State v. Labelle

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NOT DESIGNATED FOR PUBLICATION

No. 113,376

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KEVIN J. LABELLE,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed April 15,
2016. Vacated and remanded for resentencing.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., BRUNS, J., and WALKER, S.J.

Per Curiam: Kevin J. Labelle appeals from the district court's denial of his motion
to correct illegal sentence. Following the reasoning in State v. Dickey, 301 Kan. 1018,
350 P.3d 1054 (2015), we conclude that the district court should have classified Labelle's
1991 burglary as a nonperson felony when calculating his criminal history score.
Following the reasoning of State v. Martin, 52 Kan. App. 2d ___, Syl. ¶¶ 7, 8, __ P.3d
___ (No. 113,189, filed March 4, 2016), we also find that a Dickey claim may be brought
in a motion to correct illegal sentence at any time. Accordingly, we vacate Labelle's
sentence and remand this case to the district court for resentencing.
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FACTS

On April 29, 2005, Labelle pled guilty to one count of sexual exploitation of a
child for conduct that occurred in December 2004. The plea agreement permitted the
State to ask the district court to double Labelle's sentence under K.S.A. 21-4704(j) as a
persistent sex offender. The original presentence investigation (PSI) report calculated
Labelle's criminal history as category A based on 1 juvenile and 2 adult person felonies.
But court services later prepared an amended PSI that calculated Labelle's criminal
history as category B, based on 2 adult person felonies, 3 nonperson felonies, and one
nonperson misdemeanor.

The adult felonies classified as person offenses in the amended PSI both occurred
before Kansas Sentencing Guidelines (KSGA) became effective on July 1, 1993. See
K.S.A. 21-4701 et seq.; L. 1992, ch. 239, § 1 (effective July 1, 1993). The first was a
1991 conviction for "Burglary (Dwelling)"and the second was a 1991 conviction for
indecent liberties with a child December 20, 1991. The district court did not score
Labelle's 1988 juvenile adjudication for indecent liberties with a child in the criminal
history calculation because it used the juvenile adjudication to enhance Labelle's sentence
as a persistent sex offender.

When asked by the district court at the sentencing hearing, counsel agreed that
Labelle's criminal history score and persistent sex offender classification were correct as
set forth in the amended PSI. Accordingly, on June 10, 2005, the district court sentenced
Labelle to 256 months' imprisonment as a persistent sex offender. It does not appear that
Labelle filed a direct appeal.

On October 17, 2006, Labelle filed a pro se motion to correct illegal sentence,
arguing that the district court had improperly used a prior conviction to double his
sentence in violation of K.S.A. 21-4710(d)(11) and his constitutional guarantees under
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the Sixth and Fourteenth Amendments to the United States Constitution. After the district
court denied the motion, Labelle filed a motion to alter or amend the judgment and an
amended motion to alter or amend judgment. The district court also denied both of these
motions, and Labelle appealed.

A panel of this court affirmed the district court's denial of Labelle's motion. State
v. LaBelle, No. 98,136, 2008 WL 3915985 at *1-2 (Kan. App. 2008) (unpublished
opinion). But on May 28, 2010, the Kansas Supreme Court vacated Labelle's sentence
and remanded for resentencing. State v. LaBelle, 290 Kan. 529, Syl. ¶ 5, 231 P.3d 1065
(2010). On remand, the district court again sentenced Labelle to 256 months'
imprisonment, this time explaining that it was scoring his juvenile conviction for
aggravated sexual battery as a person felony in calculating his criminal history score,
which kept his criminal history score at B, and was using his adult conviction for
indecent liberties with a child to determine him to be a persistent sex offender.

More than 3 years later on May 29, 2014, Labelle filed a second motion to correct
illegal sentence, arguing that he should be resentenced pursuant to 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, Syl. ¶ 9, 357 P.3d 251 (2015). Moreover, on
October 23, 2014, he filed a third motion to correct illegal sentence pursuant to this
court's opinion in State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), aff'd 301
Kan. 1018, 350 P.3d 1054 (2015). On December 15, 2014, the district court summarily
denied Labelle's motions. Thereafter, Labelle timely filed a notice of appeal.

ANALYSIS

On appeal, Labelle initially contends that the district court erred in denying his
motions to correct illegal sentence. Labelle argues that his sentence is illegal because the
district court miscalculated his criminal history score. Specifically, he claims that his
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1991 in-state burglary conviction must be scored as a nonperson felony for criminal
history purposes given the statutory elements of the offense and the dictates of 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). Dickey, 301
Kan. at 1021. We agree.

Whether a sentence is illegal is a question of law over which this court has
unlimited review. See State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015). Under
K.S.A. 22-3504, an illegal sentence is:

"'(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. [Citations omitted.]'" 301 Kan. at 551.

In Dickey, the defendant pled guilty to felony theft, and his PSI listed a 1992
juvenile adjudication for burglary that the district court scored as a person felony. At
sentencing, the defendant did not object to his criminal history score as reflected in the
PSI report. On appeal, the defendant challenged for the first time the classification of his
1992 burglary adjudication as a person felony, arguing that it violated his Sixth
Amendment rights as articulated by the United States Supreme Court in Apprendi and
Descamps. Our Supreme Court concluded that the defendant was not barred from
challenging the classification of his burglary adjudication as a person felony because it
held that a stipulation or lack of an objection regarding how a prior conviction or
adjudication should be classified in determining a defendant's criminal history score does
not prevent a subsequent challenge under K.S.A. 22-3504(1). 301 Kan. at 1032.

Furthermore, applying Apprendi and Descamps, the Dickey court determined that
the burglary statute in effect when the defendant committed his prior burglary did not
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require evidence showing that the burglarized structure was a dwelling. 301 Kan. at 1039.
Our Supreme Court explained that because the burglary statute did not contain a dwelling
element, determining whether the defendant's burglary involved a dwelling at the
criminal history stage "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. Thus, it 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.

Applying the same reasoning as used in Dickey, we conclude that scoring Labelle's
1991 in-state conviction for burglary as a person felony violates his constitutional rights.
Nevertheless, the State maintains that Labelle has abandoned the issues raised in his
motions to correct illegal sentence because he did not assert the issue regarding the 1991
burglary conviction on direct appeal. Moreover, the State contends that we should not
retroactively apply Dickey. Both of these issues, however, were addressed recently by
this court in Martin, and we find its rationale persuasive.

As indicated above, the Martin decision held that a constitutional violation 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. 52 Kan. App. 2d __, Syl. ¶¶
7, 8. Moreover, the court found in Martin that 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 legislative directive in K.S.A. 22-3504(1). 52 Kan.
App. 2d ___, Syl. ¶ 5.

We, therefore, vacate Labelle's sentence and remand this case to the district court
for resentencing consistent with Dickey.