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State v. Tauer

Supreme Court of Kansas

July 12, 2019

State of Kansas, Appellee,
v.
Previn Tauer, Appellant.

         SYLLABUS BY THE COURT

         The point in time to assess a criminal sentence's legality for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence is the moment the sentence was pronounced. If a sentence was legal when pronounced, subsequent changes in the law will not render it illegal and amenable to correction under K.S.A. 22-3504(1).

         Review of the judgment of the Court of Appeals in an unpublished opinion filed December 2, 2016.

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

          Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, and Sean M.A. Hatfield, of the same firm, were on the briefs for appellant.

          Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

          OPINION

          Johnson, J.

         Previn Tauer seeks our review of the Court of Appeals' decision that affirmed the district court's denial of Tauer's 2014 motion to correct an allegedly illegal sentence that was imposed 20 years earlier. The issue for our review is whether the district court should have reclassified a 1991 New Mexico juvenile conviction for burglary as a nonperson felony pursuant to this court's holdings in State v. Dickey, 301 Kan. 1018, 1039-40, 350 P.3d 1054 (2015) (Dickey I), and State v. Dickey, 305 Kan. 217, 380 P.3d 230 (2016) (Dickey II). Because Tauer's original sentence was legal when pronounced and was final before the change in the law upon which he relies to establish the illegality of the sentence, we affirm the Court of Appeals.

         Factual and Procedural Overview

         We take the liberty of adopting the panel's recitation of the factual and procedural background of the case when it arrived at that court:

"In 1994, Tauer was convicted of second-degree murder and aggravated battery. The district court found Tauer had a criminal history classification of D, based in part on scoring his 1991 burglary conviction as a person felony. Tauer appealed his convictions and sentences, and this court affirmed. See State v. Tauer, No. 73, 634, 1996 WL 437154 (Kan. App. 1996) (unpublished opinion). The mandate in Tauer's direct appeal was issued September 26, 1996.
"In 2014, Tauer filed a motion to correct an illegal sentence, as provided in K.S.A. 22-3504, on the grounds his earlier burglary conviction should have been treated as a nonperson felony, thereby reducing his criminal history classification and his presumptive guidelines punishment. The district court denied the motion in a ruling from the bench. But a journal entry was not filed until much later. In the meantime, Tauer filed a notice of appeal from the denial of the motion. He then filed a motion with the district court to alter or amend the ruling. In due course, the district court denied the motion to alter or amend. Tauer filed a separate notice of appeal from that ruling.
"As a result, each appeal was docketed as a separate case in this court, even though they addressed the same substantive issue. The dual appeals created some awkward procedural issues, particularly regarding the district court's authority to consider the motion to alter or amend at all and the time deadlines for filing that notice of appeal. We have effectively eliminated those wrinkles by consolidating the appellate cases. One or the other appeal and possibly both properly present Tauer's substantive issues for our review." State v. Tauer, No. 114, 432, 2016 WL 7032167, at *1 (Kan. App. 2016) (unpublished opinion).

         The panel succinctly resolved the question presented here in favor of the State. It opined that the rule from Dickey I and Dickey II derives directly from Apprendi v. New Jersey,530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Tauer, 2016 WL 7032167, at *2. But per State v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001), Apprendi does not apply to a case that was final before Apprendi's filing date of June 26, 2000. Consequently, "the treatment of burglary convictions for criminal history purposes outlined in Dickey I and Dickey II, likewise, does not apply to [cases final before June ...


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