BY THE COURT
general rule in Kansas is that an overruling decision is
applied to all similar cases pending as of the date of the
overruling decision, regardless of when the cause of action
accrued. Consequently, appeals not yet final at the time of
the filing of State v. Keel, 302 Kan. 560, 357 P.3d
251 (2015), cert. denied 136 S.Ct. 865 (2016), are
governed by that decision and not the decision it overruled,
State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014).
Application of statutes in effect at the time a defendant
commits a crime does not violate the Ex Post Facto Clause of
the United States Constitution.
Classifying a crime as a person or nonperson offense does not
require an offense-specific factual determination or another
type of historical factfinding that gives rise to the right
to a jury trial under the Sixth Amendment to the United
States Constitution. Rather, the determination is a question
of law that turns solely on the application of the Kansas
Sentencing Guidelines Act-namely, a comparison of the
statutory elements of the prior crime to the statutory
elements of comparable offenses as codified at the time the
current offense was committed.
presented with a motion to correct an illegal sentence under
K.S.A. 22-3504, a district court should conduct a preliminary
examination of the motion to determine whether substantial
questions of law or fact are raised. This review does not
constitute a "proceeding, " which is the key word
in K.S.A. 22-3504(1) triggering the right to counsel and the
movant's right to be present. If substantial questions of
law or fact are not found, the motion may be denied without a
"proceeding"-i.e., a hearing at which the
movant's presence would be required.
from Sedgwick District Court; John J. Kisner, Jr., judge.
Maughan, of Maughan Law Group, of Wichita, was on the brief
A. Koon, assistant district attorney, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were on the
brief for appellee.
1996, Kenyon T. Campbell was convicted of first-degree
murder, an off-grid crime under the Kansas Sentencing
Guidelines Act (KSGA), and multiple on-grid crimes. When the
district court sentenced Campbell for his on-grid crimes, the
court classified several out-of-state convictions as person
felonies for purposes of computing Campbell's criminal
history score. In 2015, Campbell moved to correct what he
claimed was an illegal sentence under State v.
Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014) (all
pre-1993 out-of-state convictions must be classified as
nonperson felonies when calculating a defendant's
criminal history score), overruled by State v. Keel,
302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136
S.Ct. 865 (2016). The district court summarily denied relief,
and Campbell appealed.
reject each claim of error asserted on appeal and affirm.
Specifically, we hold: (1) Campbell is not entitled to have
his out-of-state convictions classified as nonperson offenses
under Murdock, which was overruled by Keel;
(2) application of Keel to Campbell's motion
does not violate the Ex Post Facto Clause of the United
States Constitution; (3) the KSGA's person/nonperson
classification of pre-KSGA offenses presents a question of
law and does not require factfinding that implicates the
right to a jury as guaranteed by the Sixth Amendment to the
United States Constitution; and (4) the district court did
not deprive Campbell of a statutory right to a hearing when
it summarily denied relief.
and Procedural History
convicted Campbell of committing, or participating in the
commission of, several offenses in Sedgwick County on March
22, 1996: first-degree murder, aggravated kidnapping,
aggravated criminal sodomy, kidnapping, attempted rape,
attempted kidnapping, and two counts of aggravated robbery.
Campbell entered into a sentencing agreement with the State
in which he agreed to be sentenced to life in prison for
first-degree murder and to 300 months for aggravated
kidnapping, with the 300 months to run concurrent with the
life sentence. Campbell and the State further agreed to
postpone sentencing on the remaining counts in order to allow
Campbell to fulfill his agreement to cooperate in locating
Ronald Etheridge, who was also accused of being involved in
the crimes, and to testify truthfully at Etheridge's
trial. If Campbell fulfilled his part of the agreement, the
State committed to recommending a downward durational
departures on the sentences that had yet to be imposed.
with the agreement, the district court sentenced Campbell to
life in prison for the first-degree murder and to 300 months
for the aggravated kidnapping conviction. The court took
sentencing on the other counts under advisement. In 2000,
more than three years after the original sentencing hearing
and after Campbell refused to testify at Etheridge's
trial, the district court imposed sentence on the remaining
counts: 77 months for the aggravated sodomy conviction, 51
months for each aggravated robbery conviction, 51 months for
the kidnapping conviction, 19 months for the attempted rape
conviction, and 34 months for the attempted ...