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 55 Kan.App.2d 109,
408 P.3d 995 (2017).
from Sedgwick District Court; John J. Kisner Jr., judge.
L. Falk, of Law Office of Roger L. Falk, P.A., of Wichita,
argued the cause and was on the briefs for appellant.
J. Gillett, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with him on the briefs for appellee.
M. Dawson seeks review of the Court of Appeals' decision
to affirm the district court's summary denial of his 2015
motion to correct an illegal sentence with respect to his
1997 jury trial conviction for rape. On review, Dawson
contends that his sentence was based on an incorrectly
calculated criminal history score because a pre-Kansas
Sentencing Guidelines Act (KSGA) burglary conviction was
erroneously classified as a person felony.
principally relies on State v. McAlister, 54
Kan.App.2d 65, 75-76, 78-79, 396 P.3d 100 (2017)
(McAlister I), which held that our decision in
State v. Dickey, 305 Kan. 217, 380 P.3d 230 (2016)
(Dickey II), required the correction of all
sentences that had classified pre-KSGA burglary convictions
as person felonies. But the Dawson panel held that
the holding in McAlister I was superseded by the
retroactive application of a 2017 amendment to K.S.A.
22-3504. Dawson, 55 Kan.App.2d at 118. Because we
have reversed the McAlister I panel's decision,
we arrive at the same destination as the Dawson
panel below, albeit via a different route.
and Procedural Overview
the liberty of adopting the Court of Appeals' description
of the factual and procedural background of this case, up to
the time it arrived in that court:
"On June 4, 1997, a jury found Dawson guilty of rape and
the following month the district court sentenced him to serve
732 months in prison. A criminal history category B was
computed for Dawson's sentencing based on two person
felony convictions: a 1986 residential burglary and the
conversion of three person misdemeanor convictions, scored as
a second person felony. A claim that the district court erred
in aggregating the misdemeanor convictions was among
Dawson's arguments on direct appeal. This court affirmed
Dawson's conviction and sentence. State v.
Dawson, No. 79, 652, unpublished opinion filed December
23, 1999 (Kan. App.), rev. denied269 Kan. 935
(2000) (Dawson I). ...