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State v. Dawson

Court of Appeals of Kansas

December 8, 2017

State of Kansas, Appellee,
v.
Alcena M. Dawson, Appellant.

         SYLLABUS BY THE COURT

         1. Whether a prior conviction was properly classified as a person or nonperson offense in determining a defendant's criminal history is a question of law over which an appellate court has unlimited review.

         2. An appellate court applies a de novo standard of review to a district court's summary denial of a motion to correct illegal sentence under K.S.A. 22-3504.

         3. Although generally a statute operates only prospectively unless there is clear language indicating the legislature intended otherwise, exceptions have been recognized for amendments that merely clarify rather than change a statute, or statutory changes that are merely procedural or remedial in nature and do not prejudicially affect the substantive rights of the parties.

         4. K.S.A. 22-3504(3), added by a 2017 amendment to K.S.A. 22-3504, clarifies the intended application of the term "illegal sentence, " which is used in K.S.A. 22-3504(1), and is procedural in nature.

         5. A sentence is not an illegal sentence based on the holding in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), if that sentence was final prior to the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

         Appeal from Sedgwick District Court; John J. Kisner Jr., judge.

          Roger L. Falk, of Law Office of Roger L. Falk, P.A., of Wichita, for appellant.

          Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Arnold-Burger, C.J., Gardner, J., and Stutzman, S.J.

          STUTZMAN, J.

         A jury in the Sedgwick District Court convicted Alcena M. Dawson of rape. His conviction and sentence were affirmed and his subsequent postconviction motions for relief have been denied. He now appeals the district court's denial of his motion to correct an illegal sentence. We find no error and affirm the district court.

         Facts and Procedural Background

         On June 4, 1997, a jury found Dawson guilty of rape and the following month the district court sentenced him to serve 732 months in prison. A criminal history category B was computed for Dawson's sentencing based on two person felony convictions: a 1986 residential burglary and the conversion of three person misdemeanor convictions, scored as a second person felony. A claim that the district court erred in aggregating the misdemeanor convictions was among Dawson's arguments on direct appeal. This court affirmed Dawson's conviction and sentence. State v. Dawson, No. 79, 652, unpublished opinion filed December 23, 1999 (Kan. App.), rev. denied 269 Kan. 935 (2000) (Dawson I). Dawson's sentence became final in March 2000, prior to the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in June 2000.

         A series of collateral attacks followed, including a motion to correct illegal sentence. See Dawson v. State, No. 94, 720, 2006 WL 3877559 (Kan. App. 2006) (unpublished opinion), rev. denied 283 Kan. 930 (2007) (Dawson II); State v. Dawson, 43 Kan.App.2d 800, 231 P.3d 582 (recounting postconviction history of the case), rev. denied 290 Kan. 1097 (2010) (Dawson III); Dawson v. State, No. 115, 129, 2017 WL 262027 (Kan. App.) (unpublished opinion), petition for rev. filed February 21, 2017 (Dawson IV).

         In July 2015, Dawson filed another motion to correct illegal sentence, relying on the Kansas Supreme Court's decision in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I). The district court summarily dismissed Dawson's petition in a minute order, stating "[s]entence was final long before Apprendi, Descamps [v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013)], and/or Dickey decisions. They do not apply to [defendant's] case retroactively."

         In September 2015, Dawson filed a motion to reconsider the summary dismissal. In that motion he contested the district court's rationale for summary denial-that Apprendi, Descamps, and Dickey did not apply to his sentence retroactively-and argued that "an incorrect criminal history classification can be challenged at any time." The district court denied the motion to reconsider in an October 19, 2015 minute order stating, "[n]o basis (legal or factual) for the court to reconsider." The district court issued a second minute order on October 26, 2015, stating: "[n]othing new presented that would cause [court] to re-consider." In his notice of appeal, Dawson referred to this ruling by its date, as well as to "the decision of the District Court to deny/dismiss the Motion to Correct Illegal Sentence filed pursuant to K.S.A. 22-3504." After the district court's orders from which Dawson appealed, Dawson filed yet another motion to correct illegal sentence and a motion to set aside judgment, which the district court summarily denied, stating, respectively: "[a]s previously ruled upon" and "[a]s per prior rulings."

         Dawson's appeal of the district court's summary denial of his September 2015 motion to reconsider was timely, no other notices of appeal were filed, and the time for filing has ...


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