State v. Lee

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NOT DESIGNATED FOR PUBLICATION

No. 114,230

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GARY A. LEE,
Appellant.


MEMORANDUM OPINION

Appeal from Osage District Court; PHILLIP M. FROMME, judge. Opinion filed July 22, 2016.
Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and
(h).

Before POWELL, P.J., PIERRON and ATCHESON, JJ.

Per Curiam: Defendant Gary Lee appeals the sentence he received from the
Osage County District Court following his conviction for possession of
methamphetamine. As provided in Supreme Court Rule 7.041A (2015 Kan. Ct. R. Annot.
67), we granted the State's motion for summary disposition after Lee filed a brief. Lee did
not file a response to the State's motion. As we outline, Lee's sentence is lawful. We,
therefore, affirm the district court.

In May 2013, pursuant to an agreement with the State, Lee pled no contest to a
single count of possession of methamphetamine. The presentence investigation report
placed Lee in criminal history category A, since he had convictions for 3 person felonies,
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1 nonperson felony, 3 person misdemeanors, and 5 nonperson misdemeanors. Two of the
person felonies were committed before July 1, 1993. The district court sentenced Lee to
40 months in prison—a lawful statutory punishment but longer than the recommended
sentence under the plea agreement.

In July 2014, Lee filed a motion to correct illegal sentence in which he argued
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), required his pre-1993 felony convictions be scored as
nonperson felonies for criminal history purposes. The district court summarily denied
Lee's motion on the grounds Murdock did not apply retroactively to Lee's case. Lee
timely appealed the denial of his motion to correct illegal sentence. In the meantime, the
Kansas Supreme Court overruled Murdock. Keel, 302 Kan. at 589.

On appeal, Lee concedes that in light of Keel, the district court correctly
determined his criminal history and imposed a statutorily authorized sentence. Lee
submits he wishes to preserve the issue for federal review.

Accordingly, the district court reached the right result in denying Lee's motion to
correct an illegal sentence based on Murdock, albeit for the wrong reason. See Rose v.
Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005) ("If a trial court
reaches the right result, its decision will be upheld even though the trial court relied upon
the wrong ground or assigned erroneous reasons for its decision.").

Affirmed.