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.
from Shawnee District Court; Nancy E. Parrish, judge.
D. Schirer, of Kansas Appellate Defender Office, argued the
cause, and Patrick H. Dunn, of the same office, was on the
briefs for appellant.
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.
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.
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.
and Procedural Background
"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.
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.
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.
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 ...