme Court in State v. Dickey, 301 Kan. 1018, 1036-40, 350
P.3d 1054 (2015). But the State argues that we should: (1) conclude that we have no
jurisdiction to consider Rhoten's claim; (2) conclude that Rhoten waived his claim by
failing to make it on direct appeal; or (3) find that Dickey created a new rule that applies
only to future cases. (Rhoten's conviction and sentencing took place in 2012, 3 years
before Dickey, so the State argues that we cannot apply it to Rhoten's sentencing.)

We disagree with the State on each of these points. First, we have jurisdiction over
Rhoten's claim because a Kansas statute, K.S.A. 22-3504, specifically allows a motion to
correct an illegal sentence to be made "at any time." And the Dickey court held that a
motion under K.S.A. 22-3504 is an appropriate way to challenge whether a defendant's
criminal-history score was incorrectly determined. Second, since K.S.A. 22-3504 motions
may be brought at any time, Rhoten's failure to raise the claim on direct appeal doesn't
matter. Third, Dickey was just an application of the United States Supreme Court's
decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), and a later decision applying Apprendi, Descamps v. United States, 570 U.S. ___,
133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). Thus, because Dickey did not announce a new
rule, it can be applied in motions involving convictions that took place before Dickey and
that were already final when the motion was filed.

We therefore reach the substance of Rhoten's claim. We find that it has merit, so
we vacate his sentence and remand the case for resentencing. In the remainder of the
opinion, we will provide more detailed support for our conclusions.

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FACTUAL AND PROCEDURAL BACKGROUND

In October 2012, Rhoten pled no contest to one count of aggravated burglary and
one count of robbery. At sentencing, the district court found that Rhoten had a criminal-
history score of A, the most serious of nine potential scores, based in part on two 1985
Kansas burglary convictions that were classified as person felonies. Given the primary
offense (aggravated burglary) and Rhoten's criminal-history score, his presumptive
guidelines sentencing range for the aggravated burglary was 122 to 136 months in prison.

In exchange for Rhoten's plea, the State agreed to recommend that the district
court impose a decreased prison sentence of 100 months—what's known as a downward-
durational-departure sentence, since the sentence departs downward from the guideline
range. At sentencing, the State made that recommendation, while Rhoten argued for the
sentence to be reduced further (to 75 months) or for probation. The district court denied
Rhoten's requests and followed the State's recommendation, imposing a 100-month
sentence with 24 months of postrelease supervision.

Rhoten appealed his sentence but voluntarily dismissed that appeal in August
2013.

Nine months later, in May 2014, Rhoten filed a motion to correct an illegal
sentence, arguing that his criminal-history score had been incorrectly calculated under
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). In October 2014, he
filed another motion to correct an illegal sentence, that time arguing that his criminal-
history score had been incorrectly calculated under Dickey. In January 2015, the district
court denied Rhoten's motions without a hearing.

Rhoten then appealed to this court.
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ANALYSIS

Rhoten argues that the district court wrongly calculated his criminal-history score
(making his sentence illegal) because it classified his two 1985 burglary convictions as
person felonies rather than nonperson felonies as Dickey required. If those convictions
are reclassified as nonperson offenses, Rhoten's criminal-history score would drop from
A to B, and his presumptive guidelines sentence range for the aggravated robbery would
be 114 to 128 months rather than 122 to 136 months. (Rhoten has abandoned his
Murdock argument on appeal, presumably because Murdock has been overruled and is no
longer good law. See Keel, 302 Kan. at 589-90.)

In our review, whether on the State's procedural arguments or on the merits of
Rhoten's motion, the questions presented are legal ones that we must review
independently, without any required deference to the district court. See State v. Looney,
299 Kan. 903, 906, 327 P.3d 425 (2014) (jurisdiction); State v. Robertson, 298 Kan. 342,
344, 312 P.3d 361 (2013) (res judicata); State v. Luarks, 302 Kan. 972, 975-76, 360 P.3d
418 (2015) (motion to correct illegal sentence).

The State's Procedural Arguments

Before we get to the merits of Rhoten's claim, we must first determine whether we
can hear his appeal at all. The State argues that we lack jurisdiction under K.S.A. 22-
3504 because Rhoten is challenging his sentence on constitutional grounds, and our
Supreme Court has said, as a general matter, that defendants can't use K.S.A. 22-3504 to
challenge their sentences on constitutional grounds. State v. Lee, 304 Kan. 416, 417, 372
P.3d 415 (2016); State v. Warrior, 303 Kan. 1008, 1009-10, 368 P.3d 1111 (2016). But,
as the State also recognizes, our Supreme Court allowed a claim just like Rhoten's to be
heard on its merits in Dickey.
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Any analysis of K.S.A. 22-3504 must begin with the statute's terms: "The court
may correct an illegal sentence at any time." The Kansas Supreme Court has confined
"illegal sentence" as used in this statute to three situations: "'(1) a sentence imposed by a
court without jurisdiction; (2) a sentence that does not conform to the applicable statutory
provision, either in the 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.'"
Makthepharak v. State, 298 Kan. 573, 578, 314 P.3d 876 (2013); State v. Trotter, 296
Kan. 898, 902, 295 P.3d 1039 (2013). And in Dickey, the court said defendants can use
K.S.A. 22-3504 to challenge their criminal-history scores because such a challenge meets
the second definition of an illegal sentence: it's a claim that a sentence doesn't conform to
the applicable statutory provision. Dickey, 301 Kan. at 1034 (citing State v. Neal, 292
Kan. 625, 631, 258 P.3d 365 [2011]). The State argues that Dickey and Neal should be
overruled; our court, of course, does not overrule Kansas Supreme Court rulings.

Dickey held that when a constitutional challenge impacts a defendant's criminal-
history score, the challenge is within the strict definition of an illegal sentence because if
the criminal-history score is wrong, the sentence no longer complies with the sentencing
statutes. Dickey, 301 Kan. at 1034 (citing Neal, 292 Kan. at 631); see also State v.
Vasquez, 52 Kan. App. 2d 708, 712-14, 371 P.3d 946 (2016) (distinguishing claim that a
sentencing statute is unconstitutional from a claim that a constitutional error caused an
incorrect criminal-history score and illegal sentence); Luarks, 302 Kan. at 975-76.
Accordingly, we have jurisdiction to consider Rhoten's claim.

The State also argues that Rhoten's claim is barred by the legal doctrine called "res
judicata." In Latin, the phrase means "a thing adjudicated," and in legal doctrine, it means
that once a person has raised a particular issue before the court and the court has ruled on
that issue, that person isn't allowed to raise the same issue again. Black's Law Dictionary
1504 (10th ed. 2014); see Robertson, 298 Kan. at 344. Most of the time, res judicata also
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bars a party from raising a claim that could have been raised in a previous case but
wasn't. State v. Martin, 294 Kan. 638, 640-41, 279 P.3d 704 (2012); State v. Conley, 287
Kan. 696, 698, 197 P.3d 837 (2008). The State argues that since Rhoten didn't make this
argument in his direct appeal, he has waived it.

But res judicata only applies to motions to correct an illegal sentence if the claims
made in the motion were actually raised and ruled on in a previous case—it doesn't apply
if the defendant hasn't brought the claims before. State v. Martin, 52 Kan. App. 2d 474,
480-82, 369 P.3d 959 (2016), petition for rev. filed May 5, 2016; see Neal, 292 Kan. at
631 ("[T]he motion to correct illegal sentence is not subject to our general rule that a
defendant must raise all available issues on direct appeal."); Angelo v. State, No. 109,660,
2014 WL 1096834, at *3 (Kan. App. 2014) (unpublished opinion), rev. denied 301 Kan.
___ (January 8, 2015). The plain language of K.S.A. 22-3504 carves out this exception to
res judicata: "The court may correct an illegal sentence at any time." (Emphasis added.)
Thus, while K.S.A. 22-3504 "'may not be used as a vehicle to breathe new life into
appellate issues previously abandoned or adversely determined,'" Conley, 287 Kan. at
698 (quoting State v. Johnson, 269 Kan. 594, 602, 7 P.3d 294 [2000]), applying res
judicata when the illegal-sentence claim hasn't been brought before would undermine the
clear language and purpose of K.S.A. 22-3504. Vasquez, 2016 WL 1728688, at *4; see
Cain v. Jacox, 302 Kan. 431, Syl. ¶ 3, 354 P.3d 1196 (2015) (holding that courts applying
res judicata "must be mindful of the equitable purposes animating the doctrine"). So
Rhoten's claim is not barred by res judicata.

The State's third procedural argument is that the Dickey ruling, issued in 2015,
can't be applied to Rhoten, who was convicted and sentenced in 2012. As the State
correctly notes, Rhoten's motion to correct an illegal sentence is what's known as a
"collateral" attack, which is a challenge to a conviction or sentence that is brought after
the conviction and sentence have become final. They become final at the end of a
defendant's initial direct appeal, if one is filed. Rhoten did file an appeal, but he
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voluntarily dismissed it in August 2013. So his conviction and sentence became final in
August 2013, well before the 2015 Dickey ruling. The State argues that the Dickey ruling
can't be applied to Rhoten's case.

Both the finality of criminal judgments and fairness to defendants are at issue here
in this specific context—when court decisions have announced a new rule in the law. On
one hand, we have a strong interest in the finality of criminal judgments. We don't lightly
try cases over again, especially when many years may have passed and witnesses and
other evidence may have become unavailable. On the other hand, we want to be fair to
defendants and consider any valid legal arguments they might raise. The United States
Supreme Court and the Kansas Supreme Court have balanced these interests in the
context of judicial decisions that announce a new rule: That new rule is applied to all
cases that are then on direct appeal—but not to cases that have already become final.
Thus, a truly new rule won't benefit the defendant who is raising a collateral attack on a
criminal conviction or sentence after having already concluded (or waived) the direct
appeal. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987);
State v. Mitchell, 297 Kan. 118, Syl. ¶ 3, 298 P.3d 349 (2013).

To figure out whether the Dickey ruling applies to Rhoten's motion to correct an
illegal sentence, which is a collateral attack, we must determine whether Dickey
announced a new rule. "[A] case announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction became final." Teague v. Lane,
489 U.S. 288, 301, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality opinion). Dickey
didn't announce a new rule; it applied a constitutional rule announced by the United
States Supreme Court in its 2000 decision in Apprendi. Apprendi did announce a new
rule. Accordingly, its ruling has been applied only to cases pending and not yet final
when it was announced or to future cases. State v. Gould, 271 Kan. 394, 414, 23 P.3d 801
(2001); Vasquez, 52 Kan. App. 2d at 714; Martin, 52 Kan. App. 2d at 484. Rhoten's case
arose many years after Apprendi, so we apply its rule to him. And while Dickey also
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discussed another United States Supreme Court case that arose after Rhoten's conviction
had become final, the 2013 decision in Descamps, that case simply applied Apprendi; it
did not announce a new rule. Vasquez, 52 Kan. App. 2d at 713; Martin, 52 Kan. App. 2d
at 484. We therefore apply Dickey to Rhoten's case.

The State also briefly suggests that because Rhoten originally bargained for and
received a downward-durational-departure sentence (100 months when the standard
sentence was greater), we shouldn't consider his illegal-sentence claim or apply Dickey.
The State cites no authority for this proposition. Cf. State v. Quested, 302 Kan. 262, Syl.
¶ 1, 352 P.3d 553 (2015) ("An appellate court has jurisdiction to correct an illegal
sentence even if a defendant bargained for the sentence as part of a plea agreement.").
The State is correct that the 100-month sentence he received is still lower than the
guidelines sentencing range that would apply if his criminal-history score were reduced
from A to B. But courts can correct an illegal sentence at any time, even if it results (or
could result) in a higher sentence for a defendant. See State v. McCarley, 287 Kan. 167,
175, 195 P.3d 230 (2008) (holding that the State can challenge a sentence as illegal even
if it results in a more severe sentence for the defendant). So it's just not relevant to the
illegal-sentence inquiry that Rhoten's original departure sentence is lower than the
presumptive range that will apply at his resentencing. He is entitled to be sentenced with
the correct criminal-history score and presumptive sentencing range to guide the
sentencing judge.

With the State's procedural objections out of the way, we move now to the merits
of Rhoten's claim.

The Merits of Rhoten's Claim

To consider the merits of Rhoten's claim, we will need to compare the Dickey case
with Rhoten's, while keeping in mind the standards set out in Apprendi. Ultimately we
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must consider whether his sentence is illegal because his prior convictions were not
properly classified as person crimes.

In Dickey, the defendant pled guilty to felony theft, and the district court scored
his 1992 juvenile adjudication for burglary as a person felony. The defendant argued on
appeal that this classification violated his Sixth Amendment rights under Apprendi and
Descamps.

Apprendi held that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. Descamps
was primarily about the interpretation of a specific federal sentencing statute, but it
applied this principle from Apprendi when it explained how a federal sentencing court
should compare prior-conviction statutes to generic offenses when determining whether
the prior conviction is a violent felony that will increase a defendant's sentence. 133 S.
Ct. at 2281, 2288. Generally, a federal sentencing court can only compare the elements of
the relevant statutes and cannot look at the actual facts underlying the prior conviction
because doing so could result in the sentencing court finding sentence-enhancing facts
(that a prior felony conviction was a "violent felony," for example) that weren't proved to
a jury beyond a reasonable doubt (violating Apprendi). 133 S. Ct. at 2281-82. The
sentencing court can only consider the actual facts of the prior crime (using documents
such as indictments or jury instructions) when the prior-conviction statute is divisible—
that is, when it sets forth alternative elements of a given crime. In other words, when the
prior crime could have been committed in more than one way, the sentencing court is
allowed to find out how it was committed and therefore which elements of the prior-
conviction statute were applied to the defendant. 133 S. Ct. at 2281. The court can then
compare the relevant elements of the prior-conviction statute to the generic offense and
decide, based purely on these statutory elements, if the prior conviction was a violent
felony that would increase the sentence. 133 S. Ct. at 2285.
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In Dickey, the Kansas Supreme Court determined that Apprendi, as explained in
Descamps, applies to the Kansas Sentencing Guidelines Act because the Act requires the
court to classify prior convictions as person or nonperson crimes, which puts the court at
risk of finding a fact about a prior conviction—that it was a person crime—that will
increase a defendant's sentence but wasn't proved to a jury beyond a reasonable doubt.
See Dickey, 301 Kan. at 1039; K.S.A. 2015 Supp. 21-6809 (three person felonies results
in a criminal-history score of A, two results in a criminal-history score of B, and one
results in a C or D); K.S.A. 2015 Supp. 21-6811(d) and (e) (the facts required to classify
prior burglary convictions and prior out-of-state convictions shall be established by the
State by a preponderance of the evidence). For burglary in particular, "dwelling" is the
statutory element that determines the person or nonperson classification. K.S.A. 2015
Supp. 21-6811(d); K.S.A. 2015 Supp. 21-5807(a).

The burglary statute in effect when Dickey committed his prior burglary didn't
require evidence that the burglarized structure was a dwelling. Dickey, 301 Kan. at 1039.
Because the prior burglary statute didn't contain a dwelling element, determining whether
the defendant's prior burglary actually involved a dwelling at the criminal-history stage
"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. Therefore, the Dickey court concluded that "classifying
[the defendant's] prior burglary adjudication as a person felony violates his constitutional
rights as described under Descamps and Apprendi." 301 Kan. at 1021.

Here, just like in Dickey, the burglary statute in effect in 1985 didn't include a
"dwelling" element: burglary was "knowingly and without authority entering into or
remaining within any building, mobile home, tent or other structure, or any motor
vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or
property, with intent to commit a felony or theft therein." K.S.A. 21-3715 (Ensley 1981).
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So to classify Rhoten's 1985 burglary convictions as person crimes, the district court
necessarily found that those prior convictions involved a "dwelling," which is a fact only
a jury can find under Apprendi because it is the fact that makes burglary a person crime
and increases a defendant's sentence. Dickey, 301 Kan. at 1039-40; see State v. Cordell,
302 Kan. 531, 531-32, 354 P.3d 1202 (2015) (finding a 1986 burglary conviction should
have been classified as a nonperson crime under Dickey). Under Dickey, Rhoten's 1985
convictions should have been classified as nonperson felonies.

We vacate Rhoten's sentence and remand to the district court with directions to
reclassify the two 1985 burglary convictions as nonperson offenses and resentence
Rhoten.