State v. Murdock

• Decision Date: 19 April 2019
• Docket Number: No. 117,315,117,315
• Parties: STATE of Kansas, Appellee, v. Jimmy Lee MURDOCK, Appellant.
• Court: Kansas Supreme Court

439 P.3d 307

STATE of Kansas, Appellee,

v.Jimmy Lee MURDOCK, Appellant.

No. 117,315

Supreme Court of Kansas.

Opinion filed April 19, 2019

Samuel D. Schirer, of Kansas Appellate Defender Office, argued the cause, and Patrick H. Dunn, of the same office, was on the briefs for appellant.

Steven J. Obermeier, assistant solicitor general, argued the cause, and Michael F. Kagay, district attorney, Brett Watson, deputy district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by Stegall, J.:

This is Jimmy Lee Murdock's second appeal to this court. In his first appeal, Murdock argued the district court miscalculated his criminal history score when it classified his two out-of-state offenses as person crimes, resulting in a criminal history score of A. State v. Murdock , 299 Kan. 312, 313, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015). We agreed, holding Murdock's prior out-of-state convictions must be scored as nonperson offenses. Murdock , 299 Kan. at 319, 323 P.3d 846. At resentencing, the Shawnee County District Court followed our mandate in Murdock , scored Murdock's prior out-of-state convictions as nonperson felonies, and found he had a criminal history score of C. Shortly after, Keel overruled Murdock , and the State moved to correct Murdock's sentence. The district court granted the motion and sentenced Murdock a third time, finding a criminal history score of A.

On appeal, Murdock argues his second sentence was legally imposed under Murdock , and it did not become illegal after Keel changed the law. We agree and hold the legality of a sentence under K.S.A. 2018 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. Accordingly, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

As Murdock summarized:

"Murdock pleaded guilty to two counts of aggravated robbery and one count of robbery for crimes occurring in December 2008. To calculate his sentence, the district court found Murdock had two Illinois robbery convictions from 1984 and 1990 and a 1996 Kansas robbery conviction. It classified all three prior convictions as person offenses, which gave Murdock three or more adult convictions for person felonies. This treatment placed him in criminal history category A under K.S.A. 21-4709. Murdock was sentenced to 233 months' imprisonment for the first aggravated robbery conviction and concurrent 36-month sentences for the remaining two convictions. He would have fallen within criminal history category C if the two out-of-state convictions had been designated as nonperson offenses, resulting in a lesser sentence. See K.S.A. 21-4709 ; K.S.A. 21-4704." 299 Kan. at 313, 323 P.3d 846.

At the time of Murdock's current offense, K.S.A. 21-4711(e) governed the classification of out-of-state convictions for criminal history purposes. K.S.A. 21-4711(e) stated: "The state of Kansas shall classify the [prior out-of-state] crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime." The core question in Murdock was, when should the "comparable offense" under the Kansas Sentencing Guidelines Act (KSGA) be determined—on the date the prior out-of-state crime was committed, or on the date the current Kansas crime was committed? Following State v. Williams , 291 Kan. 554, 244 P.3d 667 (2010), overruled by Keel , 302 Kan. 560, 357 P.3d 251, the Murdock court declared "the comparable Kansas offense should be determined as of the date the out-of-state offenses were committed." Murdock , 299 Kan. at 317, 323 P.3d 846. Applying this rule, we held Murdock's out-of-state convictions must be scored as nonperson offenses because they were committed before the KSGA—and its distinction between person and nonperson crimes—was enacted. 299 Kan. at 319, 323 P.3d 846. Thus, we reversed and remanded with directions to "classify the prior out-of-state convictions as nonperson offenses." 299 Kan. at 319, 323 P.3d 846. The mandate issued in October 2014.

The Shawnee County District Court resentenced Murdock in February 2015. In accordance with our mandate, the district court classified Murdock's out-of-state robberies as nonperson felonies, found he had a criminal history score of C, and sentenced him to a total of 102 months' imprisonment. The State did not object to Murdock's new criminal history score or appeal his new sentence.

Six months later we decided Keel , which overruled Murdock and Williams to hold: "The comparable post-KSGA Kansas criminal statute is the one in effect at the time the current crime of conviction was committed," and as a result, "the classification of a prior conviction ... for criminal history purposes under the KSGA must be based on the classification in effect for the comparable offense when the current crime of conviction was committed." Keel , 302 Kan. 560, Syl. ¶¶ 8-9, 357 P.3d 251. A few days after we decided Keel , the State filed a motion to correct an illegal sentence, asking the district court to sentence Murdock (for the third time) and classify his out-of-state crimes as person felonies, which would result in a criminal history score of A (yet again).

The State argued Murdock's out-of-state robberies should have been scored as person felonies based on Keel . Alternatively, the State argued that recent amendments to the KSGA, which went into effect after Murdock was resentenced, dictated the same result. See K.S.A. 2015 Supp. 21-6810(d)(2) ("Prior adult felony convictions for offenses that were committed before July 1, 1993, shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed."); K.S.A. 2015 Supp. 21-6811(e)(3) ("The state of Kansas shall classify the [out-of-state] crime as person or nonperson. In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime."); H.B. 2053 (2015); L. 2015, ch. 5, §§ 1 and 2 (effective April 2, 2015). To avoid retroactivity concerns, the State claimed Keel and H.B. 2053 did not change the law; instead, they merely recognized or clarified the KSGA's existing requirements.

Murdock replied that his new sentence was lawful at the time it was imposed, in accordance with the mandate; it was final because the State failed to appeal it; Keel and H.B. 2053 changed the law; and these changes could not apply retroactively to render his sentence illegal. He also claimed res judicata or law of the case barred the motion, and retroactive application of H.B. 2053 would violate the Ex Post Facto Clause. The State countered that preclusionary doctrines did not apply because an illegal sentence may be corrected "at any time." See K.S.A. 22-3504.

The district court held a hearing on the motion and took the matter under advisement. The court later issued a memorandum decision granting the State's motion on two grounds. First, the court treated the law of the case as the applicable preclusionary doctrine and ruled that "the law of the case does not appear to bar a claim which, if true, would render a sentence illegal." Second, the court concluded that Murdock's sentence was illegal under Keel , reasoning:

"Under the Keel interpretation of the KSGA, Murdock's two out-of-state robberies prior to 1993 should have been classified during the resentencing as person felonies (the classification determined by this court in the original sentencing of Murdock). In other words, Murdock's criminal history at the resentencing was incorrect and therefore his sentencing was illegal."

Thus, the district court seemed to adopt the State's view that Keel did not change the law, and Murdock's second sentence was illegal at the time it was imposed. The court declined to address H.B. 2053's retroactivity.

The district court sentenced Murdock for the third time in January 2017. Applying Keel , the court found Murdock had a criminal history score of A, and Murdock objected. Then the court sentenced Murdock to a total of 233 months' imprisonment, as before. Murdock promptly appealed.

While Murdock's case was pending in the Court of Appeals, the Legislature passed the following amendment to K.S.A. 22-3504 :

" ‘Illegal sentence’ means a sentence: Imposed by a court without jurisdiction; that does not conform to the applicable statutory provision, either in character or punishment; or that is ambiguous with respect to the time and manner in which it is to be served at the time it is pronounced. A sentence is not an ‘illegal sentence’ because of a change in the law that occurs after the sentence is pronounced ." (Emphasis added.) K.S.A. 2018 Supp. 22-3504(3) ; L. 2017, ch. 62, § 9 (effective May 18, 2017).

For the first time on appeal, Murdock argues the italicized portion above applies retroactively to prevent Keel and H.B. 2053 from making his second sentence illegal.

Before the Court of Appeals held oral argument, we transferred Murdock's case to our court sua sponte. A few months after we transferred the case, Murdock filed a motion for supplemental briefing based on our new decision in State v. Wetrich , 307 Kan. 552, 412 P.3d 984 (2018), which held that, "[f]or an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime ... must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." 307 Kan. at 562, 412...