State v. Hadley

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NOT DESIGNATED FOR PUBLICATION

No. 113,371

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES M. HADLEY,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed April 15,
2016. Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., MCANANY and POWELL, JJ.

Per Curiam: James M. Hadley appeals the district court's denial of his motion to
correct illegal sentence. He claims that (1) his 1983 Kansas burglary conviction should
have been scored as a nonperson felony for criminal history purposes; (2) the district
court erred when it found that the holding in 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, 589, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016), only
applied to out-of-state convictions; (3) the unequal treatment of defendants with in-state
criminal histories and defendants with out-of-state criminal histories for sentencing
purposes violates the Equal Protection Clause of the Fourteenth Amendment to the
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United States Constitution; and (4) the retroactive application of House Bill 2053, which
amended K.S.A. 2014 Supp. 21-6810 and K.S.A. 2014 Supp. 21-6811 and became
effective April 2, 2015, violates the Ex Post Facto Clause of Article I of the United States
Constitution. Because we find that Hadley's sentence was not illegal, we affirm the
district court's judgment.

On May 8, 2002, Hadley pled guilty to one count of voluntary manslaughter. The
presentence investigation (PSI) report showed 13 prior convictions, all in Kansas,
including four prior person felonies: a 2002 fleeing or attempting to elude a police
officer, a 2002 attempted aggravated battery, a 1988 aggravated assault, and a 1983
burglary. In addition, the PSI report showed three person misdemeanor convictions,
which were converted and scored as a person felony. The PSI report calculated Hadley's
criminal history score as A. On May 23, 2002, the district court sentenced Hadley to the
aggravated number in the presumptive sentencing range, 247 months' imprisonment.

On May 20, 2014, Hadley filed a motion to correct illegal sentence under K.S.A.
22-3504 based on our Supreme Court's holding in Murdock. Hadley argued that under
Murdock, the district court should resentence him after classifying his 1988 aggravated
assault conviction and his 1983 burglary conviction as nonperson felonies for criminal
history purposes. The district court summarily denied Hadley's motion, finding that
Murdock applied only to pre-1993 out-of-state convictions. Hadley timely appealed.

On appeal, Hadley first argues that his 1983 Kansas burglary conviction should
have been scored as a nonperson felony for criminal history purposes based on our
Supreme Court's holding in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015).
Hadley did not make this claim in district court for the obvious reason that our Supreme
Court's decision in Dickey was not filed until after Hadley's notice of appeal. In any
event, our Supreme Court specifically ruled in Dicky that because K.S.A. 22-3504(1)
authorizes a court to correct an illegal sentence at any time, the statute generally has been
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interpreted to mean that an illegal sentence issue may be considered for the first time on
appeal. 301 Kan. at 1034. "Whether a prior conviction or adjudication was properly
classified as a person or nonperson crime for criminal history purposes raises a question
of law subject to unlimited review. [Citations omitted.]" 301 Kan. at 1034.

Hadley contends that Dickey is dispositive with regard to his 1983 Kansas
burglary conviction, so we will briefly review our Supreme Court's decision in that case.
In Dickey, the defendant pled guilty to felony theft and his PSI report listed a 1992
Kansas juvenile adjudication for burglary, scored as a person felony. At sentencing, the
defendant did not object to his criminal history score as reflected in the PSI report. The
district court sentenced the defendant to a prison term, and he appealed.

On appeal, the defendant challenged the classification of his 1992 burglary
adjudication as a person felony for criminal history purposes, arguing that it violated his
Sixth Amendment rights as enunciated by the United States Supreme Court in Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v.
United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). In Apprendi, the
Court held: "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." 530 U.S. at 490. In Descamps, the Court determined
that Apprendi is implicated when a district court enhances a defendant's sentence based
on a finding that goes beyond the existence of a prior conviction or the statutory elements
that comprised the prior conviction. Descamps, 133 S. Ct. at 2288-89.

Our Supreme Court in Dickey determined that the defendant in that case was not
barred from challenging the classification of his burglary adjudication as a person felony
merely because he had stipulated to his criminal history score at sentencing. 301 Kan. at
1032. Applying Apprendi and Descamps, the Dickey court determined that the Kansas
burglary statute in effect when the defendant committed his prior burglary did not require
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evidence showing that the burglarized structure was a dwelling. 301 Kan. at 1039. The
court explained that because the burglary statute did not contain a dwelling element,
determination of whether the defendant's burglary involved a dwelling "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. As a result, the Dickey court 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.

Similar to the situation in Dickey, the statute under which Hadley was convicted of
burglary in 1983 did not include a dwelling element. At that time, burglary was defined
in Kansas as "knowingly 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, with intent to commit a
felony or theft therein." K.S.A. 21-3715 (Ensley 1981). Because the statute in effect at
the time Hadley committed the burglary for which he was convicted did not contain a
dwelling element, the district court's person classification necessarily required judicial
factfinding. As a result, the classification of Hadley's 1983 burglary conviction as a
person felony for criminal history purposes violated his constitutional rights as described
in Apprendi and Descamps and as applied by the Kansas Supreme Court in Dickey.

The State does not dispute the contention that if Hadley was being sentenced
today, his 1983 burglary conviction would be scored as a nonperson offense under the
holding in Dickey. Instead, the State argues in its brief that Hadley is procedurally barred
from bringing his claim because "Hadley's case was final when Dickey was decided in
[2015]. Therefore, Dickey's holding should not apply retroactively to Hadley's criminal
history." Hadley did not file a reply brief to respond to the State's retroactivity argument.
Nevertheless, when closely examined, the State's argument is not persuasive.

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"Generally, 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). The general rule prohibiting retroactive
application of an appellate court decision stems from our Supreme Court's adoption of the
United States Supreme Court's rules that in only two instances should new constitutional
rules be applied retroactively to cases on collateral review. As explained by our Supreme
Court in Drach v. Bruce, 281 Kan. 1058, 1072, 136 P.3d 390 (2006), cert. denied 549
U.S. 1278 (2007):

"'Under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334
(1989), a new rule of constitutional criminal procedure is not applied retroactively on
collateral review unless (1) it places certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to prosecute, or (2) it is a
watershed rule requiring the observance of those procedures that are implicit in the
concept of ordered liberty.' [Citation omitted.]"

Despite the general rule prohibiting retroactive application of an appellate court
decision, we are not convinced that Hadley is procedurally barred from bringing his claim
under Dickey even after his sentence has become final. In State v. Neal, 292 Kan. 625,
258 P.3d 365 (2011), the defendant filed a motion to correct illegal sentence under
K.S.A. 22-3504(1) and raised a constitutional challenge to his sentence, arguing that prior
uncounseled misdemeanor convictions could not be aggregated and included in
calculating his criminal history score. The defendant had completed his direct appeal, and
his sentence was final. The Supreme Court led off the opinion by discussing whether the
defendant's motion was procedurally barred, i.e., whether K.S.A. 22-3504(1) was a
proper vehicle for his claim. The court noted that it has defined an illegal sentence as one
imposed by a court without jurisdiction, a sentence which does not conform to the
statutory provision, either in character or in the term of the punishment authorized, or a
sentence which is ambiguous with regard to the time and manner in which it is to be
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served. 292 Kan. at 630. The court determined that if either the crime severity level or the
criminal history score is in error, a party can challenge a sentence as being illegal. 292
Kan. at 631. The court went on to conclude:

"Here, Neal's challenge to his criminal history score is necessarily a challenge to
his sentence that the history score helped produce. If the history score is incorrect, it
follows that his resulting sentence cannot conform with the statutory provision in the
term of the punishment authorized [citation omitted], and, consequently, is an illegal
sentence. Accordingly, K.S.A. 22-3504 is the proper vehicle for his claim. [Citation
omitted.]" 292 Kan. at 631.

Generally, a defendant may not file a motion to correct an illegal sentence based
on constitutional challenges to his or her sentence. See State v. Moncla, 301 Kan. 549,
553-54, 343 P.3d 1161 (2015). But when a constitutional challenge results in the
determination that the defendant's criminal history score is incorrect, the resulting
sentence does not conform to the statutory provision in the term of the punishment
authorized and, consequently, is an illegal sentence. Neal, 292 Kan. at 631; see also State
v. Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015) (stating the claim of misclassification
of prior convictions as person offenses "necessarily raise[s] a claim that the current
sentence is illegal because it does not comply with the applicable statutory provision
regarding the term of punishment authorized"). Under K.S.A. 22-3504(1), Kansas courts
have jurisdiction to correct an illegal sentence at any time. See State v. Kelly, 298 Kan.
965, Syl. ¶ 5, 318 P.3d 987 (2014).

Based on Neal, 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. We conclude that a claim 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 State v. Martin, 52 Kan. App. 2d ___, Syl. ¶ 8, ___
P.3d ___ (No. 113,189, filed March 4, 2016).
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Although we could end our analysis here, we also point out that the United States
Supreme Court's decision in Apprendi was in place before Hadley's sentencing in 2002.
As a result, the rationale in Apprendi should apply to the calculation of Hadley's criminal
history score. In Dickey, our Supreme Court explicitly held: "[C]lassifying Dickey's prior
burglary adjudication as a person felony violates his constitutional rights as described
under Descamps and Apprendi." 301 Kan. at 1021. In its analysis of those constitutional
rights, the court began by examining Apprendi, indicating that Apprendi was the basis for
the holding in Dickey. 301 Kan. at 1036-37. Descamps provided a means by which to
determine whether certain sentencing determinations violated Apprendi, and Dickey
applied that framework to Kansas criminal history determinations. 301 Kan. at 1036-40.

Because both Descamps and Dickey are applications of Apprendi and Hadley's
current Kansas case arose after Apprendi was decided, applying Dickey would not require
retroactive application of the caselaw identifying the constitutional rights at stake. See
State v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001) ("[T]he 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."). Therefore,
even if this court were to consider Hadley's challenge under the general principle that
new constitutional rules cannot be retroactively applied to cases on collateral review, that
principle would not bar Hadley's claim.

For the reasons we have just discussed, we conclude that Hadley is not
procedurally barred from challenging the legality of his sentence under Dickey. But as the
State points out in its brief, "whether or not the 1983 Burglary is counted in [Hadley's]
criminal history or not, he is still in category 'A' on his criminal history score and the
sentence imposed was legal. A legal sentence should not be disturbed on appeal." The
State is correct. Even discounting the 1983 burglary, Hadley's criminal history contains
three person felonies: the 2002 fleeing or attempting to elude a police officer, the 2002
attempted aggravated battery, and the 1988 aggravated assault. In addition, Hadley's
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criminal history includes three person misdemeanor convictions, which were converted
and scored as a person felony. So even if Hadley were to receive relief under Dickey for
his 1983 burglary conviction, his criminal history score remains an A. See K.S.A. 2015
Supp. 21-6809 (describing criminal history for category A).

Thus, Hadley's sentence will remain the same regardless of whether the 1983
burglary is classified as a person or nonperson offense. Stated differently, whether
Hadley's 1983 burglary is classified as a person or nonperson offense, the sentence
originally imposed by the district court conformed to the statutory provision in the term
of the punishment authorized. There is no need to vacate Hadley's sentence and remand
for resentencing, despite the fact that under Dickey, Hadley's 1983 burglary conviction
should have been classified as a nonperson felony. Hadley received a legal sentence, so
the district court's denial of his motion to correct illegal sentence was right, albeit for the
wrong reason. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015) (district
court's decision will be upheld even though it relied upon the wrong ground or assigned
erroneous reasons for its decision).

We will briefly address the remaining issues that Hadley has raised on appeal.
Hadley contends that the district court erred by finding that our Supreme Court's holding
in Murdock only applied to out-of-state convictions. Specifically, he claims that, under
Murdock, his 1988 Kansas conviction for aggravated assault should have been scored as a
nonperson offense. But this argument fails because 2 weeks prior to Hadley filing his
appellate brief, our Supreme Court overruled Murdock. See Keel, 302 Kan. 560, Syl. ¶ 9.
In Keel, our Supreme Court held that when designating a pre-Kansas Sentencing
Guidelines Act (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. 302 Kan. 560, Syl. ¶ 8. Aggravated
assault was scored as a person offense in Kansas at the time Hadley's current crime of
conviction was committed in 2002. See K.S.A. 21-3410 (Furse 1995). Thus, based on
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Keel, the district court did not err in classifying Hadley's 1988 Kansas conviction for
aggravated assault as a person offense for criminal history purposes.

Next, Hadley argues that the unequal treatment of defendants with in-state
criminal histories and defendants with out-of-state criminal histories for sentencing
purposes violates the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution. Hadley's argument is based on our Supreme Court's holding
in Murdock—especially after the court modified its opinion on September 19, 2014—
which arguably distinguished between in-state and out-of-state prior convictions in this
context. See 302 Kan. at 590-91. But again, Keel has resolved Hadley's claim. Since our
Supreme Court's decision in Keel, Kansas courts no longer apply a different analysis to
determine whether a pre-KSGA conviction was a person or nonperson offense for
criminal history purposes depending on whether the pre-KSGA conviction occurred in
Kansas or out of state. See 302 Kan. at 589-91.

Finally, Hadley argues that the retroactive application of House Bill 2053, which
amended K.S.A. 2014 Supp. 21-6810 and K.S.A. 2014 Supp. 21-6811 and became
effective April 2, 2015, violates the Ex Post Facto Clause of Article I of the United States
Constitution. Article 1, § 10, of the United States Constitution states: "No State shall . . .
pass any . . . ex post facto [l]aw." In order for a criminal law to be ex post facto, "'it must
be retrospective, that is it must apply to events occurring before its enactment, and it must
disadvantage the offender affected by it.' [Citations omitted.]" State v. Todd, 299 Kan.
263, 278, 323 P.3d 829 (2014).

Initially, we note that Hadley lacks standing to raise this argument. The traditional
two-part test to determine standing requires that ''''''a person . . . demonstrate that (1) he or
she suffered a cognizable injury and (2) that there is a causal connection between the
injury and the challenged conduct."' [Citation omitted.]" Kansas Bldg. Industry Workers
Comp. Fund v. State, 302 Kan. 656, 678, 359 P.3d 33 (2015). Here, the district court did
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not deny Hadley's motion to correct illegal sentence based on House Bill 2053, which
was not enacted until after his case was on appeal. Simply put, House Bill 2053 has never
been applied to Hadley, and he cannot demonstrate any injury from such an application.
As a result, Hadley has no standing to challenge House Bill 2053 in his appeal.

Even if Hadley had standing to challenge House Bill 2053 in this appeal, his
challenge would have no merit. House Bill 2053 was enacted by the Kansas Legislature
in 2015 as an attempt to address the statewide sentencing problems caused by our
Supreme Court's holding in Murdock. In Murdock, our Supreme Court noted that Kansas
did not begin classifying crimes as person or nonperson offenses until 1993 when the
KSGA was enacted. 299 Kan. 312, Syl. ¶ 4. The Murdock court held that when
calculating a defendant's criminal history that includes out-of-state convictions
committed prior to the enactment of the KSGA, the out-of-state convictions must be
classified as nonperson offenses. 299 Kan. 312, Syl. ¶ 5. In an attempt to address the
holding in Murdock, House Bill 2053 amended K.S.A. 2014 Supp. 21-6810(d)(2) and
became effective upon publication on April 2, 2015. As amended, the subsection states:

"[T]he following are applicable to determining an offender's criminal history
classification . . . (2) All prior adult felony convictions, including expungements, will be
considered and scored. Prior adult felony convictions for offenses that were committed
before July 1, 1993, shall be scored as a person or non-person crime using a comparable
offense under the Kansas criminal code in effect on the date the current crime of
conviction was committed[.]" Kan. H.B. 2053 sec. 1.

The legislature added subsection (e) stating: "The amendments made to this section by
this act are procedural in nature and shall be construed and applied retroactively." Kan.
H.B. 2053, sec. 1. The legislature made similar amendments to K.S.A. 21-6811 and
applied those amendments retroactively, as well. Kan. H.B. 2053, sec. 2.

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But as we have already discussed, our Supreme Court's holding in Murdock was
subsequently overruled in Keel. 302 Kan. 560, Syl. ¶ 9. In Keel, our Supreme Court
construed the statutory language in K.S.A. 2014 Supp. 21-6810 and K.S.A. 2014 Supp.
21-6811 prior to the amendments in House Bill 2053 and 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. 302 Kan. 560, Syl. ¶ 8. In other words, the
amendments in House Bill 2053 were consistent with our Supreme Court's holding in
Keel interpreting the statutory language prior to the amendments. Essentially, the
amendments in House Bill 2053 did not have the effect of changing the law as applied by
our Supreme Court in Keel.

In order for a criminal law to be ex post facto, it must "'"disadvantage the offender
affected by it."'" Todd, 299 Kan. at 278. Hadley cannot show he has been disadvantaged
by the enactment of House Bill 2053 because the determination of his criminal history
would be subject to the same rules even if the applicable statutes had not been amended
by House Bill 2053. Thus, even if Hadley had standing to raise the issue, his claim that
the retroactive application of House Bill 2053 violates the Ex Post Facto Clause of
Article I of the United States Constitution would fail.

In summary, although Hadley's 1983 burglary conviction was improperly
classified as a person felony in violation of his constitutional rights as explained in
Dickey, the erroneous classification did not render his sentence illegal because it did not
cause his sentence to fail to conform to the applicable statutory provision in the term of
the punishment authorized. Hadley's criminal history score was correct despite the
incorrect classification of this particular prior conviction, so his sentence was not illegal.
Thus, the district court's denial of Hadley's motion to correct illegal sentence was right,
albeit for the wrong reason. See Overman, 301 Kan. at 712.

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Affirmed.