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State v. Dubry

Supreme Court of Kansas

June 28, 2019

State of Kansas, Appellee,
v.
Lloyde Dubry, 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 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         Review of the judgment of the Court of Appeals in an unpublished opinion filed August 26, 2016.

          Appeal from Shawnee District Court; Cheryl A. Rios, judge.

          Clayton J. Perkins, of Capital Appellate Defender Office, and Joanna Labastida, of Kansas Appellate Defender Office, were on the briefs for appellant.

          Jodi Litfin, assistant solicitor general, and Elizabeth A. Billinger, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

          OPINION

          BILES, J.

         Lloyde Dubry moved to correct his sentence several years after it was imposed, arguing the sentencing court improperly scored a prior Wyoming conviction as a person crime. The sole issue is whether the Court of Appeals erred in affirming the district court's denial of the motion on the basis that the Wyoming offense's classification was correct. We affirm based on State v. Murdock, 309 Kan. 585, Syl., 439 P.3d 307 (2019) (Murdock II) (holding sentence that was legal when pronounced does not become illegal if the law subsequently changes).

         Factual and Procedural Background

         Dubry pleaded guilty to kidnapping, a severity level 3 felony. The State alleged the crime occurred on December 6, 2010. The district court accepted the plea and adjudged him guilty. He was sentenced on March 30, 2011.

         Dubry's presentence investigation report reflected three prior convictions and recommended that each be scored as a person felony. These were: a pre-1993 Kansas aggravated criminal sodomy conviction; a pre-1993 Kansas aggravated kidnapping conviction; and a 1981 Wyoming conviction for immodest, immoral, or indecent liberties with a child. Based on this, the PSI report recommended an A criminal history score. Defense counsel did not object. Applying the A criminal history score, the district court sentenced Dubry to 233 months' imprisonment.

         In 2015, Dubry filed a motion to correct his sentence arguing the prior convictions should have been scored as nonperson offenses since they predated the KSGA, relying on State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014) (Murdock I) (prior out-of-state conviction to be compared to Kansas law in effect at time of prior conviction to determine whether prior conviction scored as person or nonperson offense, resulting "in the classification of all out-of-state pre-1993 crimes as nonperson felonies"), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015). The district court denied the motion and Dubry timely appealed.

         On appeal, Dubry shifted his illegal sentence argument and claimed only that the Wyoming conviction should not have been scored as a person crime because the Wyoming statute is broader than the counterpart Kansas offense. He contended the Wyoming and Kansas offenses could not be deemed comparable without judicial fact-finding that violated his Sixth and Fourteenth Amendment rights under the United States Constitution. See Descamps v. United States, 570 U.S. 254, 260-61, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (holding prior conviction can qualify as predicate offense for sentencing enhancement under federal Armed Career Criminal Act only if offense's elements are identical to or narrower than elements of generic offense); Apprendi v. New Jersey, 530 ...


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