State v. McIntyre

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NOT DESIGNATED FOR PUBLICATION

No. 116,004

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TERRY D. MCINTYRE,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed December 16,
2016. Affirmed.

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

Before MALONE, C.J., PIERRON and BRUNS, JJ.

Per Curiam: Terry D. McIntyre appeals the district court's denial of his motion to
correct illegal sentence. We granted McIntyre's motion for summary disposition in lieu of
briefs pursuant to Supreme Court Rule 7.041A (2015 Kan. Ct. R. Annot. 67). The State
has filed no response.

On December 8, 2000, a jury found McIntyre guilty of multiple charges, including
rape, aggravated criminal sodomy, aggravated kidnapping, aggravated robbery, and
kidnapping. The offenses were committed on July 2, 1999. The district court found that
McIntyre had a criminal history score of C, based in part on his pre-1993 Missouri
convictions of robbery and exhibiting a dangerous weapon, which were scored as person
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felonies for criminal history purposes. On January 12, 2001, the district court sentenced
McIntyre to 645 months' imprisonment with 36 months' postrelease supervision.

On May 14, 2014, McIntyre filed a motion to correct illegal sentence based on
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). In the motion,
McIntyre argued that his pre-1993 Missouri convictions should have been scored as
nonperson felonies for criminal history purposes. The district court filed a memorandum
decision on October 2, 2015, denying McIntyre's motion. McIntyre appealed.

On appeal, McIntyre argues that the district court erred in classifying his pre-1993
Missouri convictions as person felonies. Whether a prior conviction is properly classified
as a person or nonperson offense involves the interpretation of the Kansas Sentencing
Guidelines Act (KSGA). Interpretation of a statute is a question of law over which
appellate courts have unlimited review. Murdock, 299 Kan. at 314.

McIntyre acknowledges that our Supreme Court's holding in Murdock has been
overruled in Keel. In Keel, our Supreme Court held that when designating a pre-KSGA
conviction as a person or nonperson crime for criminal history purposes, the court must
determine the classification of the prior conviction as of the time the current crime of
conviction was committed. 302 Kan. at 589-90. McIntyre does not dispute that the
Missouri crimes of robbery and exhibiting a dangerous weapon, or their comparable
Kansas crimes, were person offenses at the time McIntyre's current crimes of conviction
was committed in 1999. Based on Keel, the district court did not err in classifying
McIntyre's pre-1993 Missouri convictions as person offenses for criminal history
purposes. Thus, the district court did not err in denying McIntyre's motion to correct
illegal sentence.

Affirmed.