State v. Hammitt

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NOT DESIGNATED FOR PUBLICATION

No. 113,489

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GARY L. HAMMITT,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed March 18,
2016. Sentence vacated and remanded.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

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

Before HILL, P.J., MCANANY and ARNOLD-BURGER, JJ.

Per Curiam: Gary L. Hammitt appeals the district court's denial of his motion to
correct an illegal sentence. He asserts that the district court erred in classifying his 1979
Kansas felony burglary conviction as a person offense based on State v. Dickey, 301 Kan.
1018, 350 P.3d 1054 (2015). He also claims that the district court erred in classifying his
1980 Kansas misdemeanor battery conviction as a person offense 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. 560, 357 P.3d 251 (2015), cert.
denied 136 S. Ct. 865 (2016).
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Hammitt's claimed illegal sentence arose following his 2009 convictions for two
second-degree murders, an aggravated battery, and a felony DUI. His criminal history
consisted of 33 prior convictions, including 1 adult person felony conviction and 3 adult
person misdemeanor convictions. The person misdemeanor convictions were aggregated
into one person felony pursuant to K.S.A. 21-4711(a). His criminal history included two
Kansas person convictions before the Kansas Sentencing Guidelines Act (KSGA) became
effective in 1993: a 1979 felony burglary conviction and a 1980 misdemeanor battery
conviction.

Based on a criminal history score of B, to which Hammitt did not object, the court
sentenced Hammitt to serve 460 months in prison and 12 months in the county jail to be
served consecutive to his prison term. The Kansas Supreme Court affirmed Hammitt's
sentence. State v. Hammitt, No. 102,562, 2010 WL 1881817 (Kan. 2010) (unpublished
opinion). He later moved to withdraw his pleas, but that motion was denied and later
affirmed on appeal to this court. State v. Hammitt, No. 107,496, 2013 WL 1729253 (Kan.
App. 2013) (unpublished opinion), rev. denied 297 Kan. 1250 (2013).

Hammitt then moved to correct an illegal sentence based on Murdock. He
followed with a second motion to correct an illegal sentence based on the holding in State
v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), aff'd 301 Kan. 1018, 350 P.3d
1054 (2015). He claimed in his motions that his 1979 burglary conviction and 1980
battery conviction should have been classified as nonperson offenses for criminal history
purposes.

The district court denied Hammitt's motions, finding that Murdock and Dickey did
not provide a basis for relief, that Hammitt had waived any challenge to his criminal
history score, and that Murdock was not applied retroactively to cases on collateral
review. This appeal followed.

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On appeal, Hammitt argues the district court erred in classifying his 1979 Kansas
felony burglary conviction as a person offense based on Dickey. He also argues the
district court erred in classifying his 1980 Kansas misdemeanor battery conviction as a
person offense based on Murdock. These arguments raise a question of law over which
we have unlimited review. State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015), cert.
denied 136 S. Ct. 865 (2016).

1979 Burglary Conviction

Hammitt contends that based upon our Supreme Court's holding in Dickey, the
classification of his 1979 burglary conviction as a person offense violated his Sixth
Amendment jury trial rights under 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 response, the State contends Hammitt's claim is
barred because he did not challenge his criminal history score in his direct appeal; or, in
the alternative, Dickey does not apply retroactively to Hammitt's collateral challenge of
his sentence.

In Dickey, the defendant pled guilty to felony theft. His criminal history included a
1992 juvenile adjudication for burglary. The district court treated this burglary as a
person felony and sentenced Dickey to a prison term. Dickey appealed, arguing that this
classification of his prior burglary conviction violated his jury trial rights under Apprendi
and Descamps.

In Apprendi, the Supreme Court of the United States held, "[o]ther 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 Supreme Court determined that the holding in
Apprendi applies when a district court enhances a defendant's sentence based on a finding
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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.

Applying Apprendi and Descamps, the court in Dickey determined the burglary
statute in effect when Dickey committed the 1992 burglary did not require proof that the
burglarized structure was a dwelling. Thus, determining whether Dickey'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. From this the 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 Dickey, the statute under which Hammitt was convicted in 1979 did not
include the element that the burglarized building was a dwelling. Burglary was defined at
the time 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 (Weeks 1974).

Since then, K.S.A. 21-3715 (now K.S.A. 2015 Supp. 21-5807), the statute in effect
at Hammitt's sentencing, defined burglary as:

"Knowingly and without authority entering into or remaining within any:
"(a) Building, manufactured home, mobile home, tent or other structure which is
a dwelling, with intent to commit a felony, theft or sexual battery therein;
"(b) building, manufactured home, mobile home, tent or other structure which is
not a dwelling, with intent to commit a felony, theft or sexual battery therein;
. . . .
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"Burglary as described in subsection (a) is a severity level 7, person felony.
Burglary as described in subsection (b) is a severity level 7, nonperson felony. . . ."
(Emphasis added.)

Because the burglary statute in effect at the time Hammitt committed the burglary
did not require the burglarized building to be a dwelling, classifying the crime as a person
offense required the court to go beyond merely finding the existence of the prior burglary
conviction or the statutory elements constituting burglary in order to find that the
burglarized structure was a dwelling. Accordingly, classifying Hammitt's 1979 burglary
conviction as a person felony violated his constitutional rights as described in Apprendi
and Descamps and as applied in Dickey.

Waiver

The State argues Hammitt waived the opportunity to challenge the classification of
his prior convictions when he did not raise the issue in his direct appeal. But K.S.A. 22-
3504(1) specifically authorizes a court to "correct an illegal sentence at any time." See
State v. Flores, 283 Kan. 380, 382-83, 153 P.3d 506 (2007). Moreover, the Kansas
Supreme Court has recognized that a criminal defendant may raise a challenge to an
illegal sentence on collateral review. State v. Neal, 292 Kan. 625, 631, 258 P.3d 365
(2011).

An illegal sentence is a sentence "'imposed by a court without jurisdiction, a
sentence which does not conform to the applicable statutory provision, either in
character or the term of the punishment authorized, or a sentence that is ambiguous with
respect to the time and manner in which it is to be served.' (Emphasis added.) [Citations
omitted.]" 292 Kan. at 630. Hammitt's sentence did not conform to the applicable
statutory provisions. See State v. Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015). If
Hammitt's criminal history score is incorrect, his sentence cannot conform to the
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applicable statutory provision in the term of punishment authorized. Hammitt has not
waived this claim.

Retroactivity of Dickey

Alternatively, the State contends Dickey should not be applied retroactively to
Hammitt's case. The State argues Hammitt is not entitled to relief under Dickey because
his direct appeal was already final when Dickey was issued.

Generally, determining whether a change in the law applies retroactively in
collateral proceedings involves a three-step process:

"'First, the court must determine whether the movant has properly raised the issue in his
or her collateral attack. Supreme Court Rule 183(c) limits the issues that may be raised in
a collateral attack. . . . Second, the court determines whether the case was final when the
new law was established. . . . If a case was final when the new law was established, the
general rule is that the new law will not be applied to cases on collateral attack. [Citation
omitted.] Third, if the case was final before the new law was established, the court must
determine whether any exception to the general rule against retroactive application
applies.'" Drach v. Bruce, 281 Kan. 1058, 1072, 136 P.3d 390 (2006), cert. denied 549
U.S. 1278 (2007) (quoting Gaudina v. State, 278 Kan. 103, 105, 92 P.3d 574 [2004]).

There is an exception to the general rule against retroactivity when the change in
the law (1) "places certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to prosecute, or (2) is a watershed rule
requiring the observance of those procedures that are implicit in the concept of
ordered liberty." Whisler v. State, 272 Kan. 864, Syl. ¶ 1, 36 P.3d 290 (2001), cert.
denied 535 U.S. 1066 (2002).

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Here, the first exception clearly does not apply. With respect to the second
exception, Dickey was not a watershed ruling. It did not create a new rule of
constitutional criminal procedure or otherwise establish a new rule of law. Instead, it
applied the constitutional rule of law already established in Apprendi. See Luarks, 302
Kan. at 977-78 (finding the classification of the defendant's 1981 burglary conviction was
prohibited by Descamps and Apprendi, as the Kansas Supreme Court applied those
decisions in Dickey).

The State relies on State v. Wilson, 31 Kan. App. 2d 728, 71 P.3d 1180, rev.
denied 276 Kan. 974 (2003). But Wilson does not control. Wilson involved a criminal
defendant's collateral challenge to his sentence following the Kansas Supreme Court's
decision in State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan.
1115 (2002). This court declined to apply Frazier retroactively. But Frazier pronounced
a new rule of law, and, therefore, the question presented in Wilson was whether the new
rule of law should be applied retroactively to cases on collateral review.

Moreover, whether Dickey applies retroactively is of no consequence here. Shortly
after Apprendi, the Kansas Supreme Court held "the new constitutional sentencing rule
established by Apprendi" applied in all cases arising after June 26, 2000. State v. Gould,
271 Kan. 394, 414, 23 P.3d 801 (2001); see Whisler, 272 Kan. at 879; Verge v. State, 50
Kan. App. 2d 591, 599, 335 P.3d 679 (2014), rev. denied 302 Kan. ___ (2015). Although
Hammitt relies on Dickey, his claim is more accurately evaluated under Apprendi. The
Dickey court did not recognize for the first time the constitutional right that prohibited the
district court from classifying his burglary conviction as a person felony. That right was
first recognized in Apprendi. The Dickey court merely applied Apprendi to circumstances
which are the same as the circumstances now before us. Because Hammitt's case arose in
2008, it is undisputed that Apprendi applies to Hammitt's motion to correct an illegal
sentence.

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Finally, no caselaw or statute limits a court reviewing a motion to correct an
illegal sentence to the law existing at the time of the defendant's sentence or the caselaw
established during the pendency of the defendant's direct appeal. Thus, current caselaw
can be applied to Hammitt's motion to correct an illegal sentence, allowing Dickey to be
applied here.

Based on this analysis, we conclude that the district court erred in classifying
Hammitt's 1979 felony burglary conviction as a person offense. His sentence, therefore,
is illegal and must be vacated, and the case must be remanded to the district court for
resentencing. On remand, the district court should classify Hammitt's burglary conviction
as a nonperson offense.

1980 Battery Conviction

Hammitt also challenges the classification of his 1980 Kansas misdemeanor
battery conviction. Based on Murdock, Hammitt contends his battery conviction should
have been classified as a nonperson offense. He also contends the retroactive application
of House Bill 2053 violates the Ex Post Facto Clause of the United States Constitution.

In Murdock, the Kansas Supreme Court held that out-of-state crimes committed
before the enactment of the KSGA in 1993 must be classified as nonperson offenses for
criminal history purposes. 299 Kan. 312, Syl. ¶ 5. But in State v. Waggoner, 51 Kan.
App. 2d 144, 155-56, 343 P.3d 530, rev. denied 303 Kan. ___ (2015), this court
determined that Murdock did not apply to in-state convictions.

Recently in Keel, the Kansas Supreme Court overruled Murdock. The Keel court
clarified that the classifications of in-state and out-of-state pre-KSGA convictions are to
be determined by looking to the statute criminalizing the prior offense (if in-state) or to
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the comparable offense statute (if out-of-state) in effect on the date the defendant
committed the current crime of conviction. 302 Kan. at 581.

At the time of Hammitt's crimes in 2008, battery was a person misdemeanor in
Kansas. See K.S.A. 21-3412(b). Based on Keel, the district court did not err in classifying
Hammitt's pre-KSGA battery conviction as a person offense. Thus, the district court's
aggregation of Hammitt's three person misdemeanors into a felony was appropriate.

Alternatively, Hammitt contends the retroactive application of House Bill 2053
violates the Ex Post Facto Clause of the United States Constitution. House Bill 2053
amended K.S.A. 2015 Supp. 21-6810, effective April 2, 2015. The statute now states:
"Prior misdemeanors for offenses that were committed before July 1, 1993, shall be
scored as a person or nonperson crime using a comparable offense under the Kansas
criminal code in effect on the date the current crime of conviction was committed."
K.S.A. 2015 Supp. 21-6810(d)(5). The amended statute also instructs: "The amendments
made to this section by this act are procedural in nature and shall be construed and
applied retroactively." K.S.A. 2015 Supp. 21-6810(e).

Hammitt argues that the retroactive application of K.S.A. 2015 Supp. 21-6810, as
amended, increases his sentence by altering the formula used to calculate the applicable
sentencing range. He claims the statute in effect at the time of his offense, as interpreted
by the Kansas Supreme Court in Murdock, required his pre-KSGA conviction to be
classified as a nonperson offense. He concludes that the retroactive alteration of the
method used to calculate the applicable sentencing range violates his rights under the Ex
Post Facto Clause.

But the Kansas Supreme Court overruled Murdock, and, based on Keel, the district
court properly classified Hammitt's battery conviction as a person offense. See Keel, 302
Kan. at 581.
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As a result, Hammitt's ex post facto claim is now moot. We are able to
independently decide the issue under Keel and do not need to retroactively apply K.S.A.
2015 Supp. 21-6810(d)(5). Moreover, the classification of Hammitt's battery conviction
based on the comparable 2008 offense complies with the Ex Post Facto Clause. See Keel,
302 Kan. at 589 ("[C]lassifying a prior conviction or juvenile adjudication based on the
classification in effect for the comparable offense when the current crime was committed
complies with the Ex Post Facto Clause of the United States Constitution.").

Sentence vacated and remanded for resentencing.