State v. Gibson

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NOT DESIGNATED FOR PUBLICATION

No. 113,544

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BARNEY A. GIBSON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed May 27, 2016.
Sentence vacated and case remanded with directions.

Joanna Labastida, 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 HILL, P.J, STANDRIDGE and ATCHESON, JJ.

Per Curiam: Barney A. Gibson appeals the district court's decision to deny his
motion to correct an illegal sentence. Specifically, Gibson argues the district court erred
by over-classifying his 1973 juvenile adjudication for burglary and his 1981 burglary
conviction as person felonies for criminal history purposes, which resulted in an illegal
sentence. Gibson claims he is entitled to relief under 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), as applied by our state in State v. Dickey,
301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey II).
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The State argues this court should not reach the merits of whether Gibson's
sentence is illegal because the issue is procedurally barred by the doctrines of waiver and
res judicata and because the holding in Dickey II should not be retroactively applied in
this case. Finding no legal bar to our review, we hold that Gibson's sentence is illegal
under Dickey II, and therefore vacate the sentence imposed and remand the matter to the
district court for resentencing.

FACTS

Gibson's 162-month prison sentence resulted from his December 2007 no-contest
plea to a reduced charge of aggravated battery, a severity level 4 felony. The sentence
imposed represents the standard presumptive sentence under the Kansas Sentencing
Guidelines Act (KSGA) based on Gibson's criminal history score of A, which was
calculated by scoring the following as person felonies: Gibson's 1973 juvenile
adjudication for burglary, his 1981 burglary conviction, and his 1989 aggravated robbery
conviction.

In 2014, a panel of this court issued State v. Dickey, 50 Kan. App. 2d 468, 329
P.3d 1230 (2014), aff'd 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I). In Dickey I, we
held judicial factfinding at sentencing that goes beyond the existence of a prior
conviction or the statutory elements constituting the prior conviction violates a
defendant's right under the Sixth Amendment to the United States Constitution based on
the holdings in Descamps and Apprendi. 50 Kan. App. 2d at 488-90. While Dickey I was
pending before our Supreme Court, Gibson filed a motion to correct an illegal sentence.
In this motion, Gibson argued the sentencing court erred by over-classifying his pre-
KSGA burglary adjudication and adult burglary conviction as person felonies for
criminal history purposes, which resulted in an illegal sentence under Descamps,
Apprendi, and Dickey I. The district court summarily denied Gibson's motion. Gibson
appealed. The Supreme Court subsequently affirmed this court's holding in Dickey II.
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ANALYSIS

Gibson claims the district court erroneously denied his motion to correct an illegal
sentence. "The court may correct an illegal sentence at any time." K.S.A. 22-3504(1).
Whether a sentence is illegal is a question of law over which an appellate court has
unlimited review. State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015).

Our Supreme Court has defined "illegal sentence" under K.S.A. 22-3504 as:

"'(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.'" Moncla, 301 Kan. at 551.

Gibson challenges his sentence based on the second definition of a K.S.A. 22-
3504 illegal sentence as defined by our Supreme Court: his sentence does not conform to
the applicable statutory provision in terms of the punishment authorized. See Moncla,
301 Kan. at 551. Specifically, Gibson argues the burglary statute upon which his pre-
1993 burglary adjudication and burglary conviction was based did not include the
dwelling element required to classify the crimes as person felonies; thus, the district court
was constitutionally prohibited from classifying them as person felonies for criminal
history purposes. Gibson claims the district court's misclassification in this regard
resulted in a higher criminal history score which, in turn, caused the court to impose an
illegal sentence that did not conform to the applicable statutory provision in terms of the
punishment authorized.

The State does not challenge Gibson's motion on the merits. Rather, it contends
that Gibson is procedurally barred from obtaining relief on his claim because (a) Gibson
waived his claim by failing to object to his criminal history score at sentencing; (b)
Gibson's failure to raise his claim at sentencing or on direct appeal precludes the court
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from considering it now based on the doctrine of res judicata; and (c) Gibson is not
entitled to have the Supreme Court's holding in Dickey II retroactively applied to his case.
Given the State's arguments are all procedural in nature, we address each of them before
reaching the merits of Gibson's claim of illegal sentence.

1. Procedural issues

a. Waiver

The State contends Gibson waived the right to challenge his criminal history score
because he failed to object to it at sentencing or on direct appeal. But the Supreme Court
specifically addressed this contention in Dickey II and resolved it against the State's
position. In that case, the court held Dickey was not barred from challenging the
classification of his prior burglary adjudication even after he stipulated to his criminal
history score at sentencing:

"[A] defendant's stipulation or failure to object at sentencing will prevent the defendant
from later challenging the existence of convictions listed in his or her criminal history.
But a stipulation or lack of an objection regarding how those convictions should be
classified or counted as a matter of law for the purpose of determining the defendant's
criminal history score will not prevent a subsequent challenge under K.S.A. 22-3504(1)
of his or her prior convictions. [Citation omitted.]" Dickey II, 301 Kan. at 1032.

The same analysis applies here. Thus, Gibson has not waived his right to obtain
relief from an illegal sentence by failing to object to his criminal history score at
sentencing.




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b. Res judicata

Similarly, the doctrine of res judicata does not bar a motion to correct an illegal
sentence, which by statute may be brought at any time. The applicability of res judicata is
a question of law over which the appellate court has unlimited review. State v. Robertson,
298 Kan. 342, 344, 312 P.3d 361 (2013).

The State correctly recites the general rule of res judicata, which requires a
defendant to raise all available issues on direct appeal. See State v. Neer, 247 Kan. 137,
140-41, 795 P.2d 362 (1990). However, our Supreme Court has recognized the statutory
exception for motions to correct illegal sentences, which the legislature expressly
provides may be brought "at any time." K.S.A. 22-3504(1); State v. Neal, 292 Kan. 625,
631, 258 P.3d 365 (2011). In Neal, the defendant filed a motion to correct an illegal
sentence 7 years after his direct appeal, claiming for the first time that his prior
misdemeanor convictions were improperly aggregated into a single person felony in
determining his criminal history score. The court held that because a motion to correct an
illegal sentence may be filed at any time, the motion was not barred by res judicata. 292
Kan. at 631; see also State v. Martin, No. 113,189, 2016 WL 852130, at *1, Syl. ¶ 5
(Kan. App. 2016) ("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 statutory directive in K.S.A. 22-3504[1] that courts may correct an
illegal sentence at any time.").

Based on the holding by our Supreme Court in Neal, the doctrine of res judicata
does not preclude Gibson from seeking relief from an illegal sentence.




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c. Retroactive application of the holding in Dickey II

The State argues Gibson's motion is procedurally barred because the Supreme
Court's holding in Dickey II may not be retroactively applied to the current case, which
was final when the Supreme Court's opinion in Dickey II was filed.

As a general rule, "when an appellate court decision changes the law, that change
acts prospectively and applies only to all cases, state or federal, that are pending on direct
review or not yet final on the date of the appellate court decision." State v. Mitchell, 297
Kan. 118, Syl. ¶ 3, 298 P.3d 349 (2013). However, the court's holding in Dickey II is not
a "change in the law" under that analysis but rather an application of the constitutional
rule announced in Apprendi and clarified by Descamps. See Dickey II, 301 Kan. at 1021
("[C]lassifying Dickey's prior burglary adjudication as a person felony violates his
constitutional rights as described under Descamps and Apprendi."); Martin, 2016 WL
852130, at *8 ("Descamps provided a means by which to determine whether certain
sentencing determinations violated Apprendi, and Dickey [II] applied that framework to
Kansas criminal history determinations."). Accordingly, the date Apprendi was decided is
the relevant date for purposes of the retroactivity analysis. State v. Gould, 271 Kan. 394,
414, 23 P.3d 801 (2001). In Gould, the court indicated that all post-Apprendi cases must
comply with the constitutional rule announced in that case:

"Our holding on the constitutionality of upward departures under the KSGA has
no retroactive application to cases final as of June 26, 2000, the date Apprendi was
decided. However, the new constitutional sentencing rule established by Apprendi must
be applied here and in all cases pending on direct appeal or which are not yet final or
which arose after June 26, 2000. [Citation omitted.]" (Emphasis added.) Gould, 271 Kan.
at 414.

Gibson's claim seeking relief from an illegal sentence in this case arose well after
Apprendi; therefore, applying the Apprendi constitutional analysis set forth in Dickey II is
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not an improperly retroactive application of that law. Cf. Whisler v. State, 272 Kan. 864,
36 P.3d 290 (2001), cert. denied 535 U.S. 1066 (2002) (direct appeal final prior to
Apprendi decision, so Apprendi was not retroactively applied). Our finding in this regard
corresponds with this court's recent finding in Martin:

"[W]e find that retroactivity analysis is not applicable when it is determined by a court
that a constitutional error affects the defendant's criminal history score resulting in an
illegal sentence. The legislative directive in K.S.A. 22-3504(1) allows courts to correct an
illegal sentence at any time. Thus, we conclude that a claim under Dickey [II] may be
brought by a defendant in a motion to correct illegal sentence even when the time for
direct appeal has passed and the defendant's sentence is final." 2016 WL 852130, at *7.

As the court did in Martin, we conclude Gibson is not procedurally barred from
obtaining relief from an illegal sentence based on the fact that Gibson's case was final
when the Supreme Court's opinion in Dickey II was filed.

2. Illegal sentence

Finding no procedural bar, we now address the merits of Gibson's claim of an
illegal sentence based on the sentencing court's erroneous classification of his 1973
juvenile adjudication for burglary and his 1981 burglary conviction as person felonies in
violation of his constitutional rights under Descamps, 133 S. Ct. at 2281-87 (sentencing
judge violates Sixth Amendment by increasing criminal sentence based on facts about
prior burglary that were not proven to jury beyond reasonable doubt); Apprendi, 530 U.S.
at 490 ("Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt."); and as applied by our Supreme Court in Dickey II. The
State does not dispute that if Dickey II applies, Gibson's sentence is illegal.

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Dickey II presented almost identical facts to those presented here. In that case,
Dickey pled guilty to felony theft. At sentencing, his PSI report listed a 1992 juvenile
adjudication for burglary, which the sentencing court classified as a person felony.
Dickey did not object to his criminal history score or PSI report at sentencing. On appeal,
he challenged the classification of the prior adjudication as a person felony as a violation
of his Sixth Amendment rights established by the United States Supreme Court in
Descamps and Apprendi. The court found that the 1992 burglary statute under which
Dickey had previously been adjudicated did not require evidence that the burglarized
structure was a dwelling. Dickey II, 301 Kan. at 1039. The court noted that the distinction
between person and nonperson crimes did not exist when Dickey was adjudicated but
after the KSGA was enacted in 1993, a burglary had to be of a "dwelling" in order to be
classified a person felony. 301 Kan. at 1039; see K.S.A. 2015 Supp. 21-6811(d).

The Dickey II court ultimately held the sentencing court was constitutionally
prohibited from making a factual determination that the prior burglary adjudication
involved a dwelling. The court's improper determination in that regard necessarily
resulted in misclassification of the prior adjudication as a person offense. This, in turn,
increased Dickey's criminal history score and resulted in an illegal sentence that did not
comply with the applicable statutory provision regarding the term of punishment
authorized. Dickey II, 301 Kan. at 1020-21.

Like the facts in Dickey II, the burglary statute in effect at the time Gibson
committed both his 1973 and his 1981 burglaries did not contain the dwelling element
required to classify the crime as a person felony. Under the legal principles set forth in
Dickey II, then, we conclude the sentencing court violated Gibson's constitutional right
by finding the 1973 and 1981 burglaries involved a dwelling. As a result, the sentencing
court erroneously misclassified those prior burglaries as person felonies for purposes of
calculating Gibson's criminal history score, which resulted in an illegal sentence that did
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not comply with the applicable statutory provision regarding the term of punishment
authorized.

Based on the discussion above, we vacate the sentence imposed and remand the
matter to the district court with directions to reclassify the 1973 and the 1981 burglaries
as nonperson offenses, recalculate Gibson's criminal history score based on
reclassification, and then resentence Gibson based on that recalculated criminal history
score.