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State v. Newton

Supreme Court of Kansas

June 7, 2019

State of Kansas, Appellee,
v.
Clyde Lacy Newton Jr., Appellant.

         SYLLABUS

         1. The Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., uses prior out-of-state convictions when calculating a person's criminal history. Under the Act, the State classifies an out-of-state conviction as a person or nonperson offense by referring to comparable offenses under the Kansas criminal code. If the Kansas criminal code does not have a comparable offense, the out-of-state conviction is classified as a nonperson crime.

         2. 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. Therefore, a sentence that was legal when pronounced does not become illegal if the law subsequently changes.

          Review of the judgment of the Court of Appeals in an unpublished opinion filed July 21, 2017.

          Appeal from Saline District Court; Rene S. Young, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

          Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

          Anna M. Jumpponen, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

          OPINION

          Biles, J.

         Clyde Lacy Newton Jr. argues the person felony classification given to his prior California robbery conviction made his sentence in this Kansas criminal case illegal when determining his criminal history score. He urges us to follow State v. Wetrich, 307 Kan. 552, 561-62, 412 P.3d 984 (2018) (elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced). The State argues Wetrich is inapplicable, noting the Legislature amended the statute governing motions to correct an illegal sentence to provide that "a change in the law that occurs after the sentence is pronounced" does not make a sentence "'illegal.'" K.S.A. 2018 Supp. 22-3504(3). But this appeal's resolution does not lay at the end of either of those analytical paths.

         Instead, we follow State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) (Murdock II) (holding sentence that was legal when pronounced does not become illegal if the law subsequently changes). And based on that, Newton's 1977 California robbery conviction was properly classified as a person felony under our caselaw in 2008 when his sentence in the Kansas case became final. See State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003) (holding "the comparable offense" was "the closest approximation" to the out-of-state crime), overruled on other grounds by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). Accordingly, we affirm.

         Factual and Procedural Background

         Newton pleaded guilty to one count of attempted rape, a severity level 3 person felony. At sentencing, the district court determined he had a criminal history score of B, in part due to a 1977 California robbery conviction, which the Kansas court classified as a person felony. The court granted Newton's motion for durational departure and sentenced him in 2008 to 168 months in prison and lifetime postrelease supervision. Newton did not appeal his sentence.

         In 2014, Newton filed a motion to correct an illegal sentence. He argued the district court incorrectly calculated his criminal history score by classifying some pre-1993 convictions as person felonies contrary to State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (Murdock I), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015). The court denied the motion, concluding Murdock I did not apply retroactively. Newton appealed.

         Before Newton filed his opening appellate brief, Keel overruled Murdock I. Adapting, he claimed his sentence was illegal for two other reasons: (1) his 1977 California robbery conviction could not be classified as a person felony without engaging in improper fact-finding in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (2) the district court improperly imposed mandatory lifetime postrelease ...


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