State v. Weaver

1

NOT DESIGNATED FOR PUBLICATION

No. 113,375

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

AARON A. WEAVER,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed September 4,
2015. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2014 Supp. 21-6820(g) and (h).

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

Per Curiam: Aaron A. Weaver appeals the district court's denial of his motion to
correct illegal sentence. We granted Weaver's motion for summary disposition in lieu of
briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State
filed a response and requested that the district court's judgment be affirmed.

On June 21, 2005, Weaver entered a plea to one count of robbery. Weaver's
presentence investigation (PSI) report placed Weaver into criminal history category "A."
The PSI report showed one nonperson misdemeanor conviction prior to 1993. On August
2, 2005, the district court sentenced Weaver to 122 months' imprisonment but granted a
dispositional departure to probation with community corrections for 24 months. Weaver
did not timely appeal his sentence.
2

The State subsequently alleged that Weaver violated his probation on numerous
grounds. On March 25, 2010, the district court revoked Weaver's probation and ordered
him to serve his underlying prison sentence.

On November 13, 2014, Weaver filed a motion to correct illegal sentence pursuant
to State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court
order September 19, 2014, overruled by State v. Keel, No. 106,096, 2015 WL 5081212, at
*21 (Kan. 2015). The district court issued a written order without a hearing and denied
Weaver's motion on numerous grounds. Weaver timely appealed.

On appeal, Weaver raises several arguments as to why the district court erred in
denying his motion to correct illegal sentence. Initially, we note that the Kansas Supreme
Court's decision in Murdock has been overruled by Keel. Thus, Weaver is not entitled to
any relief under Murdock. Also, as the State points out in its response to Weaver's motion
for summary disposition, Weaver has overlooked the fact that his criminal history does
not include any pre-1993 person convictions. As Weaver acknowledges in his motion, his
PSI report showed one nonperson misdemeanor conviction prior to 1993. Before being
overruled, Murdock held that pre-1993, out-of-state convictions must be classified as
nonperson offenses. 299 Kan. 312, Syl. ¶ 5. Thus, even if Murdock had not been
overruled by the Kansas Supreme Court, the holding in that case would not have
provided Weaver with any relief. For these reasons, the district court did not err in
denying Weaver's motion to correct illegal sentence based on Murdock.

Affirmed.