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State v. Bailey

Supreme Court of Kansas

May 19, 2017

State of Kansas, Appellee,
v.
Brian C. Bailey, Appellant.

         SYLLABUS BY THE COURT

         1. A clerical error in sentencing may be corrected at any time.

         2. A 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.

         Appeal 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.

          Steven 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 appellee.

          OPINION

          Stegall, J.

         Brian 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 clerical mistake.

         Factual and Procedural Background

         In 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.

         This is 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.

         In 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).

         The 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.

         In 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 ...


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