State v. Martin

• Decision Date: 04 March 2016
• Docket Number: No. 113,189.,113,189.
• Citation: State v. Martin, 369 P.3d 959, 52 Kan.App.2d 474 (Kan. App. 2016)
• Parties: STATE of Kansas, Appellee, v. Michael R. MARTIN, Appellant.
• Court: Kansas Court of Appeals

52 Kan.App.2d 474

369 P.3d 959

STATE of Kansas, Appellee,

v.Michael R. MARTIN, Appellant.

No. 113,189.

Court of Appeals of Kansas.

March 4, 2016.

Review Denied Feb. 7, 2017.

Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., SCHROEDER, J., and BURGESS, S.J.

MALONE, C.J.

Michael R. Martin appeals the district court's denial of his motion to correct illegal sentence.Specifically, Martin argues that the district court erred when it classified his two 1990 Kansas juvenile adjudications for burglary as person felonies for criminal history purposes, resulting in an illegal sentence.Martin claims he is entitled to relief under our Kansas Supreme Court's holding in State v. Dickey,301 Kan. 1018, 350 P.3d 1054(2015).The State responds by arguing that the district court properly denied the motion to correct illegal sentence because Martin's sentence was correctly imposed in 2012.The State argues that the doctrine of res judicata bars Martin's claim because he could have challenged his criminal history classification on direct appeal but failed to do so.The State also argues that the holding in Dickey should not be retroactively applied to Martin's case which was final before our Supreme Court's decision in Dickey.For the reasons stated herein, we reject the State's claims that Martin is procedurally barred from obtaining relief under the holding in Dickey.Thus, we vacate Martin's sentence and remand for resentencing with directions to apply the correct criminal history score.

FACTUAL AND PROCEDURAL BACKGROUND

On September 17, 2012, Martin pled guilty to one count of possession with intent to distribute marijuana and two counts of criminal possession of a firearm.The district court ordered a presentence investigation (PSI) report which indicated that Martin was in criminal history category A based in part on two 1990 Kansas juvenile adjudications for burglary of a residence which were scored as person felonies.The district court held a sentencing hearing on November 14, 2012, and Martin did not object to his criminal history score.The district court imposed a controlling sentence of 49 months' imprisonment with 24 months' postrelease supervision.The record does not reflect that Martin filed a direct appeal.

On June 16, 2014, Martin filed a motion to correct illegal sentence.In the motion, Martin argued that based on the Kansas Supreme Court's holding in State v. Murdock,299 Kan. 312, 323 P.3d 846(2014), modified by Supreme Court orderSeptember 19, 2014, overruled by State v. Keel,302 Kan. 560, 357 P.3d 251(2015), cert. denied – –– U.S. ––––, 136 S.Ct. 865, 193 L.Ed.2d 761(2016), his two 1990 Kansas juvenile adjudications for burglary should have been classified as nonperson offenses.Therefore, Martin argued his criminal history score should have been C instead of A and he should be resentenced with the correct criminal history score.

On October 23, 2014, Martin filed a second motion to correct illegal sentence.In this motion, Martin argued that based on this court's decision in State v. Dickey,50 Kan.App.2d 468, 329 P.3d 1230(2014), aff'd301 Kan. 1018, 350 P.3d 1054, his two 1990 Kansas juvenile adjudications for burglary should have been classified as nonperson offenses.Martin again alleged that this would have resulted in his criminal history score being C instead of A, making the sentence imposed by the district court for his convictions illegal.

The State filed a response to both motions and raised many arguments, including arguments that the holdings in Murdock and Dickey should not be retroactively applied to Martin's case.

On December 1, 2014, the district court summarily denied both motions.The district court ruled that Murdock only applied to out-of-state convictions, did not apply on a collateral attack, and did not apply retroactively.The district court also ruled that this court's decision in Dickey only applied to out-of-state convictions, did not apply on a collateral attack, and did not apply retroactively.Finally, the district court noted that Martin was not entitled to any relief because he stipulated to his criminal history score at sentencing.Martin appealed the denial of both motions.

ANALYSIS

On appeal, Martin has abandoned his motion to correct illegal sentence based on our Supreme Court's holding in Murdock, presumably because Murdock has been overruled by Keel,302 Kan. 560, Syl.¶ 9, 357 P.3d 251.Thus, Martin is now seeking relief only under his second motion to correct illegal sentence based on Dickey.

K.S.A. 22–3504(1) provides that "[t]he court may correct an illegal sentence at any time."Whether a sentence is illegal is a question of law over which an appellate court has unlimited review.State v. Moncla,301 Kan. 549, 551, 343 P.3d 1161(2015).

" ‘[A]n "illegal sentence" under K.S.A. 22–3504[is]: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.’[ Citations omitted.]"301 Kan. at 551, 343 P.3d 1161.

Martin contends that Dickey is dispositive with regard to his 1990 Kansas juvenile adjudications for burglary.We will briefly review our Supreme Court's decision in that case.In Dickey,the defendant pled guilty to felony theft and his PSI report listed a 1992 juvenile adjudication for burglary, scored as a person felony.At sentencing, the defendant did not object to his criminal history score as reflected in the PSI report.The district court sentenced the defendant to a prison term, and he appealed.

On appeal, the defendant challenged the classification of his 1992 burglary adjudication as a person felony for criminal history purposes, arguing it violated his Sixth Amendment rights as enunciated by the United States Supreme Court in Apprendi v. New Jersey,530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000), andDescamps v. United States,570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438(2013).In Apprendi,the Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."530 U.S. at 490, 120 S.Ct. 2348.In Descamps,the Court determined that Apprendi is implicated when a district court enhances a defendant's sentence based on a finding that goes beyond the existence of a prior conviction or the statutory elements that comprised the prior conviction.Descamps,133 S.Ct. at 2288–89.

Our Supreme Court in Dickey determined that the defendant in that case was not barred from challenging the classification of his burglary adjudication as a person felony merely because he had stipulated to his criminal history score at sentencing.301 Kan. at 1032, 350 P.3d 1054.Specifically, our Supreme Court stated:

"[A]defendant's stipulation or failure to object at sentencing will prevent the defendant from later challenging the existence of the 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.[ Citation omitted.]"301 Kan. at 1032, 350 P.3d 1054.

Applying Apprendi and Descamps, the Dickey court determined the burglary statute in effect when the defendant committed his prior burglary did not require evidence showing that the burglarized structure was a dwelling.301 Kan. at 1039, 350 P.3d 1054.The court explained that because the burglary statute did not contain a dwelling element, determination of whether the defendant's burglary involved a dwelling "would necessarily involve judicial factfinding that goes beyond merely finding the existence of a prior conviction or the statutory elements constituting that prior conviction."301 Kan. at 1021, 350 P.3d 1054.The Dickey court concluded that "classifying [the defendant's] prior burglary adjudication as a person felony violates his constitutional rights as described under Descamps and Apprendi. "Dickey,301 Kan. at 1021, 350 P.3d 1054.

Based on Dickey, Martin is not barred from challenging the classification of his 1990 Kansas juvenile adjudications for burglary as person felonies merely because he stipulated to his criminal history score at sentencing.Similar to the situation in Dickey,the statute under which Martin was adjudicated for burglary in 1990 did not include a dwelling element.At that time, burglary was defined as follows:

"Burglary is knowingly and without authority entering into or remaining within any: (1) Building, mobile home, tent or other structure, with intent to commit a felony or theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein."K.S.A. 1990 Supp. 21–3715.

Because the burglary statute in effect at the time Martin committed the burglaries for which he was adjudicated did not contain a dwelling element, the district court's person classification necessarily required judicial factfinding.Accordingly, the classification of Martin's 1990 burglary adjudications as person felonies violates his constitutional rights as described in Apprendi and Descamps and as applied by the Kansas Supreme Court in Dickey.

May a claim under Dickey be brought in a motion to correct illegal sentence when the time for direct appeal has passed and the defendant's sentence is final?

The State does not dispute the contention that if Martin was being sentenced today, his two 1990...