BY THE COURT
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).
of the judgment of the Court of Appeals in an unpublished
opinion filed December 2, 2016.
from Sedgwick District Court; John J. Kisner Jr., judge.
F.A. Maughan, of Maughan Law Group LC, of Wichita, and Sean
M.A. Hatfield, of the same firm, were on the briefs for
A. Koon, assistant district attorney, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were on the
briefs for appellee.
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.
and Procedural Overview
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 App. 1996) (unpublished opinion).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)
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