State v. Nixon

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NOT DESIGNATED FOR PUBLICATION

Nos. 120,261
120,262
120,263

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GRANT MICHAEL NIXON,
Appellant.


MEMORANDUM OPINION

Appeal from Montgomery District Court; JEFFREY D. GOSSARD, judge. Opinion filed December
6, 2019. Affirmed in part, vacated in part, and remanded with directions.

Steven D. Alexander, of Kansas City, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before HILL, P.J., MALONE and POWELL, JJ.

PER CURIAM: Grant Michael Nixon appeals the district court's denial of his
motion to correct illegal sentence filed in three separate cases. Nixon argues mainly that
he was sentenced to penalties not in effect until 2006, even though he pled guilty to
crimes occurring between November 2005 and June 2009. We agree with Nixon's claim
in part, so we vacate in part and remand for resentencing as more fully explained in this
opinion.

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FACTUAL AND PROCEDURAL BACKGROUND

In May and June 2009, the State charged Nixon with multiple sex crimes in three
cases: 09CR229, 09CR272, and 09CR273. On September 1, 2009, the State filed
amended complaints in each case. In 09CR229, the State charged Nixon with one count
of aggravated criminal sodomy occurring "at some time on or after November 7, 2005
and before June 14, 2009" and two counts of indecent liberties with a child. In 09CR272,
the State charged Nixon with aggravated indecent solicitation of a child occurring "on or
after November 7, 2005, but prior to June 1, 2009." In 09CR273, the State charged Nixon
with one count of electronic sexual solicitation of a child occurring "on or after
November 7, 2005, but before June 14, 2009" and one count of sexual exploitation of a
child occurring "on or after November 7, 2005, but before June 14, 2009."

On the same day, Nixon agreed to plead guilty to aggravated criminal sodomy,
aggravated indecent solicitation of a child, electronic solicitation of a child, and sexual
exploitation of a child in exchange for the dismissal of two counts of indecent liberties
with a child in 09CR229. The plea agreement stated Nixon pled to the charges as "set
forth" in the complaint and there was sufficient evidence to support the crimes charged as
"set forth" in the complaint.

Also on September 1, 2009, the district court held a plea hearing. Nixon agreed to
waive the preliminary hearing on each case and stated he wanted to plead guilty. The
district court went through each crime and read the charge verbatim from the amended
complaint—including the time period as charged—then asked Nixon if he agreed that
there was sufficient evidence to sustain a guilty verdict to which Nixon responded, "Yes."
The district court accepted Nixon's guilty pleas and did not indicate that it considered any
other documents or evidence in determining the factual basis for the pleas.

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On November 3, 2009, the district court sentenced Nixon in all three cases. In
09CR229—aggravated criminal sodomy—the district court sentenced Nixon to life
imprisonment with a mandatory minimum of 25 years. In 09CR272—aggravated
indecent solicitation of a child—the district court sentenced Nixon to 136 months'
imprisonment. In 09CR273, the district court sentenced Nixon to 228 months'
imprisonment for count I, electronic sexual solicitation of a child, and to life
imprisonment with a mandatory minimum of 25 years for count II, sexual exploitation of
a child, with the two counts running concurrent with each other. The district court
ordered the sentences in all three cases to run consecutive to each other.

Nixon appealed his sentences. On October 28, 2011, the Kansas Supreme Court
determined that the challenged sentences were presumptive and fell within the statutory
grid block, precluding appellate review. State v. Nixon, No. 103,659, 2011 WL 5142964,
at *1 (Kan. 2011) (unpublished opinion).

On March 23, 2018, Nixon filed a motion to correct illegal sentence in each case.
The district court held a hearing on the motion on October 2, 2018. At the hearing, the
State called Chief of Cherryvale Police Jimmy Holt to testify. Nixon objected to his
testimony and the State explained that "[t]his evidence goes specifically to the factual
basis that these proceedings are here to determine, whether or not at the time of the plea
Mr. Nixon had committed the offenses before or after [July 1, 2006]." Holt then testified
that he reviewed the victim interviews and victim statements from the cases and the State
moved to admit the victim interviews and statements as evidence. Nixon again objected,
arguing that he pled guilty to the offenses occurring between November 2005 and June
2009, not to the dates reflected in the evidence the State was trying to admit.

The district court never ruled on whether it would admit the evidence. Instead,
after hearing arguments from the parties, the district court stated that it was taking
judicial notice of the court files and the information in those files, including the probable
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cause affidavits which reflected the exact dates of the criminal acts. The district court
denied Nixon's motion, finding the court files established that the crimes occurred after
July 1, 2006, and that the time period stated in the complaints must have been an error.
The district court filed a journal entry denying the motion to correct illegal sentence on
March 26, 2019. Nixon timely filed a notice of appeal in each case, and this court
consolidated the cases on appeal.

NIXON'S SENTENCES FOR AGGRAVATED CRIMINAL SODOMY AND
SEXUAL EXPLOITATION OF A CHILD

Nixon claims his two sentences of hard 25 life imprisonment for his aggravated
criminal sodomy conviction and his sexual exploitation of a child conviction were illegal.
He argues that because the amended complaints, which he pled guilty to, stated that the
offenses occurred on or after November 7, 2005, but before June 14, 2009, and there
were two penalties in effect during that time period—due to a statutory amendment
effective July 1, 2006—he should have been sentenced to the less severe penalty.

The State argues that Nixon's motion to correct illegal sentence was properly
denied in each case because he is essentially challenging his convictions or arguing that
the complaints were defective, both of which are impermissible arguments in a motion to
correct illegal sentence. In the alternative, the State argues that the district court did not
err because the probable cause affidavits show that the criminal acts occurred in 2009.

An appellate court has jurisdiction to correct an illegal sentence even if the
sentence was agreed to in a plea agreement. State v. Quested, 302 Kan. 262, 264, 352
P.3d 553 (2015). The court may correction an illegal sentence at any time. K.S.A. 2018
Supp. 22-3504(1). An illegal sentence is one that (1) is "[i]mposed by a court without
jurisdiction"; (2) "does not conform to the applicable statutory provision, either in
character or punishment"; or (3) "is ambiguous with respect to the time and manner in
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which it is to be served." K.S.A. 2018 Supp. 22-3504(3); see State v. Hayes, 307 Kan.
537, 538, 411 P.3d 1225 (2018). Whether a sentence is illegal is a question of law subject
to de novo review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).

Nixon raises a proper illegal sentence claim.

The State argues that Nixon fails to raise a proper illegal sentence claim. The State
points to the rule that a motion to correct illegal sentence cannot be used to challenge a
conviction. See State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012). The State also
points out that a motion to correct illegal sentence cannot be used to challenge a defective
charging document. See State v. Robertson, 309 Kan. 602, 605-06, 439 P.3d 898 (2019).
But the cases the State relies on and the arguments raised in those cases are
distinguishable from Nixon's claim.

In Sims, the defendant argued that his charges did not list all the required elements
under the statute to charge the crime. The court determined that Sims' arguments were
challenges to the validity of his conviction and were improper in a motion to correct
illegal sentence. 294 Kan. at 825. In Robertson, the defendant argued that his convictions
were improper because the charging document used an incorrect version of his name. The
court determined that Robertson's argument did not entitle him to relief because he was
arguing for reversal of his convictions based on a defective charging document. 309 Kan.
at 605-06.

Nixon is not using his motion to correct illegal sentence to attack his convictions
or to challenge the sufficiency of the complaints on the charges of aggravated criminal
sodomy and sexual exploitation of a child. Nixon makes it clear that he is not trying to set
aside his conviction of aggravated criminal sodomy. Instead, he is arguing that because of
the time frame set forth in the complaint, he is subject to two separate penalties and under
the rule of lenity, he must receive the lesser of two possible sentences. Nixon makes the
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same argument on his sentence for sexual exploitation of a child. Thus, Nixon raises a
proper illegal sentence claim because he is claiming that his sentences for aggravated
criminal sodomy and sexual exploitation of a child do not "conform to the applicable
statutory provision, either in character or punishment." K.S.A. 2018 Supp. 22-3504(3).

When Nixon's sentences were imposed, it was unclear whether the criminal acts occurred
before or after July 1, 2006.

Turning to the merits of Nixon's claim, the penalties in effect at the time of the
criminal acts are controlling. See State v. Rice, 308 Kan. 1510, 1512, 430 P.3d 430
(2018). Nixon pled to aggravated criminal sodomy and sexual exploitation of a child for
acts occurring on or after November 7, 2005, but before June 14, 2009. For the time
period alleged in the complaint, there were two possible penalties in effect for aggravated
criminal sodomy and for sexual exploitation of a child due to statutory amendments
effective July 1, 2006. Before July 1, 2006, aggravated criminal sodomy was a severity
level 2 person felony. K.S.A. 21-3506(c) (Furse 1995). After July 1, 2006, aggravated
criminal sodomy was an off-grid person felony. K.S.A. 2006 Supp. 21-3506(c).
Similarly, before July 1, 2006, sexual exploitation of a child was a severity level 5 person
felony. K.S.A. 2005 Supp. 21-3516(c). After July 1, 2006, sexual exploitation of a child
was an off-grid person felony. K.S.A. 2006 Supp. 21-3516(c).

Thus, to establish which penalty should apply, we must determine whether Nixon
committed the criminal acts before or after the July 1, 2006 statutory amendments. The
charging documents charged Nixon with committing aggravated criminal sodomy and
sexual exploitation of a child over a three-and-a-half-year time period. The written plea
agreement stated that Nixon would plead guilty to the charges as "set forth" in the
complaint and that there was sufficient evidence to support the crimes charged as "set
forth" in the complaint. At the plea hearing, the district court read the charges verbatim
from the amended complaints—including the time period charged. In sum, when Nixon
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pled guilty and was sentenced for aggravated criminal sodomy and sexual exploitation of
a child, there was nothing in the complaints, the plea agreement, or the plea hearing that
established the specific date of each offense.

But the State argues that the lack of this finding does not matter since the probable
cause affidavits in the record show that Nixon committed the acts after July 1, 2006. At
the hearing on Nixon's motion to correct illegal sentence, the district court agreed with
the State, finding that the crimes occurred after July 1, 2006, based on the probable cause
affidavits, of which it took judicial notice. Nixon challenges this finding on appeal,
arguing that the State, by introducing evidence of the victims' statements and the
affidavits, violated his Confrontation Clause rights and the evidence constituted hearsay.

Although the State tried to introduce evidence at the hearing on Nixon's motions
through the testimony of the police chief and various victim statements, the district court
never ruled on the admissibility of this evidence. Nixon objected to the evidence at the
hearing and argues on appeal that introducing the evidence violated his confrontation
rights and constituted hearsay. We need not resolve this issue because we find that the
evidence was inadmissible for a more basic reason. By introducing the evidence of when
the criminal acts were committed, the State essentially was trying to amend the charging
document in each case against Nixon. But the court may only permit a complaint or
information to be amended at any time before a verdict or finding of guilt. K.S.A. 22-
3201(e). By the time Nixon filed his motions to correct illegal sentence, it was too late for
the State to try to amend the time periods for the criminal acts as set forth in the charging
documents. Thus, the evidence presented by the State at the hearing on Nixon's motions
was inadmissible for this reason alone.

Rather than base its decision on the State's evidence offered at the hearing, the
district court stated that it was taking judicial notice of its court files, including the
probable cause affidavits to establish that Nixon's criminal acts were committed in 2009.
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The State contends on appeal that even if the evidence offered at the hearing was
inadmissible because it violated Nixon's confrontation rights, the error was harmless
because the district court can take judicial notice of its own files.

While it is true that a court may take judicial notice of its own files, the
information judicially noticed by courts relying on this rule is distinguishable from the
information judicially noticed by the court in Nixon's case. See, e.g., State v. Lowe, 238
Kan. 755, 759, 715 P.2d 404 (1986) (taking judicial notice of its own record of the
defendant's prior juvenile proceedings when determining whether the defendant could
proceed under the juvenile offenders code). Here, the district court did not take judicial
notice of some prior proceeding reflected in the case file. Instead, the district court took
judicial notice of documents containing disputed facts that were not previously presented.

K.S.A. 60-409 addresses facts which must or may be judicially noticed and states:

"(a) Judicial notice shall be taken without request by a party, of the common law,
constitutions and public statutes in force in every state, territory and jurisdiction of the
United States, and of such specific facts and propositions of generalized knowledge as are
so universally known that they cannot reasonably be the subject of dispute.
"(b) Judicial notice may be taken without request by a party, of (1) private acts
and resolutions of the Congress of the United States and of the legislature of this state,
and duly enacted ordinances and duly published regulations of governmental subdivisions
or agencies of this state, and (2) the laws of foreign countries and (3) such facts as are so
generally known or of such common notoriety within the territorial jurisdiction of the
court that they cannot reasonably be the subject of dispute, and (4) specific facts and
propositions of generalized knowledge which are capable of immediate and accurate
determination by resort to easily accessible sources of indisputable accuracy.
"(c) Judicial notice shall be taken of each matter specified in subsection (b) of
this section if a party requests it and (1) furnishes the judge sufficient information to
enable him or her properly to comply with the request and (2) has given each adverse
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party such notice as the judge may require to enable the adverse party to prepare to meet
the request."

The only applicable provision by which the district court could take judicial notice
of the information in the probable cause affidavits is under K.S.A. 60-409(b)(4), which
allows the district court to take judicial notice of "specific facts and propositions of
generalized knowledge which are capable of immediate and accurate determination by
resort to easily accessible sources of indisputable accuracy." But the exact dates of
Nixon's criminal offenses are not "generalized knowledge" subject to judicial notice.
Instead, the dates are case-specific facts that the State would have had to prove if Nixon
had not pled guilty to the complaint. See State v. Maxwell, No. 93,791, 2006 WL 619198,
at *3-4 (Kan. App. 2006) (unpublished opinion) (finding it improper for the district court
to take judicial notice of a witness' qualifications because the court provided "missing
elements of the State's case" that the blood draw was performed by a "qualified medical
technician"). Thus, we conclude the district court misapplied K.S.A. 60-409 and erred by
taking judicial notice of the exact dates of the offenses as reflected in the probable cause
affidavits as such facts were not generalized knowledge.

In sum, in examining a motion to correct illegal sentence, the district court is to
look at the sentence when it was pronounced and apply then-existing law to determine
whether the sentence is illegal. State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307
(2019). Here, when the sentence was pronounced, there was no finding that the criminal
acts occurred after the July 1, 2006 statutory amendments. Thus, the district court should
have determined whether the sentences were illegal when pronounced from the bench
based on what Nixon pled guilty to: aggravated criminal sodomy and sexual exploitation
of a child occurring on or after November 7, 2005, but before June 14, 2009.



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Nixon's sentences were illegal because of the uncertainty about when the acts occurred.

Without the district court's finding that the acts occurred in 2009, Nixon's
argument comes down to whether it was illegal to sentence him to the amended penalties
when it was unclear whether the acts occurred before or after the statutory amendments.
There are a few cases discussing this issue. First, State v. Jackson, 239 Kan. 463, 472,
721 P.2d 232 (1986), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375
P.3d 332 (2016), established that "[i]f the jury finds that the [criminal] act occurred
during the alleged time period, and if the jury is uncertain as to whether the act was
committed before or after the effective date of [an amended statute], then defendant can
be convicted of the lesser offense only."

The Kansas Supreme Court cited the rule from Jackson and applied it to a
sentencing argument in State v. Mullins, 267 Kan. 84, 99, 977 P.2d 931 (1999). In that
case, the court found that the defendant could only be sentenced to the less severe
sentence when, based on a general jury verdict on the crime as charged, it was unclear
whether the act occurred before or after the amendment of a statute. 267 Kan. at 99.

More relevant here, a panel of this court cited Mullins and Jackson in a case on the
application of Jessica's Law, the July 1, 2006 amendments to the sex crimes statutes, to a
rape conviction based on acts that occurred "between January 1, 2006, and December 31,
2006." State v. Shelton, No. 108,709, 2014 WL 1508621, at *11 (Kan. App. 2014)
(unpublished opinion). The panel explained that Jessica's Law imposed a mandatory
minimum of 25 years for Shelton's rape conviction. 2014 WL 1508621, at *11. The panel
ultimately determined that Shelton's sentence was illegal because the jury rendered a
general verdict "for crimes committed in a period during which the court cannot be
certain whether the acts occurred before or after Jessica's Law took effect." 2014 WL
1508621, at *11. The panel held that Shelton could only be sentenced to the less severe,
pre-Jessica's Law penalties. 2014 WL 1508621, at *11.
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Finally, in State v. Carter, No. 105,755, 2012 WL 3135839, at *6 (Kan. App.
2012) (unpublished opinion), this court applied Jackson to Carter's no-contest plea to
aggravated indecent solicitation occurring "between January 2006 and December 2009."
The question again had to deal with the application of Jessica's Law, enacted on July 1,
2006, which required lifetime postrelease supervision for sexually violent crimes. Carter
argued that because he pled to a time period that included a portion that would not be
subject to Jessica's Law, he should not have been sentenced to lifetime postrelease
supervision. The State correctly argued that it proffered at the plea hearing that the acts
occurred in 2009. But the panel found that because Carter entered a no-contest plea, he
did not admit to the facts alleged in the factual basis and instead pled to the offense as
charged—acts occurring "between January 2006 and December 2009." 2012 WL
3135839, at *6. Thus, the panel applied the rule set forth in Jackson and determined that
Carter could only be sentenced to the lesser period of postrelease supervision, not the
penalties enacted by Jessica's Law. 2012 WL 3135839, at *6.

Applying the rule explained in Jackson and Mullins, Nixon's sentences for
aggravated criminal sodomy and sexual exploitation of a child are illegal. Nixon pled
guilty to aggravated criminal sodomy and sexual exploitation of a child occurring on or
after November 7, 2005, but before June 14, 2009. The exact dates of the criminal acts
were never established at the time of his convictions or sentencing. Thus, it is unclear
whether the acts occurred before or after the July 1, 2006 statutory amendments, so
Nixon must be sentenced to the lesser, pre-amendment penalties. For that reason, Nixon's
sentences in 09CR229 for aggravated criminal sodomy and count II of 09CR273 for
sexual exploitation of a child are vacated and the cases are remanded for resentencing.

NIXON'S SENTENCE FOR ELECTRONIC SEXUAL SOLICITATION OF A CHILD

Nixon claims his sentence for count I in 09CR273—electronic sexual solicitation
of a child—was illegal because electronic solicitation of a child was not a criminal
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offense until July 1, 2006. Nixon again points to the language in the complaint that states
the offense occurred "on or after November 7th, 2005, but before June 14, 2009." Nixon
argues that because the crime did not exist for a portion of the time period set forth in the
complaint, the district court lacked jurisdiction to sentence him and his sentence should
be vacated. The State counters that Nixon is improperly asking that his conviction be
reversed based on a defective complaint and that a motion to correct illegal sentence is
not the proper vehicle for Nixon to bring this claim.

This time the State is correct. Even though Nixon argues that his sentence for
electronic solicitation of a child should be vacated, he is essentially complaining about
possibly being convicted of a nonexistent crime. The only way that Nixon is entitled to
any relief on this claim is by attacking the validity of his underlying conviction. But as
the State points out, a motion to correct illegal sentence "'is not a vehicle for a collateral
attack on a conviction.'" State v. Cotton, 306 Kan. 156, 159, 392 P.3d 116 (2017)
(quoting State v. Williams, 283 Kan. 492, 496, 153 P.3d 520 [2007]). Thus, Nixon cannot
raise this claim in a motion to correct illegal sentence.

NIXON'S SENTENCE FOR AGGRAVATED INDECENT SOLICITATION OF A CHILD

Finally, Nixon claims his sentence for aggravated indecent solicitation of a child
in 09CR272 is illegal. The classification and sentence for Nixon's conviction of
aggravated indecent solicitation of a child in 09CR272 did not change on July 1, 2006.
Still, Nixon argues that if his case is remanded for resentencing in 09CR229 and
09CR273, then the new sentences "will obviously change his criminal history score" in
09CR272. The State argues that Nixon's criminal history score will not change unless his
conviction of electronic sexual solicitation of a child in 09CR273 is set aside.

We agree with the State and find that Nixon is not entitled to relief on this claim.
As explained above, Nixon should be resentenced in 09CR229 to a level 2 person felony
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and in count II of 09CR273 to a level 5 person felony. But as we have discussed, Nixon is
not entitled to have his conviction of electronic sexual solicitation of a child set aside in
this proceeding, so his conviction on that charge remains a severity level 3 person felony.
As a result, Nixon will still have three person felonies, giving him a criminal history
score of A in 09CR272. Nixon's sentence for aggravated indecent solicitation of a child
was not illegal and the district court did not err in denying his motion in 09CR272.

Affirmed in part, vacated in part, and remanded with directions.