State v. Dubry
Citation | 444 P.3d 328,309 Kan. 1229 |
Decision Date | 28 June 2019 |
Docket Number | No. 114,050,114,050 |
Parties | STATE of Kansas, Appellee, v. Lloyde DUBRY, Appellant. |
Court | United States State Supreme Court of Kansas |
Clayton J. Perkins, of Capital Appellate Defender Office, and Joanna Labastida, of Kansas Appellate Defender Office, were on the briefs for appellant.
Jodi Litfin, assistant solicitor general, and Elizabeth A. Billinger, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.
Lloyde Dubry moved to correct his sentence several years after it was imposed, arguing the sentencing court improperly scored a prior Wyoming conviction as a person crime. The sole issue is whether the Court of Appeals erred in affirming the district court’s denial of the motion on the basis that the Wyoming offense's classification was correct. We affirm based on State v. Murdock , 309 Kan. 585, Syl., 439 P.3d 307 (2019) ( Murdock II ) ( ).
Dubry pleaded guilty to kidnapping, a severity level 3 felony. The State alleged the crime occurred on December 6, 2010. The district court accepted the plea and adjudged him guilty. He was sentenced on March 30, 2011.
Dubry's presentence investigation report reflected three prior convictions and recommended that each be scored as a person felony. These were: a pre-1993 Kansas aggravated criminal sodomy conviction; a pre-1993 Kansas aggravated kidnapping conviction; and a 1981 Wyoming conviction for immodest, immoral, or indecent liberties with a child. Based on this, the PSI report recommended an A criminal history score. Defense counsel did not object. Applying the A criminal history score, the district court sentenced Dubry to 233 months' imprisonment.
In 2015, Dubry filed a motion to correct his sentence arguing the prior convictions should have been scored as nonperson offenses since they predated the KSGA, relying on State v. Murdock , 299 Kan. 312, 319, 323 P.3d 846 (2014) ( Murdock I ) (, )overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015). The district court denied the motion and Dubry timely appealed.
On appeal, Dubry shifted his illegal sentence argument and claimed only that the Wyoming conviction should not have been scored as a person crime because the Wyoming statute is broader than the counterpart Kansas offense. He contended the Wyoming and Kansas offenses could not be deemed comparable without judicial factfinding that violated his Sixth and Fourteenth Amendment rights under the United States Constitution. See Descamps v. United States , 570 U.S. 254, 260-61, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013) ( ); Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) ( ).
We granted Dubry's timely petition for review and ordered the parties to explain whether we should summarily vacate the panel's decision and remand to the district court in light of State v. Wetrich , 307 Kan. 552, 561, 412 P.3d 984 (2018) ( ). Dubry argues Wetrich should apply.
Jurisdiction is proper. See K.S.A. 20-3018(b) ( ); K.S.A. 60-2101(b) ( ).
A criminal sentence's legality is judged by the law at the time it was pronounced. Murdock II , 309 Kan. at 591, 439 P.3d 307. When Dubry was sentenced, prior out-of-state crimes did not need to be identical to their Kansas counterparts to be classified as person crimes. See State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 (2003).
At the time of Dubry's offense, the KSGA provided:
(Emphasis added.) K.S.A. 21-4711(e).
Under the Wyoming statute forming the basis of Dubry's 1981 conviction, Wyo. Stat. Ann. § 14-3-105 (1978):
"Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony, and upon conviction shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both."
At the time of Dubry's current crime, Kansas' indecent liberties statute provided:
Dubry's argument is that the person-crime classification based on the Wyoming statute's similarities to the Kansas stat...
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State v. Coleman
...challenges to his or her sentence. State v. Dickey , 305 Kan. 217, 221, 380 P.3d 230 (2016) ( Dickey II ). In State v. Dubry , 309 Kan. 1229, 1233, 444 P.3d 328 (2019), the court declined to reach the merits of a constitutional claim identical to Coleman's but pertaining to an out-of-state ......
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State v. Lewis
...of State v. Weber , 309 Kan. 1203, 442 P.3d 1044 (2019) ; State v. Newton , 309 Kan. 1070, 442 P.3d 489 (2019) ; and State v. Dubry , 309 Kan. 1229, 444 P.3d 328 (2019)." We now consider Lewis' argument in light of those cases. AnalysisWeber , Newton , and Dubry were decided the same day. T......