State v. Thompson

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NOT DESIGNATED FOR PUBLICATION

No. 114,667

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TERRY L. THOMPSON,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed April 29, 2016.
Affirmed.

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

Before MALONE, C.J., BUSER and BRUNS, JJ.

Per Curiam: Terry L. Thompson appeals the district court's denial of his motion
to correct an illegal sentence. We granted Thompson's motion for summary disposition in
lieu of briefs pursuant to Supreme Court Rule 7.041A (2015 Kan. Ct. R. Annot. 67).
Moreover, we note that the State filed a response to the motion for summary disposition
requesting that we affirm the district court's judgment.

On April 4, 2006, a jury found Thompson guilty of a robbery that occurred on or
about June 3, 2005. Thompson's presentence investigation report (PSI) revealed 12 prior
convictions, including 6 person felonies. Specifically, the PSI revealed that he previously
had been convicted of conspiracy to commit robbery, armed robbery, attempt to commit
robbery, and robbery and twice had been convicted of aggravated assault. Ten of the prior
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crimes occurred out of state and before the Kansas Sentencing Guidelines Act (KSGA)
became effective on July 1, 1993. See K.S.A. 21-4701 et seq.; L. 1992, ch. 239, sec. 1
(effective July 1, 1993).

At his sentencing hearing on August 7, 2006, the district court sentenced
Thompson to 130 months of imprisonment. Subsequently, he filed a direct appeal to this
court. On June 13, 2008, his conviction and sentence were affirmed, and the Kansas
Supreme Court denied Thompson's petition for review. See State v. Thompson, No.
97,845, 2008 WL 2423610 (Kan. App.) (unpublished opinion), rev. denied 286 Kan.
1185 (2008).

On June 24, 2014, Thompson filed a motion to correct 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 his motion, Thompson argued that the
district court should have classified his pre-1993 out-of-state convictions as nonperson
felonies. The district court appointed counsel for Thompson who filed a supplemental
motion. Nevertheless, the district court denied the motion to correct illegal sentence, and
Thompson appealed.

On appeal, Thompson acknowledges that the Keel decision overrules the Murdock
decision. In Keel, our Supreme Court held that "the classification of a prior conviction or
juvenile adjudication as a person or nonperson offense for criminal history purposes
under the [Kansas Sentencing Guidelines Act] is determined based on the classification in
effect for the comparable Kansas offense at the time the current crime of conviction was
committed." 302 Kan. at 589-90. Accordingly, we must compare Thompson's prior
convictions to the comparable Kansas offenses in 2005, when he committed his current
crime.

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In 2005, conspiracy to commit robbery, aggravated assault, armed robbery,
attempt to commit robbery, and robbery were scored as person offenses in Kansas. See
K.S.A. 21-3427 (aggravated robbery); K.S.A. 21-3426 (robbery); K.S.A. 21-3410
(aggravated assault); K.S.A. 21-3302(c) (conspiracy); K.S.A. 21-3301(c) (attempt). We,
therefore, conclude that the district court did not err in denying Thompson's motion to
correct an illegal sentence.

Affirmed.