appellate court reviews a district court's summary denial
of a motion to correct an illegal sentence under K.S.A.
22-3504(1) de novo because the reviewing court has the same
access to the motions, records, and files. The reviewing
court, like the district court, must determine whether the
documents conclusively show the defendant is not entitled to
Whether a sentence is illegal is a question of law over which
an appellate court has unlimited review. An illegal sentence
under K.S.A. 22-3504(1) is one: (a) imposed by a court
without jurisdiction; (b) that does not conform to the
statutory provisions, either in the character or the term of
the punishment authorized; or (c) that is ambiguous with
respect to the time and manner in which it is to be served.
classification of a prior crime as a person or nonperson
felony for criminal history purposes is a question of state
statutory law. A misclassification results in an illegal
sentence that can be corrected at any time.
from Sedgwick District Court; John J. Kisner, Jr., judge.
Reversed and remanded with directions.
F.A. Maughan, of Maughan Law Group LC, of Wichita, and Sean
M.A. Hatfield, of the same firm, were on the brief for
A. Koon, assistant district attorney, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were on the
brief for appellee.
Donaldson was convicted of sale of cocaine. He was sentenced
under the Kansas Sentencing Guidelines Act (KSGA). See K.S.A.
21-4701 et seq. His criminal history at that time
included a 1990 felony adjudication for burglary, which the
district court classified as a person crime for sentencing
2014, Donaldson filed a motion to correct an illegal
sentence, claiming the district court's classification of
the 1990 felony adjudication for burglary was an error under
State v. Dickey, 301 Kan. 1018, 1039-40, 350 P.3d
1054 (2015) (Dickey I) (holding pre-KSGA convictions
and juvenile adjudications of burglary under K.S.A. 21-3715
must be classified as nonperson felonies). The district court
summarily denied him relief. We reverse based on Dickey
I, vacate the sale of cocaine sentence, and remand for
resentencing with directions to reclassify the 1990 burglary
adjudication as a nonperson felony.
and Procedural Background
convicted Donaldson of first-degree felony murder and sale of
cocaine- the sale occurred in 2002-in two separate cases that
were consolidated for trial. The presentence investigation
reports revealed nine prior convictions, including a 1990
Kansas juvenile adjudication for burglary, scored as a person
time Donaldson committed the cocaine offense, it was a
severity level 3 drug grid felony. K.S.A. 65-4161(a); see
K.S.A. 21-4705. Under the KSGA, the presumptive sentencing
range for a severity level 3 drug grid felony varied based on
the offender's criminal history score. See K.S.A.
21-4705(a), (d). The district court applied a criminal
history score of "B" and sentenced Donaldson to 44
months' imprisonment-the center of the range applicable
to an offender with that criminal history score. The court
ordered that this sentence be served consecutive to a hard 20
life sentence it imposed for the murder conviction.
the KSGA, a criminal history score of "B" applied
if "[t]he offender's criminal history includes two
adult convictions or juvenile adjudications, in any
combination, for person felonies." K.S.A. 21-4709.
Donaldson argued below that the correct criminal history
score was "C." This score applied if "[the]
offender's criminal history includes one adult conviction
or juvenile adjudication for a person felony, and one or more