State v. Hankins

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NOT DESIGNATED FOR PUBLICATION

No. 113,670

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GUS HANKINS, JR.,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN KISNER, JR., judge. Opinion filed May 13, 2016.
Sentence vacated and remanded.

Carl F.A. Maughan and Sean M.A. Hatfield, of Maughan Law Group LC, of Wichita, for
appellant.

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

Before MCANANY, P.J., PIERRON and SCHROEDER, JJ.

Per Curiam: In this appeal the defendant challenges his sentence on the grounds
that the sentencing court miscalculated his criminal history score which resulted in the
court imposing an illegal sentence. We agree and vacate the defendant's sentence and
remand for a new sentencing hearing.

On June 25, 2010, Gus Hankins, Jr., pled guilty to aggravated burglary and no
contest to attempted burglary, six counts of burglary, and six counts of theft. The
presentence investigation (PSI) report disclosed that Hankins' criminal history included
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eight person felony convictions or juvenile adjudications: four pre-Kansas Sentencing
Guidelines Act (KSGA) juvenile burglary adjudications, three pre-KSGA burglary
convictions, and one aggravated burglary conviction. Based on these convictions and
adjudications, the PSI report showed Hankins' criminal history score was A.

At the August 13, 2010, sentencing hearing Hankins did not object to his criminal
history score. The district court sentenced him to a controlling prison term of 122 months,
with 24 months' postrelease supervision, but granted probation for 36 months. Hankins
did not appeal his sentence.

In October 2012, the district court revoked Hankins' probation and imposed his
underlying prison sentence. On appeal this court affirmed. State v. Hankins, No. 111,890,
2015 WL 4486957 (Kan. App. 2015) (unpublished opinion), rev. denied August 7, 2015.

In May and October 2014, Hankins made separate motions to correct his claimed
illegal sentence based initially 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), and then on State v.
Williams, 291 Kan. 554, 244 P.3d 667 (2010).

In November 2014 Hankins filed a third motion to correct an illegal sentence. He
argued his three pre-KSGA burglary convictions and four pre-KSGA juvenile burglary
adjudications should have been classified as nonperson offenses based on 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 his sentence was illegal because the misclassification of his burglary
convictions and adjudications resulted in an incorrect criminal history score.

On December 8, 2014, the district court held a hearing on the motions. The court
summarily denied relief based upon the conclusion that Murdock applied to out-of-state
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offenses only and did not apply retroactively. The district court also found Hankins'
motion based on Dickey was procedurally barred because he did not object to his criminal
history score at sentencing and did not otherwise challenge his criminal history score in a
direct appeal.

Hankins' appeal brings the matter before us. He has abandoned on appeal his first
two motions based on Murdock and Williams and now relies on Dickey which he raised
in his third motion.

Under K.S.A. 22-3504(1), a "court may correct an illegal sentence at any time."
Whether a sentence is illegal is a question of law over which we have unlimited review.
State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015).

A sentence is considered illegal if (1) it was imposed by a court without
jurisdiction, (2) it does not conform to the applicable statutory provision, either in
character or term of punishment authorized, or (3) it is ambiguous with regard to the time
and manner in which it is to be served. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365
(2011).

The State argues that Hankins cannot use a motion to correct an illegal sentence to
challenge the constitutionality of his sentence. But in State v. Martin, No. 113,189, 2016
WL 852130, at *7, this court concluded that "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." We hold with Martin that Hankins'
motion to correct an illegal sentence is the proper vehicle to contest his sentence.

Turning to Hankins' argument based on Dickey, the PSI report of the defendant in
Dickey showed a 1992 juvenile adjudication for burglary and scored it as a person felony.
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At sentencing, Dickey did not object to his criminal history score or the classification of
his prior burglary adjudication. The district court sentenced him to prison.

On appeal, Dickey challenged the classification of his prior burglary juvenile
adjudication as a person offense, arguing it violated his Sixth Amendment 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. 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.

Then, 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.

First, the court in Dickey dispelled the notion that a defendant is barred from
challenging the classification of a crime by stipulating to the criminal history score in the
PSI report at sentencing. Then, applying Apprendi and Descamps, the court found that the
burglary statute in effect when Dickey committed his prior burglary did not require
evidence that the burgled structure was a dwelling. Thus, classifying this prior juvenile
burglary adjudication as a person felony violated Dickey's rights described in Descamps
and Apprendi because determining whether the 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." Dickey, 301
Kan. at 1021.

Here, as in Dickey, the controlling statute at the time of Hankins' pre-KSGA
burglary convictions and juvenile adjudications did not require proof that the burglarized
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structure 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 (Ensley 1981). But at the time of Hankins' sentencing in our present case,
in order for the crime to be a person felony the burglary had to be of a dwelling. Thus, to
classify Hankins' prior burglary convictions and juvenile adjudications as person
offenses, the district court had to make the factual finding that the burglarized structure
was a dwelling. Such a determination required the court to go beyond merely finding the
existence of a prior burglary conviction or the statutory elements constituting burglary.
Accordingly, the classification of Hankins' burglary convictions and juvenile
adjudications as person offenses violates his constitutional rights as described in
Apprendi and Descamps.

But the State contends that Hankins' claim is procedurally barred by the doctrine
of res judicata. The applicability of res judicata is a question of law over which we have
unlimited review. State v. Kelly, 291 Kan. 868, 874, 248 P.3d 1282 (2011).

Generally, when a criminal defendant appeals from his conviction or sentence, the
doctrine of res judicata prevents the relitigation of issues that were raised or could have
been raised on appeal. State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083 (2014).
Hankins did not file a direct appeal of his sentence. Thus, relying on State v. Johnson,
269 Kan. 594, 601, 7 P.3d 294 (2000), the State contends that Hankins could have
contested his sentence in a direct appeal but did not, and so his current effort to do so is
now barred.

In Johnson, the defendant was not allowed to use a motion to correct an illegal
sentence to obtain relief on a claim that the State breached a plea agreement because the
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breach of a plea agreement does not render the defendant's sentence illegal. But here, the
miscalculation of Hankins' criminal history score led to an illegal sentence. See State v.
Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015) (a claim of misclassification of prior
convictions as person offenses raises a claim that the current sentence is illegal because it
does not comply with the statutory provision authorizing the term of punishment). Thus,
res judicata does not apply.

Finally, the State argues that Dickey should not be applied retroactively on
collateral review of Hankins' sentence. But in Martin, 2016 WL 852130, at *1, Syl. ¶ 7,
the court held that Kansas courts have jurisdiction to correct an illegal sentence at any
time. Once again, we adhere to the holding in Martin and conclude that the State's
argument against a retroactive application of Dickey does not hold sway. Besides, Dickey
was decided based on the constitutional principles announced in Apprendi and later
applied in Descamps. Hankins' rights under Apprendi were in place at the time of his
sentencing in the present case. See State v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001)
("[T]he new constitutional sentencing rule established by Apprendi" applied in all cases
arising after June 26, 2000.). Thus, the no-retroactivity argument again does not hold
sway.

We conclude that the district court erred in classifying Hankins' pre-KSGA
burglary convictions and juvenile adjudications as person offenses. Hankins' resulting
sentence is therefore illegal, and we must vacate it and remand the case for resentencing
in conformity with the principles announced in Apprendi, Descamps, and Dickey.
Hankins' remaining claim that he was denied his statutory right to be present at the
hearing on his motions is now moot.

Sentence vacated and remanded for resentencing.