State v. Dickey

• Decision Date: 07 October 2016
• Docket Number: 110,326 ,Nos. 110,325 , 110,327,s. 110,325
• Citation: 380 P.3d 230
• Parties: State of Kansas, Appellee, v. Jeff Dickey, Appellant.
• Court: Kansas Supreme Court

380 P.3d 230

State of Kansas, Appellee,

v.Jeff Dickey, Appellant.

Nos. 110,325

110,326

110,327

Supreme Court of Kansas.

Opinion filed October 7, 2016

Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Anna M. Jumpponen, assistant county attorney, and Natalie A. Chalmers, assistant solicitor general, argued the cause, and Charles Ault–Duell, assistant county attorney, Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by Stegall

, J.:

Dickey appeals from the revocation of his probation in three cases which have been consolidated on appeal. He argues the district court erred in two ways: (1) by failing to ascertain and pronounce the specific term length of the underlying sentences after revoking his probation; and (2) by imposing illegal underlying sentences premised on an erroneous criminal history score that resulted from a misclassification of a prior conviction as a person felony. As set forth below, we agree with Dickey's second claim, vacate the underlying sentences, and remand to district court for resentencing. Dickey's first claim of error is therefore moot.

FACTUAL AND PROCEDURAL BACKGROUND

A district court hearing was held on May 16, 2013, for the dual purpose of pronouncing sentence on Dickey following his conviction for felony theft and considering the State's motions to revoke his probation in four earlier cases based on his new conviction. That hearing has resulted in multiple separate appellate court opinions in two separate cases—today's decision being the fourth and likely final of these. At the hearing, two things happened: (1) Dickey was sentenced for his felony conviction; and (2) Dickey's probation in the prior cases was revoked (Dickey has never contested the fact that he violated the terms of his probation). All five of the sentences pronounced during this hearing—one for the principal crime and four that merely imposed the sentences already pronounced in prior cases—were premised on Dickey's criminal history score as it was reflected on presentence investigation (PSI) reports.

At the May hearing, Dickey's PSI showed that Dickey had 55 prior offenses: 3 person felonies, 12 nonperson felonies, and 40 nonperson misdemeanors. As such, Dickey received a criminal history score of A based on the finding that Dickey had three prior adult convictions or juvenile adjudications for person felonies. See K.S.A. 2012 Supp. 21–6809

(Offender falls into criminal history category A when “offender's criminal history includes three or more adult convictions or juvenile adjudications, in any combination, for person felonies.”). One of the three offenses scored as a person felony was a juvenile adjudication for burglary occurring before the enactment of the Kansas Sentencing Guidelines Act and the classification of crimes in Kansas as either person or nonperson. If that earlier juvenile conviction—in 1992—were to be classified as a nonperson felony, Dickey's criminal history score would have been a B.

This is the crucial fact shared by all the appeals arising out of the May hearing. How that 1992 conviction is classified—person or nonperson—significantly impacts the guidelines sentence for all four of Dickey's sentences at issue. With respect to Dickey's sentence for the principal crime, Dickey's appeal was resolved by this court last year in State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015)

(Dickey I ). Today we resolve Dickey's appeal of the underlying sentences imposed after his probation was revoked in his earlier cases.

While the two cases share identical substantive legal questions concerning the proper classification of Dickey's prior 1992 crime, there is a procedural difference. Simply stated, Dickey I

was a direct sentencing appeal while today's decision—Dickey II —arrived at the steps of the appellate courts as an appeal of three probation revocations long after the initial sentences in those underlying cases had passed. The parties spend significant time contesting whether the different procedural posture of Dickey II dictates a different outcome. But as we recite below, we granted Dickey the relief he sought in Dickey I because the misclassification of his prior conviction resulted in an illegal sentence. An illegal sentence can be corrected at any time. K.S.A 22–3504(1). As such, the procedural distinctions the State relies on between Dickey I and Dickey II fade to irrelevance and the substantive holding of Dickey I must control.

ANALYSIS

We begin by reviewing our decision last year in Dickey I

. There, Dickey argued that the district court violated his constitutional rights under Descamps v. United States , 570 U.S. ––––, 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), “by classifying Dickey's prior 1992 in-state juvenile adjudication for burglary as a person felony—resulting in Dickey having a criminal history score of A and placing him in the A–9 grid box of the Kansas Sentencing Guidelines.” Dickey I , 301 Kan. at 1020, 350 P.3d 1054.

The State argued that Dickey was barred from bringing a challenge to the classification of his prior burglary adjudication for the first time on appeal because he “failed to raise an objection to the classification at sentencing and, in fact, stipulated to the accuracy of his criminal history score.” 301 Kan. at 1027, 350 P.3d 1054

. It has never been contested that Dickey in fact did stipulate to the accuracy of the PSI report; however, we held:

“[A] defendant's stipulation or failure to object at sentencing will prevent the defendant from later challenging the existence of convictions listed in his or her criminal history. But a stipulation or lack of an objection regarding how those convictions should be classified or counted as a matter of law for the purpose of determining the defendant's criminal history score will not prevent a subsequent challenge under K.S.A. 22–3504(1)

of his or her prior convictions.” 301 Kan. at 1032, 350 P.3d 1054 (citing State v. Weber , 297 Kan. 805, 814–15, 304 P.3d 1262 [2013] ).

Thus, where there has been a misclassification of a prior conviction, the resulting sentence is illegal and can be corrected at any time pursuant to K.S.A. 22–3504

. Dickey I , 301 Kan. 1018, Syl. ¶ 3, 350 P.3d 1054 (“Under K.S.A. 22–3504 [1], a defendant may challenge for the first time on appeal the classification of his or her prior convictions and/or the resulting criminal history score used to sentence him or her under the Kansas Sentencing Guidelines Act. Such a challenge necessarily raises a claim that the sentence imposed for the current conviction was illegal because the sentence did not comply with the applicable statutory provision regarding the term of punishment authorized for the current conviction.”).

The proper classification of a prior conviction is a question of law over which we exercise unlimited review. 301 Kan. 1018, Syl. ¶ 5, 350 P.3d 1054

. Interestingly, in this case, what kind of a question of law this presents may alter the outcome. If the question of law presented is a question of constitutional law —and the State claims that it is—then Dickey's assertion on appeal that his sentence is illegal runs squarely into the hurdle imposed by our prior caselaw that “ ‘the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision [and] a defendant may not file a motion to correct an illegal sentence based on constitutional challenges to his or her sentence.’ ” State v. Moncla , 301 Kan. 549, 553–54, 343 P.3d 1161 (2015) (quoting State v. Mitchell , 284 Kan. 374, 377, 162 P.3d 18 [2007] ). The State points to this rule and argues:

“[I]t is questionable whether this issue is properly before this court. However, the State acknowledges the issue was properly raised for the first time on appeal in State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015)

. But, Dickey was wrong to conclude that a constitutional challenge to a defendant's sentence fits within the realm of K.S.A. 22–3504.”

The State's confusion on this question is understandable given that our decision in Dickey I

was not as clear as it could have been on this narrow point. We clarify now that our holding in Dickey I was not a repudiation of the rule stated in Moncla that a motion to correct an illegal sentence is not a proper vehicle to assert a constitutional challenge to a defendant's sentence. We expressly reaffirm the Moncla rule.

The parties' framing of the question here as a question of constitutional law is likewise understandable, but incorrect. It is true that the methodology utilized by the State and the district court to find the additional fact that Dickey's prior burglary conviction issue involved a dwelling turned out to be constitutionally infirm pursuant to Apprendi

and its progeny. The bulk of our opinion in Dickey I was spent resolving this...