BY THE COURT
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.
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.
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.
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.
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).
from Sedgwick District Court; John J. Kisner Jr., judge.
L. Falk, of Law Office of Roger L. Falk, P.A., of Wichita,
J. Gillett, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, for
Arnold-Burger, C.J., Gardner, J., and Stutzman, S.J.
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.
and Procedural Background
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Dawson, No. 79, 652, unpublished opinion filed December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.
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).
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."
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."
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