State v. McIntyre ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,041
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TERRY MCINTYRE,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; AMY J. HANLEY, judge. Opinion filed February 4, 2022.
Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Emma Halling, assistant district attorney, Suzanne Valdez, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before MALONE, P.J., POWELL and ISHERWOOD, JJ.
PER CURIAM: Terry McIntyre appeals the district court's denial of his third motion
to correct illegal sentence. In 2000, a jury convicted McIntyre of aggravated robbery,
rape, aggravated criminal sodomy, kidnapping, and aggravated kidnapping. The district
court sentenced him to 645 months' imprisonment. For the first time on appeal, McIntyre
argues his criminal history score incorrectly classified his 1982 Missouri conviction for
exhibiting a dangerous weapon as a person felony because the statute defining the
Missouri offense was repealed in 1981. For the reasons explained below, we reject
McIntyre's claim and affirm the district court's judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
In 2000, a jury convicted McIntyre of aggravated robbery, rape, aggravated
criminal sodomy, kidnapping, and aggravated kidnapping for crimes committed in 1999.
McIntyre had a criminal history score of B—based on a 1982 Missouri conviction for
exhibiting a dangerous weapon and a 1982 Missouri conviction of robbery, which were
scored as person felonies. Based on this score, the district court sentenced McIntyre to
645 months' imprisonment. This court affirmed his convictions on direct appeal. State v.
McIntyre, No. 86,715, 2002 WL 35657434 (Kan. App. 2002) (unpublished opinion)
(McIntyre I).
In May 2014, McIntyre filed his first motion to correct illegal sentence, arguing
that the district court incorrectly calculated his criminal history score by classifying his
two Missouri convictions as person felonies. McIntyre asserted that because the Missouri
crimes were committed before the enactment of the Kansas Sentencing Guidelines Act
(KSGA), they had to be classified as nonperson felonies based on State v. Murdock, 299
Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel, 302 Kan. 560, Syl. ¶ 9, 357
P.3d 251 (2015), cert. denied 577 U.S. 1090 (2016) (Murdock I).
The district court denied McIntyre's motion, pointing out that the Kansas Supreme
Court overruled Murdock I in Keel. The district court found Keel established that pre-
KSGA convictions were to be classified based on the comparable Kansas offense in
effect at the time of the current crime of conviction. Under this framework, the district
court reasoned that the Missouri robbery conviction was a person felony. The district
court also reasoned that McIntyre's prior Missouri conviction for exhibiting a dangerous
weapon was comparable to the Kansas crime of aggravated assault, a person felony. This
court affirmed the district court's decision. State v. McIntyre, No. 116,004, 2016 WL
7324508, at *1 (Kan. App. 2016) (unpublished opinion) (McIntyre II).
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In March 2016, McIntyre filed a second motion to correct illegal sentence, arguing
that his sentence was illegal because it stemmed from unverified convictions and that
because his Missouri crimes were imposed concurrently, they could only be considered
one conviction for criminal history purposes. The district court denied McIntyre's second
motion, and this court affirmed the district court's decision. State v. McIntyre, No.
117,787, 2018 WL 3321177 (Kan. App. 2018) (unpublished opinion) (McIntyre III).
On November 21, 2019, McIntyre filed his third motion to correct illegal sentence,
the basis for this appeal. He argued that his Missouri conviction of exhibiting a deadly
weapon was not comparable to the Kansas crime of simple assault and, thus, his prior
conviction must be scored as a nonperson felony. He also asserted that State v. Murdock,
309 Kan. 585, 439 P.3d 307 (2019) (Murdock II), established that Keel was a change in
law and, thus, his Missouri robbery conviction must be scored as a nonperson felony.
Finally, he argued that because his two Missouri convictions arose from a single case, the
court could not score the two convictions individually in his criminal history score.
On August 20, 2020, the district court denied McIntyre's 2019 motion to correct
illegal sentence. The district court found the law of the case doctrine applied because the
legality of the person classification of his prior convictions was previously addressed by
the appellate court. The district court also found that Murdock II required that the legality
of a sentence is determined by the law in effect at the time of sentencing and that under
those laws, prior offenses need only be comparable not identical. The district court found
exhibiting a deadly weapon comparable to the Kansas crime of aggravated assault and
pointed out that nothing in the record suggested that the sentencing court relied on a
comparison to the crime of simple assault. Finally, the district court found McIntyre's
argument that the court could only count one of the two Missouri convictions in his
criminal history score because they arose from the same case to be "without merit."
McIntyre timely appealed the district court's judgment.
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DID THE DISTRICT COURT IMPOSE AN ILLEGAL SENTENCE?
For the first time on appeal, McIntyre argues that his criminal history score
incorrectly classified his 1982 Missouri conviction for exhibiting a dangerous weapon as
a person felony because the statute for the crime was repealed in 1981. McIntyre argues
that K.S.A. 21-4710(d)(9) requires that his exhibiting a dangerous weapon conviction be
classified based on comparable Kansas offenses as of the date of its repeal, 1981.
McIntyre then asserts that because the KSGA did not have person and nonperson
classifications in 1981, his conviction should have been scored as a nonperson crime.
The State counters that this court cannot hear this issue because it is raised for the
first time on appeal and that the issue is foreclosed by the law of the case doctrine. On the
merits, the State asserts that McIntyre's argument misreads the statute and disregards the
controlling portions of the KSGA.
McIntyre acknowledges that he did not raise this issue before the district court, but
he argues this court should address the issue because an illegal sentence can be corrected
at any time. The illegal sentence statute, K.S.A. 2020 Supp. 22-3504(a), explicitly states
that an illegal sentence can be corrected at any time. Moreover, our Supreme Court has
stated that a legal challenge to the classification of a prior conviction in a criminal history
score can be raised for the first time on appeal under the illegal sentence statute. State v.
Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015). As a result, we will address
McIntyre's illegal sentence claim even though he raises it for the first time on appeal.
To begin, the State argues that this issue is foreclosed by the law of the case
doctrine. The law of the case doctrine is a common law rule which states that "'[w]hen a
second appeal is brought to this court in the same case, the first decision is the settled law
of the case on all questions involved in the first appeal, and reconsideration will not
normally be given to such questions.'" State v. Cheeks, 313 Kan. 60, 66, 482 P.3d 11294
(2021). "[T]he doctrine applies not only to matters actually decided in the prior
proceedings, but also to matters for which the party failed to seek review in a prior
proceeding." State v. Parry, 305 Kan. 1189, 1195, 390 P.3d 879 (2017). But the argument
McIntyre is making here has never been raised or ruled on in district court or on appeal in
any of the prior proceedings. There is no "law of the case" that forecloses McIntyre's
claim, not even a ruling in district court for which McIntyre failed to seek review. Thus,
we reject the State's argument that the issue is foreclosed by the law of the case doctrine.
The State has not argued whether the broader doctrine of res judicata bars McIntyre's
claim, so we will not address whether that procedural bar applies.
Analysis on the merits
McIntyre received a criminal history score of B, based in part on a 1982 Missouri
conviction for exhibiting a deadly weapon and a 1982 Missouri conviction for robbery
that were each scored as a person felony. McIntyre only challenges the classification of
his 1982 Missouri conviction for exhibiting a deadly weapon. Thus, he has waived any
challenge to the person classification of his 1982 robbery conviction. See State v. Arnett,
307 Kan. 648, 650, 413 P.3d 787 (2018) (an issue not briefed is waived or abandoned).
Both parties acknowledge that McIntyre's conviction for exhibiting a deadly weapon
occurred under Mo. Rev. Stat. § 571.115 (1978), a class D felony under Missouri law.
This statute was repealed in 1981, even before McIntyre's conviction for his acts
committed earlier that year, but as the State points out, the Missouri crime of exhibiting a
deadly weapon was merely recodified at Mo. Rev. Stat. § 571.030(4) as part of a
reorganization of Missouri statutes relating to firearms and other weapons.
McIntyre relies on K.S.A. 21-4710(d)(9)—which states that in determining an
offender's criminal history, "[p]rior convictions of a crime defined by a statute which has
since been repealed shall be scored using the classification assigned at the time of such
conviction"—as establishing that his sentence is illegal. McIntyre asserts that because the
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Missouri statute for exhibiting a deadly weapon was repealed in 1981, under K.S.A. 21-
4710(d)(9), his conviction should have been classified by comparing the Missouri offense
to the 1981 laws in Kansas, which included no person or nonperson classifications. As a
result, McIntyre asserts his prior conviction must be scored as a nonperson offense, and
"his sentence is now, and has always been, illegal."
The State counters that McIntyre's argument disregards K.S.A. 1999 Supp. 21-
4711, which dictates how out-of-state prior convictions are to be scored. The State asserts
that McIntyre's reasoning would lead to the automatic classification of all out-of-state
convictions under statutes that have since been repealed as nonperson crimes. The State
also argues that caselaw from this court establishes that K.S.A. 2020 Supp. 21-
6810(d)(8), the modern codification of K.S.A. 21-4710(d)(9), only applies to prior
Kansas crimes committed after the enactment of the KSGA.
An illegal sentence is one that is "[i]mposed by a court without jurisdiction; that
does not conform to the applicable statutory provision, either in character or punishment;
or that is ambiguous with respect to the time and manner in which it is to be served at the
time it is pronounced." K.S.A. 2020 Supp. 22-3504(c)(1). Whether prior convictions were
misclassified, causing an incorrect criminal history score and thus an illegal sentence, is
subject to unlimited review. Murdock II, 309 Kan. at 590. Similarly, appellate courts
apply unlimited review to issues involving statutory construction. State v. Alvarez, 309
Kan. 203, 205, 432 P.3d 1015 (2019).
The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. State v. LaPointe, 309 Kan. 299,
314, 434 P.3d 850 (2019). An appellate court must first attempt to ascertain legislative
intent through the statutory language enacted, giving common words their ordinary
meanings. See State v. Ayers, 309 Kan. 162, 163-64, 432 P.3d 663 (2019). When a statute
is plain and unambiguous, an appellate court should not speculate about the legislative
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intent behind the clear language, and it should refrain from reading something into the
statute that is not readily found in its words. 309 Kan. at 164.
In the first place, it is unclear whether K.S.A. 21-4710(d)(9), the statute McIntyre
relies on, even applies here. Our court has found that the recodification of a criminal
statute without a substantive change to the definition of the crime does not amount to a
repeal. State v. Murray, No. 113,622, 2017 WL 544641, at *9 (Kan. App. 2017)
(unpublished opinion). Then, in State v. Lyon, 58 Kan. App. 2d 474, 489-92, 471 P.3d
716, rev. denied 312 Kan. 898 (2020), our court found that it need not decide whether a
recodification of a statute constituted a repeal because either way, K.S.A. 2017 Supp. 21-
6810(d)(8) does not apply to prior out-of-state convictions or pre-KSGA Kansas
convictions. We will not address these decisions in any more detail because, even if we
assume these statutes apply to McIntyre's case, his illegal sentence claim fails under the
plain language of the statutory scheme that applied to McIntyre's sentence.
Our Supreme Court has clarified that the legality of a sentence is determined by
the law in effect when the sentence was pronounced. Murdock II, 309 Kan. at 592.
Because McIntyre committed his current crimes in 1999, the law in effect then controls
his sentence. In 1999, K.S.A. 21-4710 stated in relevant part:
"(a) Criminal history categories contained in the sentencing guidelines grid for
nondrug crimes and the sentencing guidelines grid for drug crimes are based on the
following types of prior convictions: Person felony adult convictions, nonperson felony
adult convictions, person felony juvenile adjudications, nonperson felony juvenile
adjudications, person misdemeanor adult convictions, nonperson class A misdemeanor
adult convictions, person misdemeanor juvenile adjudications, nonperson class A
misdemeanor juvenile adjudications, select class B nonperson misdemeanor adult
convictions, select class B nonperson misdemeanor juvenile adjudications and
convictions and adjudications for violations of municipal ordinances or county
resolutions which are comparable to any crime classified under the state law of Kansas as
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a person misdemeanor, select nonperson class B misdemeanor or nonperson class A
misdemeanor. A prior conviction is any conviction, other than another count in the
current case which was brought in the same information or complaint or which was
joined for trial with other counts in the current case pursuant to K.S.A. 22-3203 and
amendments thereto, which occurred prior to sentencing in the current case regardless of
whether the offense that led to the prior conviction occurred before or after the current
offense or the conviction in the current case.
....
"(d) Except as provided in K.S.A. 21-4716, and amendments thereto, the
following are applicable to determining an offender's criminal history classification:
....
(9) Prior convictions of a crime defined by a statute which has since been
repealed shall be scored using the classification assigned at the time of such conviction."
K.S.A. 21-4710 (Furse 1995).
McIntyre asserts that the plain language of subsection (d)(9) means that the
classification of a prior offense, under a statute that has since been repealed, is
determined based on the date of the repeal of the statute. But his argument disregards the
plain language of the subsection and "'add[s] something not readily found in the statute.'"
Ayers, 309 Kan. at 164. Subsection (d)(9) does not state that the date of repeal controls,
instead it states that the classification assigned at the time of the prior conviction controls.
More importantly, McIntyre's argument disregards K.S.A. 1999 Supp. 21-4711(e)
which applied "[i]n addition to the provisions of K.S.A. 21-4710." In K.S.A. 1999 Supp.
21-4711(e), the Legislature specifically enumerated how out-of-state convictions, like
McIntyre's, were to be classified:
"Out-of-state convictions and juvenile adjudications will be used in classifying
the offender's criminal history. An out-of-state crime will be classified as either a felony
or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in
another state, it will be counted as a felony in Kansas. The state of Kansas shall classify
the crime as person or nonperson. In designating a crime as person or nonperson
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comparable offenses shall be referred to. If the state of Kansas does not have a
comparable offense, the out-of-state conviction shall be classified as a nonperson crime.
Convictions or adjudications occurring within the federal system, other state systems, the
District of Columbia, foreign, tribal or military courts are considered out-of-state
convictions or adjudications. The facts required to classify out-of-state adult convictions
and juvenile adjudications must be established by the state by a preponderance of the
evidence."
Under K.S.A. 1999 Supp. 21-4711(e), the State had to first consider whether the
prior conviction was a misdemeanor or felony according to the convicting jurisdiction.
Missouri classified the offense of exhibiting a dangerous weapon as a class D felony at
the time of McIntyre's conviction. McIntyre does not dispute the classification of his
Missouri conviction as a felony.
Next, under K.S.A. 1999 Supp. 21-4711(e), the State had to consider whether the
crime should be classified as a person or nonperson crime. McIntyre asserts that K.S.A.
21-4710(d)(9) directs that his out-of-state conviction be compared to the Kansas laws in
effect at the time of the out-of-state statute's repeal. But no such language is found in
subsection (d)(9). In fact, subsection (d)(9) does not speak to comparable offenses or
classifying the crime as a person or nonperson crime at all.
Instead, K.S.A. 1999 Supp. 21-4711(e) speaks directly to classifying out-of-state
crimes as either a nonperson or person crime. Under it, the sentencing court had to
compare the out-of-state conviction to Kansas "comparable offenses." Kansas caselaw
has firmly established that at the time of McIntyre's sentencing, the comparable offense
analysis required comparison to Kansas crimes in effect at the time of the current crime
of conviction. See Keel, 302 Kan. at 590 ("[T]he classification of a prior conviction or
juvenile adjudication as a person or nonperson offense for criminal history purposes
under the KSGA is determined based on the classification in effect for the comparable
Kansas offense at the time the current crime of conviction was committed.").
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The analysis under K.S.A. 1999 Supp. 21-4711(e) and Keel has been performed
before in this case. In response to the first motion to correct illegal sentence, the district
court agreed with the person classification of McIntyre's Missouri conviction for
exhibiting a dangerous weapon based on comparison with the 1999 Kansas person felony
of aggravated assault. This court upheld this classification in McIntyre's prior appeal. See
McIntyre II, 2016 WL 7324508, at *1 (finding district court did not err in classifying
McIntyre's pre-1993 Missouri convictions as person offenses). As this court has already
found, the district court correctly scored McIntyre's Missouri conviction for exhibiting a
dangerous weapon as a person felony, and McIntyre received a legal sentence. The repeal
of the Missouri statute—at least in McIntyre's case—does not change this analysis.
In sum, McIntyre misconstrues K.S.A. 21-4710(d)(9) and reads too much into the
language of the statute. The provision does not say that prior convictions of a crime
defined by a statute which has since been repealed shall not be scored in the offender's
criminal history. And the provision does not say that prior convictions of a crime defined
by a statute which has since been repealed shall be scored using the classification at the
time the statute is repealed. The provision merely states that prior convictions of a crime
defined by a statute which has since been repealed shall be scored using the classification
assigned at the time of such conviction. This provision must be read in conjunction with
the language in K.S.A. 1999 Supp. 21-4711(e) that addresses how out-of-state
convictions will be used in classifying the offender's criminal history. Applying K.S.A.
1999 Supp. 21-4711(e) and Keel, McIntyre's 1982 conviction for exhibiting a dangerous
weapon was properly scored as a person felony. Thus, the district court did not err in
denying McIntyre's motion to correct illegal sentence.
Affirmed.
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