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State v. Sartin

Supreme Court of Kansas

August 16, 2019

State of Kansas, Appellee,
v.
Billy Sartin, Appellant.

         SYLLABUS

         1. When the legality of a sentence is challenged with a motion to correct an illegal sentence pursuant to K.S.A. 22-3504(1), the determination of the sentence's legality is controlled by the law in effect at the time the sentence was pronounced. For purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law.

         2. K.S.A. 22-3504(1) directs that an illegal sentence may be corrected at any time. Consequently, an appellate court has the authority to consider an illegal sentence issue raised for the first time on appeal.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed February 3, 2017.

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

          Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, was on the brief for appellant.

          Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          JOHNSON, J.

         Billy Sartin seeks review of the Court of Appeal's decision affirming the district court's summary denial of his motion to correct an allegedly illegal sentence imposed in 1995. Sartin contends that five of his prior Illinois convictions were improperly classified as person felonies in his Kansas Sentencing Guidelines Act (KSGA) criminal history calculation. The Court of Appeals considered and rejected Sartin's challenge to the classification of one of his prior convictions but refused to consider the legality of the other four convictions, deeming those challenges to have been made for the first time on appeal.

         We affirm the panel's determination on the merits relative to the one conviction it considered, but reverse its erroneous holding that it could not consider the legality of the other four prior convictions. We remand to the Court of Appeals with directions to consider and rule on the merits of the legality of the other four prior Illinois convictions.

         Factual and Procedural Background

         Following his 1995 convictions for aggravated kidnapping, aggravated criminal sodomy, sexual battery, aggravated robbery, and robbery, Billy Sartin was sentenced to 604 months in prison. His sentence was calculated using a criminal history score of A, which included five prior felony convictions from Illinois: two convictions in 1987 for aggravated criminal sexual battery, two 1987 convictions for home invasion, and one 1993 conviction for aggravated criminal sexual abuse. The robbery conviction was remanded on direct appeal and the State opted against re-prosecuting it; Sartin's sentence was reduced to 570 months. State v. Sartin, No. 74, 791, unpublished opinion filed November 15, 1996 (Kan. App.). The mandate issued February 7, 1997.

         In June 2015, Sartin filed a pro se K.S.A. 22-3504 motion to correct an illegal sentence, arguing that one of his Illinois convictions, for aggravated criminal sexual abuse, should be scored as a nonperson felony pursuant to State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (Murdock I), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), which had held that all prior out-of-state convictions must be scored as nonperson crimes.

         The State responded and noted that Murdock I had been overruled by Keel and, in addition, the Murdock I holding was being legislatively abrogated. The district court denied Sartin's motion, noting in a motions minute sheet that the motion was denied because of Keel and H.B. 2053 (2015), the legislation abrogating the Murdock I holding.

         The Court of Appeals affirmed the district court's denial. On the merits, the panel found that, for KSGA criminal history scoring purposes, the Illinois crime of aggravated criminal sexual abuse was comparable to the Kansas crime of aggravated sexual battery, K.S.A. 1994 Supp. 21-3518, which was a person felony. State v. Sartin, No. 115, 172, 2017 WL 462696, at *4 (Kan. App. 2017) (unpublished opinion). But the panel declined to consider the merits of Sartin's challenge to his other four Illinois convictions because he had not specifically mentioned ...


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