State v. Garcia

1

NOT DESIGNATED FOR PUBLICATION

No. 113,541

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CARLOS GARCIA,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed November 20,
2015. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2014 Supp. 21-6820(g) and (h).

Before MALONE, C.J., GREEN and HILL, JJ.

Per Curiam: Carlos Garcia appeals the district court's denial of his motion to
correct an illegal sentence. We granted Garcia's motion for summary disposition in lieu
of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The
State has filed a response and requested that the district court's judgment be affirmed.

On January 29, 2013, Garcia was found guilty by a jury of one count of offender
registration violation. Garcia's presentence investigation report showed that he had one
pre-1993, out-of-state person felony conviction of assault with a dangerous weapon and
one pre-1993, out-of-state person misdemeanor conviction of battery. On March 14,
2013, the district court imposed a controlling sentence of 221 months' imprisonment with
a postrelease supervision term of 36 months. Garcia did not timely appeal his sentence.
2

On December 24, 2014, Garcia filed a motion to correct illegal sentence based on
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. ___, 357 P.3d 251 (2015).
Garcia's motion challenged the classification of only one prior conviction, that being his
person felony conviction of assault with a dangerous weapon on October 30, 1979.
Garcia argued that under the holding in Murdock, the challenged conviction must be
scored as a nonperson offense for criminal history purposes. The district court denied
Garcia's motion. Garcia timely appealed.

On appeal, Garcia argues that "his out-of-state pre-1993 person felony and
misdemeanor convictions must be reclassified as nonperson offenses." Presumably,
Garcia's argument covers his person felony conviction of assault with a dangerous
weapon and his person misdemeanor conviction of battery. Whether a prior conviction is
properly classified as a person or nonperson offense involves the interpretation of the
Kansas Sentencing Guidelines Act (KSGA). Interpretation of a statute is a question of
law over which appellate courts have unlimited review. Murdock, 299 Kan. at 314.

Our Supreme Court's holding in Murdock has been overruled in Keel. In Keel, our
Supreme Court held that when designating a pre-KSGA conviction as a person or
nonperson crime for criminal history purposes, the court must determine the classification
of the prior conviction as of the time the current crime of conviction was committed. 357
P.3d at 262. Assault with a dangerous weapon and battery were scored as person offenses
in Kansas at the time Garcia's current crime of offender registration violation was
committed in 2012. Based on Keel, the district court did not err in classifying Garcia's
pre-KSGA convictions of assault with a dangerous weapon and battery as person offenses
for criminal history purposes. Thus, the district court did not err in denying Garcia's
motion to correct an illegal sentence.

Affirmed.