BY THE COURT
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.
Under the KSGA, the legislature intended for all prior
convictions and juvenile adjudications, including those
convictions and adjudications occurring before KSGA
implementation, to be considered and scored for purposes of
determining an offender's criminal history score.
pre-KSGA conviction and/or adjudication 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. The comparable
post-KSGA Kansas criminal statute is the one in effect at the
time the current crime of conviction was committed.
legislature has the power to affix punishments by designating
prior offenses as person or nonperson offenses for the
purposes of calculating the sentence for a current crime of
conviction under the KSGA. The exercise of this legislative
authority does not implicate the constitutional protections
described in Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
from Sedgwick District Court; John J. Kisner, Jr., judge.
F.A. Maughan, of Maughan Law Group LC, of Wichita, and Sean
M.A. Hatfield, of the same firm, were on the brief for
K. Isherwood, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
T. Sims was convicted of a 1995 aggravated battery and
sentenced under the Kansas Sentencing Guidelines Act (KSGA),
K.S.A. 1994 Supp. 21-4701 et seq. In calculating his
criminal history, the sentencing court included a 1992
juvenile adjudication for aggravated assault, which it
classified as a person felony. In 2015, Sims moved to correct
what he claimed was an illegal sentence. The district court
summarily denied relief. We reject each assertion of error
hold: (1) Sims is not entitled to have the 1992 juvenile
adjudication for aggravated assault classified as a nonperson
offense under State v. Murdock, 299 Kan. 312, 319,
323 P.3d 846 (2014) (regarding person/nonperson
classification of prior out-of-state offenses for purposes of
calculating criminal history score), overruled by State
v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert.
denied 136 S.Ct. 865 (2016); (2) the KSGA's
person/nonperson classification of pre-KSGA offenses does not
violate the Sixth Amendment's prohibition on nonjury
factual findings that increase a defendant's sentence;
and (3) the district court did not deprive Sims of a
statutory right to a hearing when it summarily denied relief.
and Procedural Background
convicted Sims of felony murder, two counts of aggravated
battery, one count of criminal discharge of a firearm at an
occupied dwelling, and one count of criminal possession of a
firearm. These crimes occurred in March 1995. The presentence
investigation revealed two prior offenses: a 1992 juvenile
adjudication for theft scored as a ...