State v. Olivas

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NOT DESIGNATED FOR PUBLICATION

No. 113,451

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ARNOLDO OLIVAS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed April 8, 2016.
Sentence vacated and case remanded with directions.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., HILL and GARDNER, JJ.

Per Curiam: Arnoldo Olivas appeals the district court's denial of his motion to
correct an illegal sentence. Specifically, Olivas argues the district court erred by engaging
in judicial factfinding to determine his criminal history score in violation of United States
v. Descamps, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), 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). The State responds the district court properly denied
Olivas' motion to correct an illegal sentence because the doctrine of res judicata bars
Olivas' claim and the holding in Dickey should not be applied retroactively. For the
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reasons stated herein, we reject the State's claims. Olivas' sentence is vacated, and his
case is remanded for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On March 6, 2003, Olivas was convicted following a bench trial of one count of
rape, a severity level 1 person felony. Based on a criminal history score of D, Olivas was
sentenced to 240 months' imprisonment. Olivas' criminal history was based upon five
prior convictions, one of which was a person felony described in the presentence
investigation as "Burglary (Dwelling)." Olivas did not object to his criminal history
classification.

Following sentencing, Olivas appealed the denial of his posttrial motion to vacate
the judgment of his rape conviction due to ineffective assistance of counsel. This court
denied Olivas' claim for relief, and the Kansas Supreme Court denied his petition for
review. State v. Olivas, No. 91,516, 2005 WL 217166 (Kan. App. 2005) (unpublished
opinion), rev. denied 279 Kan. 1009 (2005).

On June 6, 2014, Olivas filed a pro se motion to correct an illegal sentence arguing
that based on the Kansas Supreme Court's holding in 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, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016),
his 1992 Kansas burglary conviction should have been classified as a nonperson offense.
Olivas asked the district court to vacate his illegal sentence and resentence him to a term
authorized by law. A second and third motion to correct an illegal sentence were filed by
the public defender's office on September 23, 2014, and October 23, 2014, respectively.

Olivas argued that his 1992 Kansas burglary conviction should have been
classified as a nonperson offense based on this court's decision in Dickey, 301 Kan. 1018,
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Syl. ¶ 8. Olivas alleged this would have resulted in his criminal history score being G
instead of D.

The district court summarily denied all three motions on December 8, 2014,
finding: (1) the Court of Appeals' Dickey opinion conflicted with other Court of Appeals
opinions; (2) the Court of Appeals' Dickey opinion was pending in the Kansas Supreme
Court on petition for review and, therefore, not final; (3) the Murdock decision only
applied to pre-1993 out-of-state offenses; (4) the Murdock and Dickey opinions did not
apply retroactively; (5) because Olivas had failed to object to his criminal history at
sentencing, he was barred from later challenging it; (6) because Olivas had not
challenged his criminal history on direct appeal, he was barred from subsequently
challenging it; and (7) under Murdock and Dickey, Olivas' criminal history score would
not be altered. Olivas filed a timely notice of appeal.

ANALYSIS

On appeal, Olivas has abandoned his motion to correct an illegal sentence based
on our Supreme Court's holding in Murdock, presumably because Murdock has been
overruled by Keel. 302 Kan. 560, Syl. ¶ 9. Thus, we will proceed to answer Olivas'
remaining claim under Dickey that his sentence is illegal.

K.S.A. 22-3504(1) provides: "The court may correct an illegal sentence at any
time." Whether a sentence is illegal is a question of law over which an appellate court has
unlimited review. State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015).

"'[A]n "illegal sentence" under K.S.A. 22-3504 [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.
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Olivas contends that Dickey is dispositive with regard to his 1992 Kansas burglary
conviction. Another panel of this court recently addressed a nearly identical case in State
v. Martin, 52 Kan. App. 2d. ___, 2016 WL 852130, at *3-4 (No. 113,189, filed March 4,
2016), and we replicate it, in part, here:

"In Dickey, the defendant pled guilty to felony theft and his PSI report listed a 1992
juvenile adjudication for burglary, scored as a person felony. At sentencing, the
defendant did not object to his criminal history score as reflected in the PSI report. The
district court sentenced the defendant to a prison term, and he appealed.
"On appeal, the defendant challenged the classification of his 1992 burglary
adjudication as a person felony for criminal history purposes, arguing it violated his Sixth
Amendment rights as enunciated by the United States Supreme Court in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United
States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). In Apprendi, the Court
held: 'Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.' 530 U.S. at 490. In Descamps, the Court determined that
Apprendi is implicated when a district court enhances a defendant's sentence based on a
finding that goes beyond the existence of a prior conviction or the statutory elements that
comprised the prior conviction. Descamps, 133 S. Ct. at 2288–89.
"Our Supreme Court in Dickey determined that the defendant in that case was not
barred from challenging the classification of his burglary adjudication as a person felony
merely because he had stipulated to his criminal history score at sentencing. 301 Kan. at
1032. Specifically, our Supreme Court stated:
"'[A] defendant's stipulation or failure to object at sentencing will
prevent the defendant from later challenging the existence of the
convictions listed in his or her criminal history. But a stipulation or lack
of an objection regarding how those convictions should be classified or
counted as a matter of law for the purpose of determining the defendant's
criminal history score will not prevent a subsequent challenge under
K.S.A. 22-3504(1) of his or her prior convictions. [Citation omitted.]'
301 Kan. at 1032.
"Applying Apprendi and Descamps, the Dickey court determined the burglary
statute in effect when the defendant committed his prior burglary did not require evidence
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showing that the burglarized structure was a dwelling. 301 Kan. at 1039. The court
explained that because the burglary statute did not contain a dwelling element,
determination of whether the defendant's burglary involved a dwelling '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.
The Dickey court 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."

Based on Dickey, Olivas is not barred from challenging the classification of his
1992 Kansas burglary conviction as a person felony merely because he stipulated to his
criminal history score at sentencing. Similar to Dickey, the statute under which Olivas
was convicted of burglary in 1992 did not include a dwelling element. At that time,
burglary was defined as follows:

"Burglary is knowingly and without authority entering into or remaining within
any: (1) Building, mobile home tent or other structure, with intent to commit a felony or
theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of
conveyance of persons or property, with intent to commit a felony or theft therein."
K.S.A. 1992 Supp. 21-3715.

Because the burglary statute in effect at the time Olivas committed the burglary
for which he was convicted did not contain a dwelling element, the district court's person
classification necessarily required judicial factfinding. Accordingly, the classification of
Olivas' 1992 burglary conviction as a person felony violates his constitutional rights as
described in Descamps and Apprendi and as applied by the Kansas Supreme Court in
Dickey.




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Is a claim under Dickey to correct an illegal sentence timely when the defendant's
sentence is final?

The State does not dispute the contention that if Olivas was being sentenced today,
his 1992 Kansas conviction for burglary would be scored as nonperson offense under the
holding in Dickey. Instead, the State argues Olivas is procedurally barred from bringing
his claim by the doctrine of res judicata. Specifically, the State argues Olivas could have
challenged the classification of his burglary conviction as a person felony on direct
appeal and thus, by failing to do so, he has waived the issue. Additionally, the State
argues that even if this issue was not barred by res judicata, the holding in Dickey should
not be retroactively applied because Olivas' case was final before Dickey was decided.
The central issue in this appeal is whether a claim under Dickey may be brought in a
motion to correct an illegal sentence when the time for direct appeal has passed and the
defendant's sentence is final.

Whether the doctrine of res judicata applies in a certain case is an issue of law
over which appellate courts exercise de novo review. In re Tax Appeal of Fleet, 293 Kan.
768, 777, 272 P.3d 583 (2012); Miller v. Glacier Development Co., 293 Kan. 665, 668,
270 P.3d 1065 (2011).

"The doctrine of res judicata provides that 'where an appeal is taken from the
sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata
as to all issues actually raised, and those issues that could have been presented, but were
not presented, are deemed waived.' [State v. ]Neer, 247 Kan. [137,] 140-41[, 795 P.2d
362 (1990)]; see State v. Martin, 294 Kan. 638, 641, 279 P.3d 704 (2012) (res judicata
consists of four elements: '"[1] same claim; [2] same parties; [3] claims were or could
have been raised; and [4] a final judgment on the merits"'). The essence of the doctrine of
res judicata is that issues 'once finally determined . . . cannot afterwards be litigated.'
Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 61, 379 P.2d 342 (1963)." State v.
Kingsley, 299 Kan. 896, 901, 326 P.3d 1083 (2014).

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The State argues Olivas could have raised his current challenge to his sentence in a
direct appeal and, by failing to do so, he has waived it. In contrast, Olivas argues that,
while generally under Kansas law, if a defendant fails to raise all available issues on
direct appeal, he waives those issues; however, his failure to object to his criminal history
score at sentencing or raise this issue on direct appeal does not bar him from now
challenging the legal application of his criminal history. The general waiver rule is
inapplicable for motions to correct an illegal sentence where the issue presented has not
been previously litigated. This issue was recently decided by this court in Martin:

"The doctrine of res judicata or waiver does not apply to bar a claim when that
claim, if true, would render a sentence illegal and the claim has not been previously
addressed on its merits."
"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." Martin, 52 Kan. App. 2d ___, Syl. ¶¶ 4, 5.

Olivas' claim is true. His 1992 burglary was incorrectly characterized as a person
felony, and this issue has not been previously addressed on the merits. Olivas' claim is
not barred by the doctrine of res judicata.

Next, the State argues the holding in Dickey should not be retroactively applied to
cases like Olivas' that became final prior to our Supreme Court's opinion in Dickey. The
State points out that Dickey involved a challenge to criminal history on direct appeal.
Olivas, however, brought his claim in a motion to correct an illegal sentence filed after
his sentence had become final. This issue was also recently decided by this court in
Martin:

"'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
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Kan. 118, Syl. ¶ 3, 298 P.3d 349 (2013). The general rule prohibiting retroactive
application of an appellate court decision stems from our Supreme Court's adoption of the
United States Supreme Court's rules that in only two instances should new constitutional
rules be applied retroactively to cases on collateral review. As explained by our Supreme
Court in Drach v. Bruce, 281 Kan. 1058, 1072, 136 P.3d 390 (2006), cert. denied 549
U.S. 1278 (2007):
"'"Under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L.
Ed. 2d 334 (1989), a new rule of constitutional criminal procedure is not
applied retroactively on collateral review unless (1) it places certain
kinds of primary, private individual conduct beyond the power of the
criminal law-making authority to prosecute, or (2) it is a watershed rule
requiring the observance of those procedures that are implicit in the
concept of ordered liberty." [Citation omitted.]'
. . . .
"Generally, a defendant may not file a motion to correct an illegal sentence based
on constitutional challenges to his or her sentence. See Moncla, 301 Kan. at 553-54
('"Because the definition of an illegal sentence does not include a claim that the sentence
violates a constitutional provision, a defendant may not file a motion to correct an illegal
sentence based on constitutional challenges."'). But when a constitutional challenge
results in the determination that the defendant's criminal history score is incorrect, the
resulting sentence does not conform to the statutory provision in the term of the
punishment authorized and, consequently, is an illegal sentence. Neal, 292 Kan. at 631.
Under K.S.A. 22-3504(1), Kansas courts have jurisdiction to correct an illegal sentence at
any time. See State v. Kelly, 298 Kan. 965, Syl. ¶ 5, 318 P.3d 987 (2014).
"Based on Neal, 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. Stated differently, the general rule prohibiting retroactive application
of an appellate court decision is superseded by the legislative directive in K.S.A. 22-
3504(1) that the court may correct an illegal sentence at any time." Martin, 2016 WL
854130, at *6-7.

Olivas is not procedurally barred from challenging the legality of his sentence under
Dickey.

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In summary, based on the holding in Dickey, the district court erred at Olivas'
sentencing by classifying his 1992 Kansas burglary conviction as a person felony for
criminal history purposes. For the reasons stated, Olivas may bring his claim for relief
under Dickey in a motion to correct an illegal sentence even after his sentence became
final. Accordingly, we vacate Olivas' sentence and remand for resentencing with
directions to classify his 1992 Kansas burglary conviction as a nonperson felony for
criminal history purposes.

Sentence vacated and case remanded with directions.