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State v. McAlister

Supreme Court of Kansas

July 12, 2019

State of Kansas, Appellee,
v.
Jacob J. McAlister, Jr., Appellant.

         SYLLABUS 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 pending.

         2. 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.

         3. 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 pronounced.

         Review of the judgment of the Court of Appeals in 54 Kan.App.2d 65, 396 P.3d 100 (2017).

          Appeal from Finney District Court; Wendel W. Wurst, judge.

          Gerald 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.

          Brian 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 appellee.

          JOHNSON, J.

         The 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.

         The 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.

         Factual and Procedural Background

         McAlister 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 unconstitutional.

         McAlister's 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 ...


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