BY THE COURT
clerical error in sentencing may be corrected at any time.
pre-Kansas Sentencing Guidelines Act conviction must be
classified as either a person or nonperson offense by
comparing the criminal statute under which the prior offense
arose to the comparable post-KSGA criminal statute.
from Johnson District Court; James Franklin Davis, judge.
Affirmed and remanded with directions.
Catherine A. Zigtema, of Law Office of Kate Zigtema LC, of
Lenexa, argued the cause and was on the brief for appellant.
J. Obermeier, senior deputy district attorney, argued the
cause, and Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, were with him on the brief for
C. Bailey is serving a life sentence for felony murder. He
appeals the summary denial of three pro se motions, arguing
restitution has been wrongfully collected from him and his
sentence is illegal. We hold no enforceable restitution
judgment exists against Bailey and the wrongful collection of
restitution likely arises from a clerical error. We also hold
Bailey's offenses were properly classified as person
felonies and his sentence is not illegal. Therefore, we
affirm and remand for a hearing and correction of the
and Procedural Background
December 1986, Bailey and Kohler Jeffries committed a series
of armed robberies of gas stations and a liquor store in
Johnson County. During one robbery, they killed a gas station
attendant. Bailey was convicted of one count of first-degree
felony murder, four counts of aggravated robbery, and
sentenced to life imprisonment. The district court found
restitution in the amount of $37, 521.07.
the fifth time Bailey's case has come before this court.
In 1990, we affirmed Bailey's convictions on direct
appeal. State v. Bailey, 247 Kan. 330, 340, 799 P.2d
977 (1990), cert. denied 500 U.S. 920 (1991). In
1992, we vacated Bailey's sentences and remanded the case
for resentencing and consideration of the disparity between
Bailey's and Jeffries' sentences. State v.
Bailey, 251 Kan. 527, 531, 834 P.2d 1353 (1992). The
district court resentenced Bailey to life imprisonment for
felony murder and ordered three of his four aggravated
robbery convictions to be served concurrently. The court
again found restitution in the amount of $37, 521.07.
1993, we remanded the case for computation of Bailey's
Kansas Sentencing Guidelines Act (KSGA) sentence. State
v. Bailey, No. 79, 803, 1998 WL 982911 (Kan. 1998)
(unpublished opinion). In 2005, we affirmed the summary
denial of Bailey's third motion to correct an illegal
sentence. State v. Bailey, No. 88, 639, 2005 WL
991913, at *3 (Kan. 2005) (unpublished opinion).
present appeal arises from three pro se motions. In 2013 and
2014, Bailey filed two motions for release of restitution,
arguing the restitution judgment against him was dormant and
seeking reimbursement for money already paid toward
restitution. The district court summarily denied the motions,
concluding there was no enforceable restitution judgment that
could become dormant.
2014, Bailey also filed a pro se motion to correct an illegal
sentence. He argued the district court incorrectly classified
his pre-KSGA offenses as person felonies in violation of
State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014),
overruled by State v. Keel, 302 Kan. 560, 357 P.3d
251 (2015), cert. denied136 S.Ct. 865 (2016), and
miscalculated his criminal history score as a result. The