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State v. Murdock

Supreme Court of Kansas

April 19, 2019

State of Kansas, Appellee,
v.
Jimmy Lee Murdock, Appellant.

         SYLLABUS BY

         Under K.S.A. 22-3504, the legality of a sentence is controlled by the law in effect at the time the sentence was pronounced. Therefore, a sentence that was legal when pronounced does not become illegal if the law subsequently changes.

          Appeal from Shawnee District Court; Nancy E. Parrish, judge.

          Samuel D. Schirer, of Kansas Appellate Defender Office, argued the cause, and Patrick H. Dunn, of the same office, was on the briefs for appellant.

          Steven J. Obermeier, assistant solicitor general, argued the cause, and Michael F. Kagay, district attorney, Brett Watson, deputy district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

          OPINION

          STEGALL, J.

         This is Jimmy Lee Murdock's second appeal to this court. In his first appeal, Murdock argued the district court miscalculated his criminal history score when it classified his two out-of-state offenses as person crimes, resulting in a criminal history score of A. State v. Murdock, 299 Kan. 312, 313, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015). We agreed, holding Murdock's prior out-of-state convictions must be scored as nonperson offenses. Murdock, 299 Kan. at 319. At resentencing, the Shawnee County District Court followed our mandate in Murdock, scored Murdock's prior out-of-state convictions as nonperson felonies, and found he had a criminal history score of C. Shortly after, Keel overruled Murdock, and the State moved to correct Murdock's sentence. The district court granted the motion and sentenced Murdock a third time, finding a criminal history score of A.

         On appeal, Murdock argues his second sentence was legally imposed under Murdock, and it did not become illegal after Keel changed the law. We agree and hold the legality of a sentence under K.S.A. 2018 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. Accordingly, we reverse and remand.

         Factual and Procedural Background

         As Murdock summarized:

"Murdock pleaded guilty to two counts of aggravated robbery and one count of robbery for crimes occurring in December 2008. To calculate his sentence, the district court found Murdock had two Illinois robbery convictions from 1984 and 1990 and a 1996 Kansas robbery conviction. It classified all three prior convictions as person offenses, which gave Murdock three or more adult convictions for person felonies. This treatment placed him in criminal history category A under K.S.A. 21-4709. Murdock was sentenced to 233 months' imprisonment for the first aggravated robbery conviction and concurrent 36-month sentences for the remaining two convictions. He would have fallen within criminal history category C if the two out-of-state convictions had been designated as nonperson offenses, resulting in a lesser sentence. See K.S.A. 21-4709; K.S.A. 21-4704." 299 Kan. at 313.

         At the time of Murdock's current offense, K.S.A. 21-4711(e) governed the classification of out-of-state convictions for criminal history purposes. K.S.A. 21-4711(e) stated: "The state of Kansas shall classify the [prior out-of-state] crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime." The core question in Murdock was, when should the "comparable offense" under the Kansas Sentencing Guidelines Act (KSGA) be determined-on the date the prior out-of-state crime was committed, or on the date the current Kansas crime was committed? Following State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010), overruled by Keel, 302 Kan. 560, the Murdock court declared "the comparable Kansas offense should be determined as of the date the out-of-state offenses were committed." Murdock, 299 Kan. at 317. Applying this rule, we held Murdock's out-of-state convictions must be scored as nonperson offenses because they were committed before the KSGA-and its distinction between person and nonperson crimes-was enacted. 299 Kan. at 319. Thus, we reversed and remanded with directions to "classify the prior out-of-state convictions as nonperson offenses." 299 Kan. at 319. The mandate issued in October 2014.

         The Shawnee County District Court resentenced Murdock in February 2015. In accordance with our mandate, the district court classified Murdock's out-of-state robberies as nonperson felonies, found he had a criminal history score of C, and sentenced him to a total of 102 months' imprisonment. The State did not object to Murdock's new criminal history score or appeal his new sentence.

         Six months later we decided Keel, which overruled Murdock and Williams to hold: "The comparable post-KSGA Kansas criminal statute is the one in effect at the time the current crime of conviction was committed," and as a result, "the classification of a prior conviction . . . for criminal history purposes under the KSGA must be based on the classification in effect for the comparable offense when the current crime of conviction was committed." Keel, 302 Kan. 560, Syl. ¶¶ 8-9. A few days after we decided Keel, the State filed a motion to correct an illegal sentence, asking the district court to sentence ...


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