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State v. Weber

Supreme Court of Kansas

June 14, 2019

State of Kansas, Appellee,
v.
Robert M. Weber, Appellant.

         SYLLABUS

         1.

         An appellate court will not consider new issues raised for the first time in a letter of additional authority under Supreme Court Rule 6.09 (2019 Kan. S.Ct. R. 39).

         2.

         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, Kansas 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.

         3.

         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         Review of the judgment of the Court of Appeals in an unpublished opinion filed October 7, 2016.

          Appeal from Sedgwick District Court; John J. Kisner, Jr., judge.

          Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit Vogelsberg, of the same office, was on the briefs for appellant.

          Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

          OPINION

          BILES, J.

         Robert M. Weber challenges the district court's denial of a motion to correct an illegal sentence. He argues his 1976 Michigan conviction for assault with intent to commit criminal sexual conduct, second degree, was improperly scored as a person crime, resulting in a longer sentence following his 2007 attempted robbery conviction in Kansas. The Court of Appeals determined the person classification was correct. State v. Weber, No. 113, 472, 2016 WL 5867238, at *3 (Kan. App. 2016) (unpublished opinion).

         The overarching issue is whether the sentencing court properly classified Weber's 1976 Michigan conviction as a person crime. If it is scored as a nonperson crime, Weber's criminal history score is C instead of B. See K.S.A. 21-4709. That change would move Weber's sentence from presumptive imprisonment to presumptive probation, and the low grid-box sentence would drop from 27 to 25 months. See K.S.A. 21-4704.

         We affirm in accordance with State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) (Murdock II) (holding sentence that was legal when pronounced does not ...


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