State v. Antalek

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NOT DESIGNATED FOR PUBLICATION

No. 114,033

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TERRY L. ANTALEK,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed July 29, 2016.
Affirmed.

Carl Maughan, of Maughan Law Group, of Wichita, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, Derek Schmidt,
attorney general, for appellee.

Before LEBEN, P.J., STANDRIDGE and ARNOLD-BURGER, JJ.

Per Curiam: Terry L. Antalek was convicted of attempted first-degree murder,
aggravated assault, and two counts of aggravated criminal sodomy in 2009. His criminal
history score was calculated as B based in part on two pre-1993 Kansas convictions that
were classified as person felonies. In 2014, Antalek filed motions to correct an illegal
sentence, challenging the classification of his prior convictions as person felonies. The
motions were summarily denied. Antalek now appeals.

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Because we find that the court did not err in classifying his prior convictions as
person felonies and summary disposition of his motions was appropriate, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Antalek was convicted by a jury of attempted first-degree murder, aggravated
assault, and two counts of aggravated criminal sodomy in 2009. State v. Antalek, No.
104,494, 2012 WL 2148162, at *3 (Kan. App. 2012) (unpublished opinion), rev. denied
296 Kan. 1131 (2013). He was sentenced to 765 months in prison. The sentence was
based in part on the district court's finding that Antalek's criminal history score was B due
to two pre-1993 convictions that were classified as person felonies.

In 2014, Antalek filed two motions to correct an illegal sentence with the district
court arguing that his pre-1993 convictions should have been scored as nonperson
felonies, one pursuant to State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified
by Supreme Court order September 19, 2014, overruled by State v. Keel, 302 Kan. 560,
357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016), and one pursuant to State v.
Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). Both motions were denied without a
hearing. Antalek now appeals the district court's denial of his motions.

ANALYSIS

The district court did not err when it classified two of Antalek's prior convictions
as person felonies.

Antalek contends that the district court erred when it denied his motions to correct
an illegal sentence because his criminal history score was improperly calculated and
resulted in the imposition of an illegal sentence. Because K.S.A. 22-3504(1) grants courts
the authority to correct illegal sentences at any time, it is not necessary for a defendant to
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object at sentencing to preserve the issue for appeal, and res judicata will not bar
consideration of the issue despite the fact that it could have been raised on direct appeal.
See Dickey, 301 Kan. at 1027 (holding that a defendant does not have to object to his/her
criminal history score at sentencing in order to later challenge it); State v. Taylor, 299
Kan. 5, 6-8, 319 P.3d 1256 (2014) (considering the merits of Taylor's motion to correct
an illegal sentence despite the fact that he had previously brought a direct appeal).

A sentence is illegal if: (1) the sentencing court lacked jurisdiction to impose it;
(2) the sentence "does not conform to the applicable statutory provision, either in
character or the term of authorized punishment;" or (3) the sentence "is ambiguous with
respect to the time and manner in which it is to be served." Taylor, 299 Kan. at 8. Kansas
courts narrowly construe K.S.A. 22-3504 so that only rarely will sentences be found
illegal. See State v. Edwards, 281 Kan. 1334, 1336, 135 P.3d 1251 (2006). Whether a
sentence is illegal is a question of law that this court reviews de novo. Taylor, 299 Kan.
at 8. To the extent that the arguments Antalek makes require this court to engage in
statutory interpretation, such review is also unlimited. State v. Eddy, 299 Kan. 29, 32, 321
P.3d 12 (2015).

Antalek sets forth three reasons the district court erred when it scored his two
pre-1993 in-state convictions (one in 1980 for aggravated burglary and one in 1986 for
rape) as person felonies; each will be considered in turn.

Dickey does not apply in the case of a pre-1993 conviction for aggravated
burglary.

First, Antalek argues that Dickey, 301 Kan. 1018, controls the outcome here in
regards to his aggravated burglary conviction. In Dickey, the appellant contested the
classification of a 1992 in-state juvenile adjudication for burglary as a person felony. At
the time of Dickey's adjudication, the burglary statute in effect did not delineate between
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situations in which burglary would qualify as a person felony and those in which it would
qualify as a nonperson felony. Additionally, the statute did not distinguish between
dwellings and other structures—the distinction that was the basis for classifying a
burglary as a person or nonperson felony when the KSGA was amended in 1993. As a
result, it was impossible to tell whether Dickey had committed a burglary that would
qualify as a person-felony without engaging in fact-finding. The Dickey court concluded
that the adjudication had to be scored as a nonperson felony because the judicial fact-
finding that would have been necessary to score it otherwise was constitutionally
prohibited by Descamps v. United States, 570 U.S. __, 133 S. Ct. 2276, 2288-89, 186 L.
Ed. 2d 438 (2013). Dickey, 301 Kan. at 1039.

But this case is distinguishable from Dickey in one crucial way: Antalek's
pre-1993 conviction was for aggravated burglary rather than burglary. The statute under
which Antalek was convicted in 1980 was K.S.A. 21-3716 (Weeks), which covered
burglary of a building or structure "in which there is some human being." Thus, no
additional judicial fact-finding was needed, and Dickey is inapplicable. See also State v.
Loggins, No. 113,640, 2016 WL 368111 (Kan. App. 2016) (unpublished opinion)
(holding Dickey does not apply to aggravated burglary convictions); State v. Kirk, No.
113,542, 2015 WL 7694132 (Kan. App. 2015) (unpublished opinion) (same), petition for
rev. filed December 16, 2015.

Murdock does not apply here.

Next, Antalek argues that Murdock applies and prevents the district court from
classifying any pre-1993 convictions, either in or out-of-state, as person felonies.
Accordingly, he contends that his pre-1993 aggravated burglary conviction and his
pre-1993 rape conviction must be treated as nonperson felonies.

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In Murdock, our Supreme Court considered a challenge to a district court's
classification of two pre-1993 out-of-state convictions as person felonies. The Supreme
Court reached its result in Murdock by extending the holding of State v. Williams, 291
Kan. 554, 560, 244 P.3d 667 (2010), which established the rule that, for the purpose of
scoring them, prior out-of-state convictions should be compared to Kansas
crimes/statutes in effect on the date the prior crime was committed. Murdock considered
the impact of the Williams holding on the system of categorizing crimes as person or
nonperson felonies for the purpose of calculating a defendant's criminal history score.
299 Kan. at 317-19. The court in Murdock held: "Murdock's two prior out-of-state
convictions must be scored as nonperson offenses under K.S.A. 21-4710(d)(8) following
our controlling Williams precedent. We recognize this rule results in the classification of
all out-of-state pre-1993 crimes as nonperson felonies." 299 Kan. at 319.

Even while Williams and Murdock controlled the way in which district courts
classified prior out-of-state convictions, this court repeatedly held that pre-1993 in-state
convictions should be classified as person or nonperson crimes "for criminal history
purposes by comparing the offenses to current guidelines offenses." State v. Waggoner,
51 Kan. App. 2d 144, 153, 343 P.3d 530 (2015), rev. denied 303 Kan. ___ (December 29,
2015); see also State v. Mims, No. 103,044, 2011 WL 4563068, at *5-6 (Kan. App. 2011)
(unpublished opinion), rev. denied 294 Kan. 946 (2012); State v. Boster, No. 101,009,
2009 WL 3738490, at *4-5 (Kan. App. 2009) (unpublished opinion), rev. denied 290
Kan. 1096 (2010). So, contrary to Antalek's contention, the law has never required all
pre-1993, in-state convictions to be categorized as nonperson felonies for the purpose of
calculating a defendant's criminal history score. In fact, in 2015, the Kansas Supreme
Court overruled its holding in Murdock, and returned to the same rule for both in-state
and out-of-state convictions, the same rule that existed at the time of Antalek's current
convictions. State v. Keel, 302 Kan. 560, Syl. ¶ 8, 357 P.3d 251 (2015), cert. denied 136
S. Ct. 865 (2016). Because we reach this conclusion independent from any recent
amendments to K.S.A. 2015 Supp. 21-6810(d) and (e), which were clearly a legislative
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reaction to the Murdock decision, there is no issue to examine under the Ex Post Facto
Clause of the United States Constitution as Antalek contends. See Keel, 302 Kan. at 591
(holding made irrespective of the amendments to the statute, thus avoiding any ex post
facto analysis).

Accordingly, the way to classify Antalek's prior in-state offenses as person or
nonperson crimes is as the same way Kansas courts have done it since the adoption of the
Kansas Sentencing Guidelines Act (KSGA).

"[A] pre-KSGA conviction and/or adjudication must be classified as either a person or
nonperson offense by comparing the criminal statute under which the prior offense arose
to the comparable post-KSGA criminal statute. The comparable post-KSGA Kansas
criminal statute is the one in effect at the time the current crime of conviction was
committed." Keel, 302 Kan. 560, Syl. ¶ 8.

The statute under which Antalek was convicted in 1980, K.S.A. 21-3716 (Weeks),
defined aggravated burglary as:

"[K]nowingly and without authority entering into or remaining within any building,
mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad
car or other means of conveyance of persons or property in which there is some human
being, with intent to commit a felony or theft therein."

The elements of the statute were the same in 2007 when Antalek committed the crimes of
conviction in this case.

"Aggravated burglary is knowingly and without authority entering into or
remaining within any building, manufactured home, mobile home, tent or other structure,
or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of
persons or property in which there is a human being, with intent to commit a felony, theft
or sexual battery therein.
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"Aggravated burglary is a severity level 5, person felony." K.S.A. 21-3716.

Crucially, all of the alternative means of committing aggravated burglary under
the version of the statute in effect in 2007 would have resulted in classifying the
conviction as a person felony. Because it was clear from the face of the statutes that a
1980 aggravated burglary and a 2007 aggravated burglary were comparable offenses, the
district court in this case was able to easily and properly determine that Antalek's prior
aggravated burglary conviction should be classified as a person felony.

Likewise, the statute defining rape in 1986 contained the same elements that were
contained in the rape statute of 2007. Compare K.S.A. 1986 Supp. 21-3502 and K.S.A.
21-3502. So again, because it was clear from the face of the statutes the offenses were
comparable, the district court was able to easily and properly determine that Antalek's
prior rape conviction should be classified as a person felony without any additional fact
finding.

Use of a defendant's criminal history to calculate his or her criminal history score
does not run afoul of the United States Constitution.

Finally, Antalek argues that the district court was prevented from making a finding
that his prior convictions constituted person crimes for the purpose of calculating his
criminal history score because such a finding increased his sentence without requiring the
State to prove his criminal history to a jury in violation of Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). As was made clear in Dickey, the
constitutional protections described in Apprendi are implicated when a district court, for
purposes of enhancing a defendant's sentence for a current conviction, makes findings of
fact at sentencing that go beyond merely finding the existence of a prior conviction or the
statutory elements that made up the prior conviction. Dickey, 301 Kan. 1018, Syl. ¶ 7.
However, once it is established, our Supreme Court has made clear that using a
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defendant's criminal history to calculate the defendant's sentence does not violate due
process under Apprendi. State v. Williams, 299 Kan. 911, 941, 329 P.3d 400 (2014)
(reaffirming State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 [2002]). Absent some
indication the Kansas Supreme Court is departing from its previous position, the Court of
Appeals is duty bound to follow the Supreme Court's precedent. State v. Belone, 51 Kan.
App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. ___ (2015).

The district court did not err when it summarily denied Antalek's motion to correct
an illegal sentence without him being present.

Antalek finally argues that the district court erred when it held a hearing on his
motions to correct an illegal sentence without him present and asks this court to remand
for a rehearing. He relies on KS.A. 22-3504(1) which provides:

"The court may correct an illegal sentence at any time. The defendant shall
receive full credit for time spent in custody under the sentence prior to correction. The
defendant shall have a right to a hearing, after reasonable notice to be fixed by the court,
to be personally present and to have the assistance of counsel in any proceeding for the
correction of an illegal sentence." (Emphasis added.)

It is not clear either from appellant's brief or from the record that there was
actually a hearing on Antalek's motions. While Antalek contends in his analysis section
that a hearing was held, there is no cite to the record to verify this assertion. In his facts
section, Antalek makes reference to the district court's denial of his motions on January
12, 2015, and cites to the record. However, there is no order at the page cited. There is an
order, filed January 12, 2015, denying Antalek's motions elsewhere in the record;
however, the order denies Antalek's motions "without hearing." Antalek does not dispute
that district courts may summarily deny motions to correct illegal sentences if sufficient
allegations are not made to warrant a hearing. See State v. Duke, 263 Kan. 193, 196, 946
P.2d 1375 (1997) ("K.S.A. 22-3504(1) does not eliminate a district court's duty to
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preliminarily examine a motion to correct an allegedly illegal sentence to determine if
substantial issues of law or fact are raised. If no such issues are found to have been
raised, the motion may be summarily dismissed.").

If there was indeed a hearing held on his motions to correct an illegal sentence at
which Antalek was not in attendance, Antalek has failed in his duty to make that fact
apparent. See State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013) (defendants
claiming error bear the burden of designating a record that affirmatively shows such
error). Because it appears that Antalek's motions to correct an illegal sentence were
summarily denied and Antalek has failed to cite to evidence in the record to the contrary,
this court presumes the actions of the district court summarily denying the motion were
proper. See Bridges, 297 Kan. at 1001. Antalek failed to raise any substantial issue of law
or fact justifying a hearing, therefore the district court did not err in failing to provide one
and allow him to be present at it.

Affirmed.