State v. Tolen

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NOT DESIGNATED FOR PUBLICATION

No. 119,457

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GARNET C. TOLEN JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed August 16,
2019. Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., STANDRIDGE, J., and NEIL B. FOTH, District Judge, assigned.

PER CURIAM: Garnet C. Tolen Jr. appeals the district court's summary denial of
his motion to correct an illegal sentence. Tolen contends his sentence is illegal because
the district court engaged in improper fact-finding when it classified his 1994 New Jersey
conviction for aggravated criminal sexual contact as a felony rather than a misdemeanor.
This contention has been thoroughly litigated and there is no need to look at it again.
Tolen's sentence was lawful in 1999 from when it was imposed to when it was affirmed
by this court in 2002. No later changes in caselaw alter that fact. We affirm the dismissal
of his motion.

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Tolen is serving a sentence for convictions of rape and aggravated criminal
sodomy. His presentence investigation report stated his criminal history included three
prior person felonies—kidnapping in Geary County, robbery in Fort Leavenworth, and
aggravated criminal sexual contact in New Jersey. Tolen objected to his criminal history
classification, arguing that his 1994 New Jersey conviction for aggravated criminal
sexual contact should be scored as a person misdemeanor rather than a person felony.

At his sentencing, the court ruled that the New Jersey conviction should be scored
as a person felony. With that holding, the court set Tolen's criminal history score at A and
sentenced him to 740 months in prison.

Tolen appealed. State v. Tolen, No. 84,058, unpublished opinion filed January 11,
2002 (Kan. App.). In his direct appeal, Tolen objected to the classification of his New
Jersey conviction of aggravated criminal sexual contact as a person felony and argued
that it should be classified as a person misdemeanor. A panel of this court found the
district court had properly classified his New Jersey conviction as a felony by comparing
it to the Kansas crime of aggravated sexual battery, a severity level 5 person felony. See
K.S.A. 21-3518(a), (b). This court affirmed Tolen's convictions and sentence. Tolen, No.
84,058, slip op. at 8-10.

Tolen continues his attack on his criminal history score.

After Tolen's direct appeal, he collaterally attacked his sentence. In 2005, Tolen
filed a K.S.A. 60-1507 motion, which was denied by the district court as untimely. The
Kansas Supreme Court later affirmed the dismissal of this motion as untimely in Tolen v.
State, 285 Kan. 672, 676, 176 P.3d 170 (2008).

Tolen then filed a pro se motion to correct an illegal sentence in his civil K.S.A.
60-1507 case, contending that his New Jersey conviction was improperly classified. The
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court denied Tolen's motion, finding that the motion to correct an illegal sentence was
improperly filed in his civil case rather than in his criminal case. The court noted that the
issue raised had been previously litigated and decided. Tolen did not appeal this decision.

Once again, Tolen filed a pro se motion to correct an illegal sentence, challenging
the classification of his New Jersey conviction. This time, Tolen relied on State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (Murdock I), overruled by State v. Keel,
302 Kan. 560, 375 P.3d 251 (2015), which held that all pre-1993 out-of-state convictions
should be scored as nonperson felonies. The State responded that Tolen's motion was
premature because a motion to reconsider was pending in Murdock I. The district court
took Tolen's motion under advisement pending the outcome of the motion to reconsider
in Murdock I.

Later—this time represented by counsel—Tolen filed a "Motion for Correction of
Sentence," alleging that under the holding in Murdock I, his criminal history score was
improperly scored as A. The next day, the district court ordered that both Tolen's pro se
motion and his motion to correct an illegal sentence be taken under advisement until
Murdock I was resolved. The State responded to the pending motions, denying the
applicability of Murdock I and further arguing that it was wrongfully decided. In
response, Tolen filed a motion advocating additional grounds for relief under Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

After that, Tolen filed an amended motion for correction of an illegal sentence,
essentially reiterating the applicability of Murdock I and Apprendi to his case.

The district court denied the pending motions to correct an illegal sentence,
finding that Murdock I and Apprendi did not apply to alter Tolen's criminal history score.
Tolen appealed. In turn, this court ordered Tolen to show cause why his appeal should
not be summarily dismissed under Keel, 302 Kan. at 560. Tolen did not respond. As a
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result, this court summarily affirmed the district court under Supreme Court Rule 7.041
(2019 Kan. S. Ct. R. 47).

Tolen then made his fifth attempt to lower his criminal history score. In this
motion, Tolen once again challenged the classification of his New Jersey conviction of
aggravated criminal sexual contact as a person felony. Tolen claimed the conviction
should be classified as a misdemeanor, and he argued the district court erred by failing to
follow the statutory procedure for classifying a prior crime and by engaging in
unconstitutional fact-finding under Descamps v. United States, 570 U.S. 254, 133 S. Ct.
2276, 186 L. Ed. 2d 438 (2013).

The district court denied Tolen's motion, ruling that the relitigation of the issue is
barred by the doctrine of res judicata because a panel of this court had decided the precise
issue raised here. The district court noted that our Supreme Court has applied res judicata
to motions to correct an illegal sentence. See State v. Conley, 287 Kan. 696, Syl. ¶ 1, 197
P.3d 837 (2008). The district court also found that Tolen's motion to correct an illegal
sentence is barred by the law-of-the-case doctrine.

A recent Supreme Court case offers some guidance.

After both parties filed their briefs in this case, our Supreme Court decided State v.
Murdock, 309 Kan. 585, 439 P.3d 307 (2019) (Murdock II). The analysis in Murdock II is
helpful. After Murdock was resentenced under our Supreme Court's holding in Murdock
I, our Supreme Court overruled Murdock I in Keel. The State moved to correct Murdock's
sentence under Keel. The district court granted the motion and sentenced Murdock for a
third time. On appeal, Murdock argued that his second sentence was a legal sentence
under Murdock I, and it did not become illegal after the change in law as a result of the
holding in Keel. Our Supreme Court agreed and held that "the legality of a sentence
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under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was
pronounced." Murdock II, 309 Kan. at 591.

Similar to this case, arguments about the doctrines of res judicata and law of the
case were issues before the court. But the Murdock II court recognized that the threshold
question of whether the legality of a sentence is fixed when pronounced "informs the
applicability of preclusionary doctrines to K.S.A. 22-3504 motions." 309 Kan. at 590-91.
As in Murdock II, the merits of the legality of Tolen's sentence should be analyzed first.

At the time of Tolen's current offense, K.S.A. 1997 Supp. 21-4711(e) governed the
classification of out-of-state convictions for criminal history purposes. K.S.A. 1997 Supp.
21-4711(e) provided:

"Out-of-state convictions and juvenile adjudications will be used in classifying
the offender's criminal history. An out-of-state crime will be classified as either a felony
or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in
another state, it will be counted as a felony in Kansas."

K.S.A. 1997 Supp. 21-4711(e) is silent on how to classify an out-of-state
conviction if the convicting jurisdiction does not differentiate between felonies and
misdemeanors. Here, Tolen was convicted of criminal sexual contact in the fourth degree.
See N.J. Stat. Ann. § 2C:14-3b.

N.J. Stat. Ann. § 2C:14:3b states: "An actor is guilty of criminal sexual contact if
he commits an act of sexual contact with the victim under any of the circumstances set
forth in section 2C:14-2c (1) through (4)." N.J. Stat. Ann. § 2C:14-2c (1) through (4)
states:

"An actor is guilty of sexual assault if he commits an act of sexual penetration
with another person in any of the following circumstances:
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"(1) The actor uses physical force or coercion; but the victim does not sustain
severe person injury;
"(2) The victim is on probation or parole, or is detained in a hospital, prison or
other institution and the actor has supervisory or disciplinary power over the victim by
virtue of the actor's legal, professional or occupational status;
"(3) The victim is at least 16 but less than 18 years old and
(a) The actor is related to the victim by blood or affinity to the third degree; or
(b) The actor has supervisory or disciplinary power over the victim; or
(c) The actor is a foster parent, a guardian, or stands in loco parentis within the
household.
"(4) The victim is at least 13 but less than 16 years old and the actor is at least
four years older than the victim."

The State notes that New Jersey does not distinguish its crimes as felonies and
misdemeanors, but designates crimes in degrees ranging from first to fourth degree. See
N.J. Stat. Ann. § 2C:43-1.

Here, the district court correctly identified that the New Jersey statute did not
differentiate between a felony and a misdemeanor. For guidance, the district court looked
to this court's holding in State v. Hernandez, 24 Kan. App. 2d 285, Syl. ¶ 2, 944 P.2d 188
(1997). In Hernandez, a panel of this court concluded that the Legislature intended for the
sentencing court to compare the prior out-of-state conviction to the most comparable
Kansas offense to determine whether it should be classified as a felony or misdemeanor
when the convicting jurisdiction does not distinguish between felonies and
misdemeanors. 24 Kan. App. 2d 285, Syl. ¶ 2. Relying on this approach, the district court
held that "the elements of this crime would constitute a felony charge, a felony sex
charge."

On direct appeal, this court followed the district court's approach, finding the most
comparable Kansas offense to be aggravated sexual battery under K.S.A. 21-3518 and
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concluding that the prior New Jersey conviction was correctly classified as a felony for
criminal history purposes. Tolen, No. 84,058, slip op. at 8-9.

If we follow the same steps as the analysis in Murdock II, we must hold that
Tolen's sentence was lawful when it was pronounced. In addition, Tolen's challenge to
the classification of his New Jersey conviction as a felony became final after this court
held the conviction was properly classified in his direct appeal. See Tolen, 84,058, slip
op. at 8-9. As stated in Murdock II, "for purposes of a motion to correct an illegal
sentence, neither party can avail itself of subsequent changes in the law." 309 Kan. at
591.

We acknowledge that our Supreme Court issued its opinion in State v. Smith, 309
Kan. 929, 441 P. 3d 472 (2019), which arguably changes the law, again. In Smith, our
Supreme Court held that K.S.A. 2015 Supp. 21-6811(e)(2) precludes a district court from
scoring a municipal ordinance violation when the convicting jurisdiction's municipal
code failed to designate that violation as a felony or misdemeanor. 309 Kan. 929, Syl. ¶
4. But under Murdock II, this subsequent change in the law does not render Tolen's
sentence illegal. After all, Tolen challenged the classification of his New Jersey
conviction as a felony in his direct appeal, and our court's decision denying his direct
appeal was filed in 2002. Tolen, No. 84,058, slip op. at 8-9. In our view, Tolen's
challenge to his sentence was final well before the Smith decision was rendered.

In his final argument, we note that Tolen's constitutional argument is based on his
assertion that to compare his New Jersey offense to the most comparable Kansas offense,
the district court engaged in impermissible judicial fact-finding. See Descamps, 570 U.S.
254; Apprendi, 530 U.S. 466. As pointed out by the State, that challenge is not based on
statutory interpretation, but has a constitutional basis. A motion to correct an illegal
sentence cannot be used to attack the constitutionality of a sentencing statute. State v.
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Lee, 304 Kan. 416, 418, 372 P.3d 415 (2016). Thus, it cannot support this most recent
challenge.

Affirmed.