State v. Wilson

1

NOT DESIGNATED FOR PUBLICATION

No. 113,683

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LARRY WILSON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed November 25,
2015. Affirmed.

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

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

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

On February 21, 2011, Wilson pled guilty to one count of robbery, a severity level
5 person felony. On April 13, 2011, the district court granted a downward durational
departure and sentenced Wilson to 99 months' imprisonment with 24 months' postrelease
supervision. Wilson did not timely appeal his sentence.

2

On November 24, 2014, Wilson 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. ___, 357 P.3d 251 (2015). In
the motion, Wilson argued that his 1989 Missouri conviction of simple assault should
have been scored as a nonperson misdemeanor for criminal history purposes. On January
14, 2015, the district court filed an order denying the motion. Wilson timely appealed.

On appeal, Wilson claims "the district court erred by classifying a 1989 Missouri
conviction for simple assault as a person misdemeanor." Whether a prior conviction is
properly classified as a person or nonperson offense involves the interpretation of the
Kansas Sentencing Guidelines Act (KSGA). Interpretation of a statute is a question of
law over which appellate courts have unlimited review. Murdock, 299 Kan. at 314.

Wilson acknowledges that our Supreme Court's holding in Murdock has been
overruled in Keel. In Keel, our Supreme Court held that when designating a pre-KSGA
conviction as a person or nonperson crime for criminal history purposes, the court must
determine the classification of the prior conviction as of the time the current crime of
conviction was committed. 357 P.3d at 262. Simple assault was scored as a person
misdemeanor in Kansas at the time Wilson's current crime of robbery was committed in
2010. See K.S.A. 21-3408. Based on Keel, the district court did not err in classifying
Wilson's 1989 Missouri conviction of simple assault as a person misdemeanor for
criminal history purposes. Thus, the district court did not err in denying Wilson's motion
to correct an illegal sentence.

Affirmed.