State v. Sartin

• Decision Date: 16 August 2019
• Docket Number: No. 115,172,115,172
• Citation: 446 P.3d 1068
• Parties: STATE of Kansas, Appellee, v. Billy SARTIN, Appellant.
• Court: Kansas Supreme Court

446 P.3d 1068

STATE of Kansas, Appellee,

v.Billy SARTIN, Appellant.

No. 115,172

Supreme Court of Kansas.

Opinion filed August 16, 2019.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, was on the brief for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

Billy Sartin seeks review of the Court of Appeal's decision affirming the district court's summary denial of his motion to correct an allegedly illegal sentence imposed in 1995. Sartin contends that five of his prior Illinois convictions were improperly classified as person felonies in his Kansas Sentencing Guidelines Act (KSGA) criminal history calculation. The Court of Appeals considered and rejected Sartin's challenge to the classification of one of his prior convictions but refused to consider the legality of the other four convictions, deeming those challenges to have been made for the first time on appeal.

We affirm the panel's determination on the merits relative to the one conviction it considered, but reverse its erroneous holding that it could not consider the legality of the other four prior convictions. We remand to the Court of Appeals with directions to consider and rule on the merits of the legality of the other four prior Illinois convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Following his 1995 convictions for aggravated kidnapping, aggravated criminal sodomy, sexual battery, aggravated robbery, and robbery, Billy Sartin was sentenced to 604 months in prison. His sentence was calculated using a criminal history score of A, which included five prior felony convictions from Illinois: two convictions in 1987 for aggravated criminal sexual battery, two 1987 convictions for home invasion, and one 1993 conviction for aggravated criminal sexual abuse. The robbery conviction was remanded on direct appeal and the State opted against re-prosecuting it; Sartin's sentence was reduced to 570 months. State v. Sartin , No. 74,791, 927 P.2d 520, unpublished opinion filed November 15, 1996 (Kan. App.). The mandate issued February 7, 1997.

In June 2015, Sartin filed a pro se K.S.A. 22-3504 motion to correct an illegal sentence, arguing that one of his Illinois convictions, for aggravated criminal sexual abuse, should be scored as a nonperson felony pursuant to State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014) ( Murdock I ), overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015), which had held that all prior out-of-state convictions must be scored as nonperson crimes.

The State responded and noted that Murdock I had been overruled by Keel and, in addition, the Murdock I holding was being legislatively abrogated. The district court denied Sartin's motion, noting in a motions minute sheet that the motion was denied because of Keel and H.B. 2053 (2015), the legislation abrogating the Murdock I holding.

The Court of Appeals affirmed the district court's denial. On the merits, the panel found that, for KSGA criminal history scoring purposes, the Illinois crime of aggravated criminal sexual abuse was comparable to the Kansas crime of aggravated sexual battery, K.S.A. 1994 Supp. 21-3518, which was a person felony. State v. Sartin , No. 115172, 2017 WL 462696, at *4 (Kan. App. 2017) (unpublished opinion). But the panel declined to consider the merits of Sartin's challenge to his other four Illinois convictions because he had not specifically mentioned them in his pro se K.S.A. 22-3504 motion, albeit his brief to the Court of Appeals contested all five prior convictions. Sartin , 2017 WL 462696, at *2.

We granted Sartin's petition for review of the Court of Appeals' decision.

CLASSIFICATION OF ILLINOIS CRIME OF AGGRAVATED CRIMINAL SEXUAL ABUSE

We first consider whether the Court of Appeals was correct in holding that the sentencing court correctly classified Sartin's conviction in Illinois for aggravated criminal sexual abuse as a person felony when calculating his criminal history score under the KSGA. Sartin's current argument in support of his illegality claim is based upon the constitutional prohibition on judicial fact-finding that has emanated from Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States , 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). But because Sartin was sentenced years before those cases became applicable, his challenge is unavailing.

Standard of Review

Whether a sentence is illegal is a question of law subject to unlimited review. State v. Donahue , 309 Kan. 265, 267, 434 P.3d 230 (2019). Interpretation of statutes is also a matter of law subject to unlimited review. State v. Jamerson , 309 Kan. 211, 214, 433 P.3d 698 (2019). Classification of prior crimes for criminal history purposes involves interpretation of the KSGA, which is therefore subject to unlimited review. State v. Wetrich , 307 Kan. 552, 555, 412 P.3d 984 (2018) (citing Keel , 302 Kan. at 571-72, 357 P.3d 251 ).

Analysis

Pursuant to K.S.A. 22-3504(1) "[t]he court may correct an illegal sentence at any time." A sentence is illegal under K.S.A. 22-3504 if it: (1) was imposed by a court lacking jurisdiction; (2) does not conform to statutory provisions in character or term of punishment authorized; or (3) is ambiguous with regard to the time and manner it is to be served. State v. Noyce , 301 Kan. 408, 409-10, 343 P.3d 105 (2015). Sartin relies on the second circumstance; he argues that his sentences did not conform to the statutory provisions governing the calculation of a criminal history score which in turn resulted in an unauthorized term of punishment.

Sartin's 1995 sentence was imposed under the KSGA, which introduced the person/nonperson categorization of crimes and mechanisms used to determine how prior crimes should be accounted during sentencing proceedings. K.S.A. 21-4701 et seq. ; see K.S.A. 2018 Supp. 21-6811 (formerly K.S.A. 21-4711, determination of criminal history classification). Prior convictions for person felonies increase the criminal history score more than nonperson felony convictions and, thus, result in longer prison terms. Of particular importance here is that his prior out-of-state convictions were compared to Kansas crimes when calculating criminal history. To wit:

"(e) Out-of-state convictions and juvenile adjudications will be used in classifying the offender's criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the 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." K.S.A. 1994 Supp. 21-4711.

The meaning of "comparable offense" was, for many years, defined as the "closest approximation." State v. Williams , 299 Kan. 870, 873-74, 326 P.3d 1070 (2014) (citing State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 [2003] ). Under that test, the out-of-state crimes need not have elements that are identical to a Kansas crime. It was sufficient if the Kansas person-felony crime closely approximated the elements of the out-of- state crime. 299 Kan. at 873, 326 P.3d 1070.

Subsequently, however, we refined the definition of a comparable offense for purposes of classifying out-of-state felonies as person offenses under the KSGA. Specifically, in Wetrich we held, as a matter of statutory construction:

"For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. In other words, 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 P.3d 984.

Wetrich was decided after Sartin filed his petition for review. Nevertheless, Sartin asked us to apply the same identical-to-or-narrower-than paradigm as a matter of constitutional law. The argument is founded on Apprendi 's prohibition against judicial fact-finding. If the elements of the out-of-state crime are broader than those of the Kansas offense, the out-of-state conviction could have been established by acts that would not be a violation of the Kansas crime, i.e., the fact of the out-of-state conviction, standing alone, would not necessarily establish the elements of the Kansas crime. Therefore, the sentencing court would have to engage in judicial fact-finding to determine whether the out-of-state acts would have established the "comparable" Kansas offense. Here, Sartin argues that the elements of the Illinois crimes are broader than the corresponding Kansas crimes, and that under Apprendi and Descamps a court is prohibited from engaging in any fact-finding beyond the fact of the existence of the prior convictions in order to discover the underlying factual circumstances of the prior convictions.

After Wetrich , however, we clarified that the determination of the legality of a sentence for K.S.A. 22-3504(1) purposes is to be based on the law in effect when the sentence was pronounced, e.g., the sentence conformed with the statutory provisions then in effect. State v. Murdock , 309 Kan. 585, 591-92, 439 P.3d 307 (2019) ( Murdock II ). If the sentence was legal when originally imposed, a subsequent change in the law cannot transform a legal sentence into an illegal sentence. Specifically, Murdock II said that

"the legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time—the moment the sentence was pronounced. At that

...