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.
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of the judgment of the Court of Appeals in an unpublished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 August 26, 2016.
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.
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.
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
and Procedural Background
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.
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
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.
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 ...