BY THE COURT
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
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.
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.
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.
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).
from Finney District Court; WENDEL W. WURST, judge. Sentences
vacated and case remanded with directions.
Scott James, of James Law Firm LLC, of Greensburg, for
R. Sherwood, assistant county attorney, Susan Lynn Hillier
Richmeier, county attorney, and Derek Schmidt, attorney
general, for appellee.
Hill, P. J., MALONE and GARDNER, JJ.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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
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
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.
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.
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.
McAlister's Motions Procedurally Barred?
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 ...