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.
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.
of the judgment of the Court of Appeals in an unpublished
opinion filed February 3, 2017.
from Sedgwick District Court; John J. Kisner, Jr., judge.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender
Office, was on the brief for appellant.
J. Gillett, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
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.
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.
and Procedural Background
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.
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.
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.
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 ...