BY THE COURT
1. In a
direct appeal, a defendant will receive the benefit of any
change in the law that occurs while the direct appeal is
After a direct appeal is final, a movant seeking the
correction of an illegal sentence under K.S.A. 22-3504(1)
will have the sentence's legality determined by the law
in effect at the time the sentence was pronounced, unaffected
by any subsequent change in the law.
Although true changes in the law cannot transform a once
legal sentence into an illegal sentence for purposes of
correcting an illegal sentence under K.S.A. 22-3504(1), it
may be possible for developments in the law to impact the
original analysis of whether the sentence was illegal when
of the judgment of the Court of Appeals in 54 Kan.App.2d 65,
396 P.3d 100 (2017).
from Finney District Court; Wendel W. Wurst, judge.
E. Wells, of Jerry E. Wells, Attorney-at-Law, of Lawrence,
argued the cause, and J. Scott James, of James Law Firm LLC,
of Greensburg, was on the briefs for appellant.
R. Sherwood, assistant county attorney, argued the cause, and
Susan Lynn Hillier Richmeier, county attorney, and Derek
Schmidt, attorney general, were with him on the briefs for
State seeks our review of the Court of Appeal's decision
reversing the district court's summary denial of Jacob J.
McAlister Jr.'s 2015 motions to correct his allegedly
illegal sentences imposed in 1996. McAlister's K.S.A.
22-3504 motions contend that his sentences were based on an
incorrect criminal history score because his pre-Kansas
Sentencing Guidelines Act (KSGA) burglary convictions should
have been classified as nonperson felonies.
district court found McAlister's motions to be
procedurally barred, but the Court of Appeals held that,
pursuant to this court's opinion in State v.
Dickey, 305 Kan. 217, 380 P.3d 230 (2016) (Dickey
II), the motions were not procedurally barred. Further,
the panel held that Dickey II required that
McAlister's pre-KSGA convictions be classified as
nonperson felonies. State v. McAlister, 54
Kan.App.2d 65, 75-76, 78-79, 396 P.3d 100 (2017). Because
McAlister's sentences were legal when pronounced and were
final before the change in the law upon which he relies, we
reverse the Court of Appeals and affirm the district
court's denial of McAlister's K.S.A. 22-3504 motions,
albeit based upon a different rationale.
and Procedural Background
was convicted in 1996 in three separate criminal cases, which
were consolidated on direct appeal. His convictions included
several counts of possession of opiates, nonresidential
burglary, conspiracy to commit burglary, misdemeanor theft,
criminal damage to property, and three counts of aggravated
robbery. He received sentences of 52 months, 257 months, and
206 months, which were ordered to run consecutive. His
convictions and sentences were affirmed on direct appeal.
State v. McAlister, No. 78, 378, unpublished opinion
filed December 4, 1998 (Kan. App.), rev. denied 266
Kan. 1113 (1999). The mandate issued on February 3, 1999,
making McAlister's sentences final for purposes of
postconviction relief. Cf. K.S.A. 60-1507(f)(1)(A) (final
order of last appellate court on direct appeal starts
one-year time limit to file 60-1507 motion). Pointedly, that
finality occurred before Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that
judicial fact-finding by a sentencing court was
sentences were based on a criminal history score of A. His
criminal history score included two burglary convictions and
one conspiracy to commit burglary, all from 1992, before the