State v. Schultz

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NOT DESIGNATED FOR PUBLICATION

No. 116,000

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHNATHAN D. SHULTZ,
Appellant.


MEMORANDUM OPINION

Appeal from Marion District Court; MICHAEL F. POWERS, 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: Johnathan Shultz appeals the district court's denial of his motion to
correct illegal sentence. We granted Shultz'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 January 9, 2009, Shultz pled no contest to two counts of rape, each an off-grid
person felony. On April 9, 2009, pursuant to the plea agreement, the district court
imposed a downward departure sentence of 216 months in prison.

On August 10, 2015, Shultz filed a motion to correct illegal sentence. In the
motion, Shultz argued that the district court erred by including a 1991 juvenile burglary
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adjudication, scored as a person felony, in the calculation of his criminal history score.
The district court denied the motion and pointed out that even if Shultz's burglary
adjudication had been scored as a nonperson offense, this would not have affected
Shultz's plea-negotiated downward departure sentence of 216 months in prison. The
district court also noted that an incorrect criminal history score in this case does not
preclude Shultz from objecting to his criminal history calculation in future cases and does
not shift the burden to Shultz to prove his criminal history. Shultz timely appealed.

On appeal, Shultz argues that the district court "erred by failing to amend his
criminal history." Shultz points out that the Kansas Supreme Court has held that pre-1993
Kansas burglary convictions must be scored as nonperson felonies for purposes of
calculating criminal history. See State v. Dickey, 301 Kan. 1018, 1036-40, 350 P.3d 1054
(2015). However, Shultz acknowledges that his current crimes of convictions are off-grid
felonies and he received a plea negotiated sentence of 216 months' imprisonment, which
was not based on the calculation of his criminal history score.

An appellate court has unlimited review over the question of whether a sentence is
illegal. State v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 (2014). 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 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. State v. Lewis, 299 Kan. 828, 858, 326 P.3d 387 (2014).

We agree with Shultz that his 1991 burglary adjudication should be scored as a
nonperson felony based on our Supreme Court's decision in Dickey. But as the district
court pointed out in denying the motion, Shultz's sentence was not based upon the
calculation of his criminal history score. As the district court also noted, an incorrect
criminal history score in this case does not preclude Shultz from objecting to his criminal
history in future cases and the burden does not shift to Shultz to prove his criminal
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history based on the calculation in this case. See State v. Schow, 287 Kan. 529, 539-40,
197 P.3d 825 (2008).

Shultz makes no claim that his sentence for his rape convictions was imposed by a
court without jurisdiction; that his sentence does not conform to the applicable statutory
provision, either in character or term of authorized punishment; or that his sentence is
ambiguous with respect to the time and manner in which it is to be served. See Lewis,
299 Kan. at 858. Because Shultz makes no claim that he received an illegal sentence for
his rape convictions in this case, the district court did not err in denying Shultz's motion
to correct illegal sentence.

Affirmed.