State v. Hopkins

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NOT DESIGNATED FOR PUBLICATION

No. 114,300

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WALTER T. HOPKINS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed September 9,
2016. Affirmed.

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

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J., HILL, J., and BURGESS, S.J.

Per Curiam: Walter T. Hopkins appeals the district court's summary denial of his
motion to correct his criminal history. Specifically, Hopkins argues that the district court
erred in classifying two prior 1990 aggravated burglary convictions as person felonies for
criminal history purposes which he claims resulted in an illegal sentence under Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and State v.
Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). He also argues that counsel should have
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been appointed and a hearing should have been set on the matter. Finding no legal error,
we affirm.

FACTS

On March 4, 2010, Hopkins pled guilty to three amended counts of robbery. A
presentence investigation report listed Hopkins' criminal history as B, due in part to two
1990 aggravated burglary convictions. Hopkins was granted a downward dispositional
departure and sentenced to a 36-month probation term with an underlying 184-month
prison sentence. The district court subsequently revoked Hopkins' probation and imposed
an 18-month prison term.

In January 2015, Hopkins filed a pro se motion to correct his criminal history
under State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel,
302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). On February 5,
2015, the district court summarily denied Hopkins' Murdock motion without a hearing or
appointment of counsel. Hopkins timely appealed. Our Supreme Court subsequently
issued its opinion in Dickey, on which Hopkins now relies in seeking relief on appeal.

ANALYSIS

Hopkins claims the district court erroneously denied his motion to correct criminal
history under Apprendi and Dickey. Under K.S.A. 22-3504(1), a "court may correct an
illegal sentence at any time." Our Supreme Court has defined "illegal sentence" under
K.S.A. 22-3504 to include "'a sentence that does not conform to the applicable statutory
provision, either in character or the term of authorized punishment.'" State v. Moncla, 301
Kan. 549, 551, 343 P.3d 1161 (2015).

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The State argues that this court should not reach the merits of whether Hopkins'
sentence is illegal because the issue is procedurally barred. If this court were to reach the
merits, the State argues Hopkins' reliance on the analysis in Dickey to support his claim
for relief is misguided because the offenses to be compared in this case are set forth in the
former and current aggravated burglary statutes, not the former and current burglary
statutes compared in Dickey. Finally, the State argues Hopkins was not entitled to a
hearing or assistance of counsel on his motion under K.S.A. 22-3504 because the district
court is permitted to preliminarily examine the motion and summarily dismiss the matter
if sufficient issues of fact and law are not raised.

1. Procedural bar

The State argues that Hopkins may not bring his illegal sentence claim because it
is procedurally barred. Specifically, the State claims that Hopkins may not bring his
Dickey claim for the first time on appeal, that K.S.A. 22-3504 is the improper procedural
vehicle for such a claim, and that Dickey may not be retroactively applied. These
procedural issues have been repeatedly considered and rejected by this court.

A. Res judicata

The State claims that Hopkins is barred from challenging his criminal history
calculation because he raises the issue for the first time on appeal. But K.S.A 22-3504
expressly states that the court may correct an illegal sentence "at any time." See State v.
Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015); State v. Neal, 292 Kan. 625, 631, 258
P.3d 365 (2011); State v. Martin, 52 Kan. App. 2d 474, Syl. ¶ 5, 369 P.3d 959 (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.").
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B. Proper procedural vehicle

The State also argues that Hopkins' sentence is not illegal as contemplated by
K.S.A. 22-3504(1) because Hopkins makes a constitutional claim. In support of this
argument, the State cites to State v. Warrior, 303 Kan. 1008, Syl., 368 P.3d 1111 (2016),
which held that a motion to correct an illegal sentence is not the proper procedural
vehicle to challenge the constitutionality of a statute. But Dickey held that a challenge to
a criminal history score is proper under K.S.A. 22-3504 because it is a claim that the
sentence does not conform to the applicable statutory provision regarding the authorized
punishment. Dickey, 301 Kan. at 1034; see Luarks, 302 Kan. at 975 (claim alleging
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"); Neal, 292 Kan. at 631
(challenge to criminal history score necessarily challenges sentence that criminal history
score helped produce; if criminal history score is wrong then resulting sentence cannot
conform with statutory provision governing term of punishment authorized). Thus, the
holding in Warrior is readily distinguishable.

C. Retroactive application of Dickey

Finally, the State contends that Dickey may not be retroactively applied to
Hopkins' case, which became final in 2010, well before Dickey was decided. 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). Dickey is not a "change in the law," but rather an application of the
constitutional rule announced in Apprendi, so the date of Apprendi is the relevant date
regarding the retroactivity analysis. See, e.g., State v. Gould, 271 Kan. 394, 414, 23 P.3d
801 (2001) (holding that the new constitutional sentencing rule established by Apprendi
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must be applied to all cases "which arose after June 26, 2000"). Hopkins' claim arose well
after Apprendi and therefore the rule in Dickey is properly applied to Hopkins' motion.
Additionally, this court recently held that the "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." Martin, 52 Kan. App. 2d at 483-84.

2. Classification of 1990 prior aggravated burglary convictions

Finding no procedural bar, we now address the merits of Hopkins' claim that the
district court erroneously classified his 1990 aggravated burglary convictions as person
felonies. Hopkins argues that this was a violation of his constitutional rights under (1)
Murdock or (2) Apprendi as incorporated into Kansas law by Dickey.

Hopkins begins his brief by restating the arguments he initially made based on
Murdock, a case that was subsequently overturned by Keel, 302 Kan. 560, Syl. ¶ 9.
Hopkins maintains his Murdock-based arguments because Keel was not final when he
appealed his sentence. Keel has since become final, when certiorari to the United States
Supreme Court was denied on January 11, 2016, and so Hopkins is not entitled to relief
under Murdock.

Next, Hopkins argues that the district court's classification of his prior aggravated
burglary convictions as person felonies violates Apprendi, which is implicated "when a
district court, for purposes of enhancing a defendant's sentence for a current conviction,
makes findings of fact at sentencing that go beyond merely finding the existence of a
prior conviction or the statutory elements that made up the prior conviction." Dickey, 301
Kan. at 1036. Applying the Apprendi principle, the Dickey court held that the district
court was constitutionally prohibited from classifying Dickey's prior burglary
adjudication as a person felony because doing so necessarily required judicial factfinding
beyond simply identifying the statutory elements that constituted the prior adjudication.
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In Dickey, the appellant contested the classification of a 1992 in-state juvenile
adjudication for burglary as a person felony. At the time of Dickey's adjudication, the
burglary statute in effect did not delineate between situations in which burglary would
qualify as a person felony and those in which it would qualify as a nonperson felony.
Additionally, the statute did not distinguish between dwellings and other structures—the
distinction that was the basis for classifying a burglary as a person or nonperson felony
when the Kansas Sentencing Guidelines Act (KSGA) became effective July 1, 1993. As a
result, it was impossible to tell whether Dickey had committed a burglary that would
qualify as a person felony without engaging in factfinding. The Dickey court concluded
that the adjudication had to be scored as a nonperson felony because the judicial
factfinding that would have been necessary to score it otherwise was constitutionally
prohibited by Descamps v. United States, 570 U.S. __, 133 S. Ct. 2276, 2288-89, 186 L.
Ed. 2d 438 (2013). Dickey, 301 Kan. at 1039.

But this case is distinguishable from Dickey in one crucial way: Hopkins' pre-1993
convictions were for aggravated burglary rather than burglary. The KSGA requires that
"[p]rior adult felony convictions 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)(2). At the time of Hopkins' prior aggravated
burglary convictions, Kansas defined the crime as follows:

"Aggravated burglary is 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 in which there is some human being, with intent to commit a felony or theft
therein.
"Aggravated burglary is a class C felony." K.S.A. 21-3716 (Ensley 1988).

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At the time of the commission of Hopkins' current crime, the Kansas statute stated as
follows:

"Aggravated burglary is knowingly and without authority entering into or
remaining within any building, manufactured home, mobile home, tent or other structure,
or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of
persons or property in which there is a human being, with intent to commit a felony, theft
or sexual battery therein.
"Aggravated burglary is a severity level 5, person felony." K.S.A. 21-3716.

The statutes' substantive content is nearly identical. The primary difference is that
the earlier statute was narrower in its intent: it required only "intent to commit a felony or
theft therein," where the latter statute includes "intent to commit a felony, theft or sexual
battery therein." Thus, Hopkins' conviction under the elements in the earlier statute would
also fit within the elements of the latter statute. The district court therefore did not engage
in any prohibited factfinding beyond the elements of the crime when it classified the prior
aggravated burglaries as person felonies for Hopkins' criminal history score, and Dickey
is inapplicable. See Dickey, 301 Kan. at 1036 (Apprendi is implicated when a district
court "makes findings of fact at sentencing that go beyond merely finding . . . the
statutory elements that made up the prior conviction.").

3. Summary dismissal

In his final claim of error on appeal, Hopkins seeks relief under K.S.A. 22-3504,
which he argues grants him the right to a hearing on his motion to correct an illegal
sentence and the right to be personally present with assistance of counsel at the hearing.
Hopkins concedes in his brief, however, that the district court has a duty to preliminarily
examine the motion to determine if sufficient issues of fact and law are raised and to
summarily dismiss the matter if no such issues of fact and law have been raised. See State
v. Duke, 263 Kan. 193, Syl. ¶ 1, 946 P.2d 1375 (1997).
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The Kansas Supreme Court has rejected the argument Hopkins makes here. See
Makthepharak v. State, 298 Kan. 573, 576, 314 P.3d 876 (2013) ("We have consistently
rejected [appellant's] argument that the plain language of K.S.A. 22-3504 requires a
substantive proceeding and the assistance of counsel in all cases."). Hopkins essentially
asks this court to depart from the established rule that district courts may conduct an
initial examination of an illegal sentence motion and to dismiss the motion without
hearing if "the motion, files, and records of the case conclusively show the defendant is
not entitled to relief." State v. Jones, 292 Kan. 910, Syl. ¶ 1, 257 P.3d 268 (2011). But, as
an intermediate appellate court, we are bound to Kansas Supreme Court precedent absent
some indication that the court is departing from its previous position. See State v. Jones,
44 Kan. App. 2d 139, 142, 234 P.3d 31 (2010). As there is no indication that the Kansas
Supreme Court intends to depart from Makthepharak and Jones, we decline Hopkins'
invitation to recognize an exception to established law and affirm the district court's
decision to summarily deny the motion to correct illegal sentence filed by Hopkins here.

Affirmed.