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.
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
of the judgment of the Court of Appeals in an unpublished
opinion filed July 21, 2017.
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.
Tate Mann, of Kansas Appellate Defender Office, argued the
cause and was on the briefs for appellant.
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.
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.
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.
and Procedural Background
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.
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
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