State v. Ewing

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NOT DESIGNATED FOR PUBLICATION

No. 113,535

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT E. EWING, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed April 1, 2016.
Sentence vacated and case remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

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

Before ATCHESON, P.J., BRUNS, J., and WALKER, S.J.

Per Curiam: Robert E. Ewing, Jr., appeals from the district court's denial of his
motion to correct illegal sentence. Following the reasoning in State v. Dickey, 301 Kan.
1018, 350 P.3d 1054 (2015), writ of cert. filed September 17, 2015, we conclude that the
district court should have classified Ewing's 1993 juvenile adjudication for burglary as a
nonperson felony when calculating his criminal history score. Following the reasoning of
State v. Martin, 52 Kan. App. 2d ___, Syl. ¶ 8, No. 113,189, 2016 WL 852130 (2016),
we also find that a Dickey claim may be brought in a motion to correct illegal sentence at
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any time. Accordingly, we vacate his sentence and remand this case to the district court
for resentencing.

FACTS

On July 19, 2010, Ewing pled guilty to one count of theft and one count of
burglary for events that occurred in August 2007. A presentence investigation (PSI)
report placed Ewing in criminal history category B. The PSI report included in Ewing's
criminal history a 1993 juvenile adjudication for a burglary that he committed in 1992,
which was prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA). See
K.S.A. 21-4701 et seq.; L. 1992, ch. 239, secs. 1-304 (effective July 1, 1993). The report
scored the 1993 juvenile adjudication as a person felony. As such, Ewing's PSI reflected
a criminal history that included two person felonies, four nonperson felonies, and one
nonperson misdemeanor.

At the sentencing hearing held on September 30, 2010, Ewing did not object to his
criminal history score as set forth in the PSI. Although the district court imposed a
presumptive prison sentence of 125 months, it granted Ewing a dispositional departure
allowing him to serve 36 months of probation with community corrections. Subsequently,
in October 2011, the district court revoked Ewing's probation and ordered him to serve a
modified 114-month prison sentence. This court summarily affirmed the district court's
decision on direct appeal in State v. Ewing, No. 107,780, 2012 WL 5205736 (Kan. App.
2012) (unpublished opinion).

On August 19, 2014, Ewing filed a pro se motion under K.S.A. 22-3504(1),
arguing that his sentence was illegal in light of this court's holding in State v. Dickey, 50
Kan. App. 2d 468, 329 P.3d 1230 (2014), aff'd 301 Kan. 1018 (2015). Specifically, he
alleged that the district court violated his constitutional rights by classifying his 1993
juvenile adjudication for burglary as a person felony when calculating his criminal
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history score. On December 9, 2014, the district court denied Ewing's motion because he
failed to object to his criminal history at the time of sentencing and failed to challenge his
criminal history on direct appeal. Thereafter, on December 11, 2014, Ewing filed a notice
of appeal.

ANALYSIS

On appeal, Ewing initially contends that the district court erred in denying his
motion to correct an illegal sentence. In particular, Ewing argues that the Kansas
Supreme Court's decision in Dickey, 301 Kan. at 1021, requires that his 1993 juvenile
adjudication for burglary must be scored as a nonperson felony for criminal history
purposes given the statutory elements of the offense and the dictates of Descamps v.
United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We agree.

Whether a sentence is illegal is a question of law over which this court has
unlimited review. See State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015). Under
K.S.A. 22-3504(1), an illegal sentence is:

"'(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not
conform to the applicable statutory provision, either in character or the term of authorized
punishment; or (3) a sentence that is ambiguous with respect to the time and manner in
which it is to be served.' [Citations omitted.]" 301 Kan. at 551.

Similar to the present case, the defendant in Dickey pled guilty to felony theft, and
his PSI listed a 1992 juvenile adjudication for burglary that the district court scored as a
person felony. At sentencing, the defendant did not object to his criminal history score as
reflected in the PSI report. On appeal, the defendant challenged the classification of his
1992 burglary adjudication as a person felony, arguing that it violated his Sixth
Amendment rights as articulated by the United States Supreme Court in Apprendi and
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Descamps. Our Supreme Court concluded that the defendant was not barred from
challenging the classification of his burglary adjudication as a person felony because it
held that a stipulation or lack of an objection regarding how a prior conviction or
adjudication should be classified in determining a defendant's criminal history score does
not prevent a subsequent challenge under K.S.A. 22-3504(1). Dickey, 301 Kan. at 1032.

Furthermore, applying Apprendi and Descamps, the Dickey court determined that
the burglary statute in effect when the defendant committed his prior burglary did not
require evidence showing that the burglarized structure was a dwelling. 301 Kan. at 1039.
Our Supreme Court explained that because the burglary statute did not contain a dwelling
element, determining whether the defendant's burglary involved a dwelling at the
criminal history stage "would necessarily involve judicial factfinding that goes beyond
merely finding the existence of a prior conviction or the statutory elements constituting
that prior conviction." 301 Kan. at 1021. Thus, it concluded that "classifying [the
defendant's] prior burglary adjudication as a person felony violates his constitutional
rights as described under Descamps and Apprendi." Dickey, 301 Kan. at 1021.

Applying the same reasoning as used in Dickey, we conclude that scoring Ewing's
1993 juvenile adjudication for burglary as a person felony violates his constitutional
rights. Nevertheless, the State maintains that the motion to correct illegal sentence is
barred by the doctrine of res judicata. Moreover, the State contends that we should not
retroactively apply Dickey. Both of these issues, however, were addressed recently by
this court in Martin, and we find its rationale persuasive.

As indicated above, the Martin decision held that a constitutional violation under
Dickey may be brought in a motion to correct illegal sentence even when the time for
direct appeal has passed and the defendant's sentence is final. See 52 Kan. App. 2d __,
Syl. ¶¶ 7-8. Specifically, the Martin court recognized that the legislative directive in
K.S.A. 22-3504(1) that courts may correct an illegal sentence at any time supersedes the
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general rule prohibiting retroactive application of an appellate court decision. See 52
Kan. App. 2d __, Syl. ¶¶ 5, 8. Moreover, the court found in Martin that applying the
doctrine of res judicata to bar challenges of an illegal sentence merely because they could
have been brought in a direct appeal would undermine the clear legislative directive in
K.S.A. 22-3504(1). 52 Kan. App. 2d __, Syl. ¶ 5.

We, therefore, vacate Ewing's sentence and remand this case to the district court
for resentencing consistent with Dickey.

Sentence vacated and case remanded with directions.