State v. Vasquez

• Decision Date: 29 April 2016
• Docket Number: No. 113,473.,113,473.
• Citation: 52 Kan.App.2d 708,371 P.3d 946
• Parties: STATE of Kansas, Appellee, v. Pete D. VASQUEZ, Appellant.
• Court: Kansas Court of Appeals

52 Kan.App.2d 708

371 P.3d 946

STATE of Kansas, Appellee,

v.Pete D. VASQUEZ, Appellant.

No. 113,473.

Court of Appeals of Kansas.

April 29, 2016.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

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

Before STANDRIDGE, P.J, PIERRON, J., and JOHNSON, S.J.

STANDRIDGE, J.

Pete D. Vasquez appeals the district court's decision to summarily deny his motion to correct an illegal sentence. Specifically, Vasquez argues the district court erred by over-classifying his prior pre-Kansas Sentencing Guidelines Act (KSGA) burglary and robbery convictions as person felonies for criminal history purposes, which resulted in an illegal sentence. Vasquez claims he is entitled to relief 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), as applied by our state in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey II ).

The State argues this court should not reach the merits of whether Vasquez' sentence is illegal because the issue is procedurally barred by the doctrines of waiver and res judicata, because the holding in Dickey II should not be retroactively applied in this case and because the Supreme Court's recent decision in State v. Warrior, 303 Kan. 1008, 368 P.3d 1111 (2016), held that a motion to correct an illegal sentence is not an appropriate vehicle to challenge the constitutionality of a sentence as Vasquez has done here. Finding no legal bar to our review, we hold that Vasquez' sentence is illegal under Dickey II, and therefore vacate the sentence imposed and remand the matter to the district court for resentencing.

Facts

On September 28, 2012, Vasquez pled guilty to one count of aggravated escape from custody, a severity level 5 nonperson felony. His escape occurred on June 23, 2012.

Vasquez' presentence investigation (PSI) report reflected five crimes classified as person felonies in his criminal history. Four of the person felony convictions occurred in 1978 and each were identified as “burglary of a residence” in violation of K.S.A. 21–3715(a). The PSI report also reflected that Vasquez had been convicted of attempted robbery, a person felony, in 1982. At sentencing, Vasquez agreed his PSI report was accurate and conceded his criminal history score should be “A.” Later in the sentencing hearing, the district court granted a motion for departure filed by Vasquez and sentenced him to 65 months in prison. Vasquez did not file a direct appeal.

In 2014, Vasquez filed a motion to correct an illegal sentence under K.S.A. 22–3504(1). In it, he argued the ruling in State v. Murdock, 299 Kan. 312, 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), cert. denied ––– U.S. ––––, 136 S.Ct. 865, 193 L.Ed.2d 761 (2016), required his pre–1993 person felonies to have been scored as nonperson felonies when calculating his criminal history score.

After he filed his motion, a panel of this court issued State v. Dickey, 50 Kan.App.2d 468, 484, 329 P.3d 1230 (2014), aff'd 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I ). In Dickey I, we held that judicial factfinding at sentencing that goes beyond the existence of a prior conviction or the statutory elements constituting the prior conviction violates a defendant's right under the Sixth Amendment to the United States Constitution based on the holdings in Descamps and Apprendi. 50 Kan.App.2d at 489, 329 P.3d 1230. While Dickey's petition for review was pending on appeal before our Supreme Court, Vasquez filed a second motion to correct an illegal sentence. In this second motion, Vasquez argued the district court erred by over-classifying his prior pre-KSGA burglary and robbery convictions as person felonies for criminal history purposes, which resulted in an illegal sentence under Descamps, Apprendi, and Dickey I.

The district court summarily denied both motions without a hearing. In its journal entry disposing of the motions, the court found neither Murdock nor Dickey I provided a basis for relief. The court also found Vasquez had waived the issues presented in his motions. Vasquez timely appealed. The Supreme Court subsequently affirmed this court's holding in Dickey I.

Analysis

Vasquez claims the district court erroneously denied his motion to correct an illegal sentence. 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). Our Supreme Court has defined “illegal sentence” under K.S.A. 22–3504 as:

“(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.” Moncla, 301 Kan. at 551, 343 P.3d 1161.

The State does not challenge Vasquez' motion on the merits. Rather, it contends that Vasquez is procedurally barred from obtaining relief on his claim because (a) Vasquez waived his claim by failing to object to his criminal history score at sentencing; (b) Vasquez' failure to raise his claim at sentencing or on direct appeal precludes the court from considering it now based on the doctrine of res judicata; (c) Vasquez is not entitled to have the Supreme Court's holding in Dickey

II

retroactively applied to his case; and (d) Vasquez' motion to correct an illegal sentence is not the proper procedural vehicle to challenge the constitutionality of his sentence. Given the State's arguments are all procedural in nature, we address each of them before reaching the merits of Vasquez' claim of illegal sentence.

1. Procedural issues a. Waiver

The State contends Vasquez waived the right to challenge his criminal history score because he failed to object to it at sentencing or on direct appeal. But the Supreme Court specifically addressed this contention in Dickey II and resolved it against the State's position. In that case, the court held Dickey was not barred from challenging the classification of his prior burglary adjudication even after he stipulated to his criminal history score at sentencing:

“[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. [Citation omitted.]” Dickey II, 301 Kan. at 1032, 350 P.3d 1054.

The same analysis applies here. Thus, Vasquez has not waived his right to obtain relief from an illegal sentence by failing to object to his criminal history score at sentencing.

b. Res judicata

Similarly, the doctrine of res judicata does not bar a motion to correct an illegal sentence, which by statute may be brought at any time. The applicability of res judicata is a question of law over which the appellate court has unlimited review. State v. Robertson, 298 Kan. 342, 344, 312 P.3d 361 (2013).

The State correctly recites the general rule of res judicata, which requires a defendant to raise all available issues on direct appeal. See State v. Neer, 247 Kan. 137, 140–41, 795 P.2d 362 (1990). However, our Supreme Court has recognized the statutory exception for motions to correct illegal sentences, which the legislature expressly provides may be brought “at any time.” K.S.A. 22–3504(1) ; State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011). In Neal, the defendant filed a motion to correct an illegal sentence 7 years after his direct appeal, claiming for the first time that his prior misdemeanor convictions were improperly aggregated into a single person felony in determining his criminal history score. 292 Kan. at 627, 258 P.3d 365. The court held that because a motion to correct an illegal sentence may be filed at any time, the motion was not barred by res judicata. 292 Kan. at 631, 258 P.3d 365 ; see also State v. Martin, No. 113,189, 52 Kan.App.2d 474, ––––, Syl. ¶ 5, 369 P.3d 959, 960 2016 WL 852130, at *1, Syl. ¶ 5 (2016) ( “Applying the doctrine of res judicata to bar challenges of an illegal sentence merely because they could have been brought in a direct appeal would undermine the clear statutory directive in K.S.A. 22–3504 [1] that courts may correct an illegal sentence at any time.”).

Based on the holding by our Supreme Court in Neal, the doctrine of res judicata does not preclude Vasquez from seeking relief from an illegal sentence.

c. Retroactive application of the holding in Dickey II

The State argues Vasquez' motion is procedurally barred because the Supreme Court's holding in Dickey II may not be retroactively applied to the current case, which was final when the Supreme Court's opinion in Dickey II was filed.

As a general rule, “when an appellate court decision changes the law, that change acts prospectively and applies only to all cases, state or federal, that are pending on direct review or not yet final on the date of the appellate court decision.” State v. Mitchell, 297 Kan. 118, Syl. ¶ 3, 298 P.3d 349 (2013). However, the court's holding in Dickey II is not a “change in the law” under that analysis, but rather an application of the constitutional rule announced in Apprendi and clarified by Descamps. See Dickey II, 301 Kan. at 1021, 350 P.3d 1054 (“[C]lassifying Dickey's prior burglary adjudication as a person felony violates his constitutional rights as described under Descamps and Apprendi .”); Mar...