State v. Johnson ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,825
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
BYRON K. JOHNSON,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed December 23,
2021. Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE, J., and JAMES L. BURGESS, S.J.
PER CURIAM: Byron Johnson appeals the denial of his motion to correct an illegal
sentence. He argues the short-lived rule announced by our Supreme Court in State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (Murdock I)—that all pre-1993 out-of-state
convictions had to be scored as nonperson offenses for criminal history purposes,
overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015)—applies to his 2011
sentencing because the Murdock I rule was dictated by the Supreme Court in State v.
Williams, 291 Kan. 554, 244 P.3d 667 (2010), overruled by Keel, 302 Kan. 560. Finding
that Murdock I does not apply, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
Johnson was convicted of one count of rape and four counts of aggravated incest
between 2005 and 2009. At sentencing in November 2011, the court scored Johnson's
criminal history as C based in part on a 1992 Illinois armed robbery conviction
designated as a person felony. He was sentenced to 400 months in prison. His convictions
and sentence were affirmed on appeal. State v. Johnson, No. 107,524, 2013 WL 2321167(Kan. App. 2013) (unpublished opinion). The appellate mandate was filed in October
2013.
In May 2014, our Supreme Court held all out-of-state pre-1993 crimes must be
scored as nonperson offenses for criminal history purposes. Murdock I, 299 Kan. at 319.
In July 2014, Johnson filed a motion to correct an illegal sentence. He argued his
Illinois conviction must be scored as a nonperson felony under Murdock I. In July 2015,
the district court summarily denied the motion, finding that the statutory amendments
made by 2015 House Bill No. 2053 in response to Murdock I operated retroactively.
Johnson timely appealed that decision. For reasons unknown, the appeal was not
docketed until this year.
ANALYSIS
Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question
of law over which the appellate court has unlimited review. State v. Sartin, 310 Kan. 367,
369, 446 P.3d 1068 (2019). A court may correct an illegal sentence at any time while the
defendant is serving the sentence. K.S.A. 2020 Supp. 22-3504(a). The legality of a
sentence is controlled by the law in effect at the time the sentence was pronounced. A
sentence that was legal when pronounced does not become illegal if the law subsequently
changes. State v. Murdock, 309 Kan. 585, Syl., 439 P.3d 307 (2019) (Murdock II).
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An offender's sentence in Kansas is determined in part by the offender's criminal
history. The sentencing court assigns the offender a criminal history score based on the
number and type of their prior convictions. At the time of Johnson's sentencing, K.S.A.
21-4711(e) provided prior out-of-state convictions should be classified as person or
nonperson based on the comparable Kansas offense:
"Out-of-state convictions and juvenile adjudications shall be used in classifying
the offender's criminal history. . . . The state of Kansas shall classify the crime as person
or nonperson. In designating a crime as person or nonperson 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."
Initially, to determine an offender's criminal history score, Kansas courts
compared the prior out-of-state crime to the Kansas offense in effect when the offender
committed their current crimes. In State v. Vandervort, 276 Kan. 164, 178-80, 72 P.3d
925 (2003), overruled in part by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015),
the court compared Vandervort's 1980 Virginia convictions to the Kansas offenses in
effect when Vandervort committed his current crimes sometime between 1996 and 2000.
Because the comparable Kansas crime was classified as a nonperson crime prior to 1998,
and Vandervort's current crimes may have occurred before 1998, the court held the prior
crimes had to be scored as nonperson offenses. Vandervort, 276 Kan. at 178-80.
But then the Williams court misread Vandervort. In Williams, the issue was
whether Williams' 2001 and 2002 Washington convictions for identity theft should be
scored as person offenses. When Williams committed and was sentenced for her
Washington crimes, identity theft in Kansas was a person felony. But in 2005, the Kansas
Legislature amended the statute reducing identity theft to a nonperson felony. Williams
committed her current offenses in June 2005 and in 2006. The Williams court held that
when designating out-of-state convictions as person or nonperson, "the comparable
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offenses in Kansas shall be determined as of the date the defendant committed the out-of-
state crimes." 291 Kan. 554, Syl. ¶ 4. But Williams did not involve a pre-1993 prior
offense. The opinion was issued in December 2010.
After Williams, panels of this court applied the Williams holding when the prior
out-of-state offense at issue was committed after the Kansas Sentencing Guidelines Act
was adopted in 1993. But when the prior out-of-state offense occurred prior to 1993, this
court continued to compare the out-of-state offense to current guideline's offenses. See
Murdock I, 299 Kan. at 316.
Then, in May 2014, came Murdock I. Our Supreme Court reversed a Court of
Appeals panel and held Murdock's 1984 and 1990 Illinois robbery convictions had to be
scored as nonperson felonies because Kansas did not begin classifying offenses as person
or nonperson until 1993. In doing so, the Supreme Court criticized the panel for not
addressing Williams in its decision. Following its Williams precedent, the Murdock I
court held all out-of-state pre-1993 crimes had to be classified as nonperson offenses. 299
Kan. at 315-19.
Murdock I was quickly overruled by Keel, 302 Kan. 560. The Keel court
recognized that Williams was wrongly decided and, since Murdock I followed from
Williams, the Keel court overruled both Williams and Murdock I. Keel, 302 Kan. at 589.
The Keel court held the classification of a prior conviction as a person or nonperson
offense for criminal history purposes "is determined based on the classification in effect
for the comparable Kansas offense at the time the current crime of conviction was
committed." 302 Kan. at 590.
In Murdock II, the court held "the legality of a sentence is determined by the law
in effect at the time the sentence was pronounced." 309 Kan. at 592. The court noted that
Murdock I was controlling law "for a short window of time" and "in effect when
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Murdock's second sentence was pronounced." Murdock II, 309 Kan. at 593. Thus, Keel
did not render Murdock's second sentence illegal. Murdock II, 309 Kan. at 593.
The issue in this case is whether the Murdock I rule—that pre-1993 out-of-state
convictions had to be scored as nonperson offenses for criminal history purposes—was in
effect when Johnson was sentenced because the Murdock I holding followed from the
2010 Williams decision.
There is no question that Williams was law when Johnson was sentenced. But
while the Murdock I holding may have followed from Williams, it was a leap that no
appellate court made in the four years between Williams and Murdock I. It was a leap too
far, which the Supreme Court quickly recognized. Williams did not involve the
classification of a pre-1993 conviction. Vandervort did involve the classification of a pre-
1993 conviction.
Another panel of this court analyzed this same issue in State v. Adams, 58 Kan.
App. 2d 933, 476 P.3d 796 (2020), rev. denied 312 Kan. 893 (2021). The Adams panel
reasoned that Murdock I was a change in the law and did not apply to Adams' sentence
that was final after Williams but before Murdock I. Adams, 58 Kan. App. 2d at 945-46.
"Williams clearly applied to out-of-state offenses committed after the enactment of the
KSGA. However, between the time Williams was decided—December 10, 2010—and the
date Adams' direct appeal mandate was issued—September 5, 2013—no Kansas
appellate court had applied Williams' holding to preKSGA out-of-state convictions. See
Murdock I, 299 Kan. at 316; State v. Mitchell, No. 104,833, 2012 WL 1649831, at *7
(Kan. App. 2012) (unpublished opinion); State v. Mims, No. 103,044, 2011 WL 4563068,
at *5 (Kan. App. 2011) (unpublished opinion); State v. McKinney, No. 102,906, 2010 WL
5185779, at *1 (Kan. App. 2010) (unpublished opinion). Accordingly, the relief Adams
now seeks would not have been available to him during the pendency of his direct appeal
based on then-existing caselaw applying Williams." Adams, 58 Kan. App. 2d at 942.
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Before Johnson's sentence was final, no appellate court decision applied Williams
in the manner the Murdock I court did. The Murdock I holding was not the law in effect
when Johnson was sentenced. Johnson is entitled to no relief.
Affirmed.
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