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State v. McAlister

Court of Appeals of Kansas

April 28, 2017

State of Kansas, Appellee,
v.
Jacob J. McAlister, Jr., Appellant.

         SYLLABUS BY THE COURT

         1. Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law over which an appellate court has unlimited review. Also, whether a prior conviction is properly classified as a person or nonperson crime for criminal history purposes raises a question of law subject to unlimited review.

         2. The Kansas Supreme Court has defined an "illegal sentence" as (1) a sentence imposed by the court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the 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.

         3. A sentence based on an incorrect criminal history score is an illegal sentence that can be corrected at any time regardless of the procedural posture of the case.

          4. The Kansas Supreme Court has explained that the proper classification of a prior crime as a person or nonperson felony for criminal history purposes is a question of state statutory law, not constitutional law.

         5. A defendant whose sentence is illegal based on the holding in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), is entitled to receive a corrected sentence at any time, even if the sentence became final prior to the decision Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

         Appeal from Finney District Court; WENDEL W. WURST, judge. Sentences vacated and case remanded with directions.

          J. Scott James, of James Law Firm LLC, of Greensburg, for appellant.

          Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Hill, P. J., MALONE and GARDNER, JJ.

          MALONE, J.

         Jacob J. McAlister, Jr., appeals the district court's decision denying his motions to correct illegal sentences filed in three criminal cases from Finney County. The district court dismissed the motions as procedurally barred, and McAlister claims on appeal that the district court erred in doing so. Conversely, the State argues that the district court did not err when it determined that McAlister's motions were procedurally barred. Specifically, the State argues that McAlister is not entitled to retroactive relief on his motions to correct his illegal sentences under State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I), because McAlister's sentences became final prior to the decision Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We resolve this issue against the State and remand with directions for the district court to revise McAlister's criminal history scores and correct his sentences pursuant to the holding in Dickey I as more fully set forth in this opinion.

         FACTUAL AND PROCEDURAL BACKGROUND

         In early 1996, the State charged McAlister with multiple crimes in three separate cases in Finney County. In 96CR4O, the State charged McAlister with multiple counts of possession of opiates, nonresidential burglary, conspiracy to commit burglary, misdemeanor theft, and criminal damage to property. In 96CR4l, the State charged McAlister with two counts of aggravated robbery. Finally, in 96CR49, the State charged McAlister with one count of aggravated robbery.

         The three cases were never consolidated in district court and were presented to different jury panels in August 1996. Ultimately, McAlister was convicted in 96CR4O of one count each of possession of narcotics, nonresidential burglary, misdemeanor theft, and criminal damage to property as well as three counts of conspiracy to commit burglary. McAlister was convicted of both counts of aggravated robbery in 96CR41 and one count of aggravated robbery in 96CR49.

         The presentence investigation (PSI) report prepared in each case showed that McAlister had been convicted of two counts of burglary and one count of conspiracy to commit burglary in 92CR130, and each of these convictions was scored as a person felony. This resulted in a criminal history score of A in all three cases.

         McAlister was sentenced in all three cases on the same day, November 8, 1996. At the sentencing hearing, McAlister objected to his criminal history score, challenging the inclusion of the two 1992 burglary convictions and one 1992 conspiracy to commit burglary conviction as person felonies. The district court overruled those objections and sentenced McAlister to a controlling prison term of 52 months in 96CR4O, 257 months in 96CR4l, and 206 months in 96CR49. The district court ordered that the sentences from the three cases run consecutive to each other.

         McAlister appealed each of his convictions and sentences to this court, and the cases were consolidated on appeal. In addition to appealing various evidentiary rulings, McAlister challenged the calculation of his sentences in the three cases, but this court affirmed both his convictions and sentences. State v. McAlister, No. 78, 378, 1998 WL 964855 (Kan. App. 1998), rev. denied 266 Kan. 1113 (1999). The mandate issued on February 3, 1999.

         On May 20, 2015, McAlister filed pro se motions to correct illegal sentences in each of his cases. In addition to making other arguments, McAlister relied on the decision in State v. Dickey, 50 Kan.App.2d 468, 329 P.3d 1230 (2014) (subsequently affirmed in Dickey I) to challenge the district court's inclusion of his 1992 burglary-related convictions as person felonies in his criminal history. The State filed a written response to each motion asserting multiple arguments why the holding in Dickey I did not apply to McAlister's cases. Specifically, the State argued that McAlister's motions were barred by res judicata because he had challenged his sentences in his direct appeal, and the State also argued that the holding in Dickey I did not apply retroactively to McAlister's sentences, which were final prior to the ruling in Dickey I.

         The district court held a hearing on McAlister's motions on October 30, 2015. After hearing arguments of counsel, the district court found that McAlister's motions were procedurally barred by res judicata and also because the holding in Dickey I did not apply retroactively to McAlister's sentences. McAlister timely filed a notice of appeal in each case, and the cases again have been consolidated on appeal.

         Were McAlister's Motions Procedurally Barred?

         On appeal, McAlister argues that his sentences were based on an incorrect criminal history score and thus constituted an "illegal sentence" under K.S.A. 22-3504. McAlister asserts that the district court erred in finding his motions were procedurally barred under the doctrine of res judicata. He also claims that ...


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