State v. Smith

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NOT DESIGNATED FOR PUBLICATION

No. 117,237

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BERNARD SMITH,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed May 18, 2018.
Reversed and remanded with directions.

Nicholas David, of The David Law Office LLC, of Topeka, for appellant.

Rachel L. Pickering, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

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

PER CURIAM: Bernard Smith appeals the district court's decision to deny his
motion to correct an illegal sentence. Specifically, Smith argues that his 1988 and 1990
burglary convictions were improperly classified as person crimes for criminal history
purposes, which resulted in an illegal sentence. Smith claims he is entitled to relief under
Descamps v. United States, 570 U.S. 254, 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), as
applied by the Kansas Supreme Court in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054
(2015) (Dickey I). We agree. Accordingly, we reverse and remand to the district court for
resentencing with a new criminal history score.
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FACTS

On July 6, 2007, Smith pled guilty to a single count of aggravated robbery, a
severity level 3 person felony, in exchange for the dismissal of several other charges. A
presentence investigation revealed that Smith had a criminal history score of A, based, in
part, on two burglary convictions from 1988 and 1990. On September 26, 2008, the
district court sentenced Smith to 221 months in prison, the standard presumptive sentence
under the Kansas Sentencing Guidelines Act (KSGA) based on Smith's criminal history
score of A.

On August 12, 2015, Smith filed a motion to correct an illegal sentence, relying on
the Kansas Supreme Court's decision in Dickey I to challenge the district court's decision
to include his prior burglary convictions as person felonies in his criminal history. In
response, the State argued that the holding in Dickey I did not apply retroactively to
Smith's sentence, which was final prior to that ruling.

After hearing arguments from both counsel at a nonevidentiary hearing, the court
summarily denied Smith's motion. The court began its ruling by noting that
"[c]onstitutional challenges to an illegal sentence are not permitted because 'the definition
of an illegal sentence does not include a claim that the sentence violates a constitutional
provision.'" The court then held that "while it is possible that [Smith]'s sentence could be
a violation of Apprendi, Dickey [I] does not allow him to raise a constitutional challenge
in a post-direct appeal motion to correct an illegal sentence." Smith filed a motion to alter
or amend judgment and a motion for additional findings of fact and conclusions of law,
both of which the court denied. Smith timely appeals.




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ANALYSIS

Smith argues the district court erred by denying his motion to correct an illegal
sentence. "The court may correct an illegal sentence at any time." K.S.A. 2017 Supp. 22-
3504(1). When a district court summarily denies a motion to correct an illegal sentence,
this court applies a de novo standard of review. State v. Gray, 303 Kan. 1011, 1013-14,
368 P.3d 1113 (2016). Likewise, 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. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).

The term "illegal sentence" is defined in K.S.A. 2017 Supp. 22-3504(3):

"'Illegal sentence' means a sentence: Imposed by a court without jurisdiction;
that does not conform to the applicable statutory provision, either in character or
punishment; or that is ambiguous with respect to the time and manner in which it is to be
served at the time it is pronounced. A sentence is not an 'illegal sentence' because of a
change in the law that occurs after the sentence is pronounced."

Smith challenges his sentence based on the second definition of an illegal
sentence: His sentence does not conform to the applicable statutory provision in terms of
the punishment authorized. Specifically, Smith argues that the burglary statute upon
which his 1988 and 1990 burglary convictions were based did not include the dwelling
element required to classify the crimes as person felonies; thus, the sentencing court was
constitutionally prohibited from classifying them as person felonies for criminal history
purposes. Smith claims the sentencing court's misclassification in this regard resulted in a
higher criminal history score which, in turn, caused the court to impose an illegal
sentence that did not conform to the applicable statutory provision in terms of the
punishment authorized. Smith asserts that the district court's ruling below—that he was
procedurally barred from raising a constitutional challenge in a motion to correct an
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illegal sentence—has since been rejected by the Kansas Supreme Court in State v.
Dickey, 305 Kan. 217, 380 P.3d 230 (2016) (Dickey II).

The decisions in Dickey I and II were based on the principles set forth by the
United States Supreme Court in Apprendi. Thus, our analysis begins with Apprendi,
where a majority of the Court relied upon the Sixth and Fourteenth Amendments to the
United States Constitution to hold 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. The
United States Supreme Court later held in Descamps, 570 U.S. at 269-70, that when the
prior crime of conviction is broader than the generic crime to which it is being
compared—requiring the court to look beyond the mere fact of a conviction and examine
the facts that gave rise to the conviction—the right to a jury trial under the Sixth
Amendment is implicated.

The Kansas Supreme Court adopted the reasoning in Apprendi and Descamps for
the first time in Dickey I, 301 Kan. at 1038-39. There, the court held that a conviction for
burglary under the statutory definition of the crime in place before adoption of the KSGA
in 1993 generally should be scored as a nonperson felony for criminal history purposes.
A burglary could be treated as a person felony only if the crime involved a dwelling—a
case-specific factual finding that would have to be made by a jury rather than the district
court, consistent with a criminal defendant's right to a jury trial preserved in the Sixth
Amendment as outlined in Apprendi. 301 Kan. at 1021.

Although Smith's situation is factually similar to that in Dickey I, the district court
distinguished Smith's case on grounds that Dickey I was a direct appeal, while Smith's
case involved a motion to correct an illegal sentence. Thus, the court reasoned, Smith's
Dickey I-based argument was a constitutional challenge to his sentence and not an illegal
sentence claim that could be raised at any time under K.S.A. 2017 Supp. 22-3504(1).
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Smith correctly notes that the Kansas Supreme Court rejected this exact argument
in Dickey II. Like Smith's case, Dickey II was not a direct appeal. It was an appeal from
the revocation of probation in multiple cases consolidated for appeal, in which Dickey
challenged the legality of the underlying sentences imposed when probation was initially
granted. The Dickey II court concluded that because an illegal sentence can be corrected
at any time, "the procedural distinctions . . . between Dickey I and Dickey II fade into
irrelevance and the substantive holding of Dickey I must control." 305 Kan. at 219. The
court reasoned:

"[T]he challenge presented to Dickey's sentences in both Dickey I and [Dickey II] are
challenges to the statutory propriety of the classification at issue—albeit with a thick
overlay of constitutional law . . . —there is no impediment to Dickey's claim that the
underlying sentences he received after his probation was revoked in the three underlying
cases are illegal. And that claim is identical to, and controlled by, our determination in
Dickey I that the exact prior conviction at issue here was in fact misclassified. The State's
remaining efforts to impose a procedural bar to the relief Dickey seeks—arguments
concerning retroactivity and res judicata—are all unavailing in the context of a motion to
correct an illegal sentence which can be made at any time." 305 Kan. at 221-22.

Under Dickey II, the district court erred in finding that Smith's claim involved a
constitutional challenge that could not be considered in a motion to correct an illegal
sentence.

Nevertheless, the State asserts that Smith's claim is barred by the 2017 amendment
to K.S.A. 22-3504. The Legislature amended K.S.A. 22-3504, effective May 18, 2017, by
adding subsection (3) to state, in relevant part, that "[a] sentence is not an 'illegal
sentence' because of a change in the law that occurs after the sentence is pronounced."
K.S.A. 2017 Supp. 22-3504(3).

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In State v. Dawson, 55 Kan. App. 2d 109, 117, 408 P.3d 995 (2017), petition for
rev. filed January 8, 2018, a panel of this court determined that the amendment to K.S.A.
22-3504 is procedural and applies retroactively because it "define[s] and limit[s] the
scope of a statutorily created procedure by which a person convicted of a crime can seek
correction of a sentence." The Dawson panel further examined whether the rulings in
Dickey I and II constituted "a change in the law" as that phrase is used in K.S.A. 2017
Supp. 22-3504(3). The panel noted that "[t]he Apprendi principles that were at the core of
the holdings in Dickey I and II did constitute such a change." 55 Kan. App. 2d at 117.
The panel reasoned that Dawson's argument was foreclosed under K.S.A. 2017 Supp. 22-
3504(3) because his sentence was final before the decision in Apprendi and was,
therefore, legal when it was pronounced:

"The law concerning the classification of pre-KSGA convictions changed with
the application of Apprendi and Descamps in Dickey, giving life to Dawson's argument
that his sentence was illegal because of the steps the district court would need to take to
classify his 1992 burglary conviction as a person felony. Without Apprendi, that
argument was unavailable to him. Since Dawson's sentence was final before Apprendi,
the analysis developed in Dickey I and II—which was founded on the principles of
Apprendi—could not have rendered his sentence illegal at the time it was imposed. The
analysis and holdings of our Supreme Court in Dickey I and II were not merely
restatements of that court's prior decisions or applications of earlier holdings to different
facts, they were a change in the law. The classification methods that Dickey II called
'constitutionally infirm' were infirm because they conflicted with Apprendi, which [State
v.] Gould[, 271 Kan. 394, 414, 23 P.3d 801 (2001),] held will not be applied to claims
final before Apprendi was issued." 55 Kan. App. 2d at 117-18.

Despite the fact that Smith's sentence was final in 2008, well after the Apprendi
decision, the State suggests that Smith's argument is similarly foreclosed by the
amendment to K.S.A. 2017 Supp. 22-3504(3) because both Dickey I and Descamps
constituted a change in the law that occurred after Smith was sentenced.

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The State's argument is flawed. Unlike Dawson, who received a legal sentence
prior to Apprendi, Smith's post-Apprendi sentence was illegal at the time it was imposed
because it did not conform to the applicable statutory provision with respect to the
punishment authorized. As a result, Smith did not need to rely on a change in the law
after sentencing to make his sentence illegal. The subsequent holdings in Descamps and
Dickey I did not change the law with respect to Smith's already illegal sentence; instead,
they simply provided a method for evaluating whether a sentencing court violates
Apprendi in determining a defendant's criminal history score. See, e.g., State v. Thomas,
53 Kan. App. 2d 15, 24, 383 P.3d 152 (2016) ("[T]he court's holding in Dickey [I] is not a
'change in the law' under [a retroactivity] analysis, but rather an application of the
constitutional rule announced in Apprendi and clarified by Descamps."), rev. denied 306
Kan. 1330 (2017); State v. Martin, 52 Kan. App. 2d 474, 484, 369 P.3d 959 (2016)
("Apprendi was the basis for the ultimate holding in Dickey [I]. . . . Descamps provided a
means by which to determine whether certain sentencing determinations violated
Apprendi, and Dickey [I] applied that framework to Kansas criminal history
determinations."), rev. denied 305 Kan. 1256 (2017).

The district court erred when it found that Smith's motion to correct his illegal
sentence was procedurally barred. The burglary statute in effect at the time Smith
committed both his 1988 and 1990 burglaries did not contain the dwelling element
required to classify the crimes as person felonies. See K.S.A. 21-3715 (Ensley 1988);
K.S.A. 1989 Supp. 21-3715. Under the legal principles set forth in Dickey I, the
sentencing court violated Smith's constitutional rights by finding that the burglaries at
issue involved a dwelling. As a result, the sentencing court erroneously misclassified
those prior burglaries as person felonies for purposes of calculating Smith's criminal
history score, which resulted in an illegal sentence that did not comply with the
applicable statutory provision regarding the term of punishment authorized.

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Reversed and remanded with directions for the district court to reclassify Smith's
1988 and 1990 burglary convictions as nonperson felonies for criminal history purposes
and resentence Smith based on the correct criminal history score.