State v. Stark

1

NOT DESIGNATED FOR PUBLICATION

No. 113,583

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JERRY L. STARK,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed November 20,
2015. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2014 Supp. 21-6820(g) and (h).

Before MALONE, C.J., GREEN and HILL, JJ.

Per Curiam: Jerry L. Stark appeals the district court's denial of his motion to
correct an illegal sentence. We granted Stark's motion for summary disposition in lieu of
briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State
has filed a response and requested that the district court's judgment be affirmed.

A jury found Stark guilty of one count of aggravated indecent liberties with a
child, a severity level 3 person felony. On November 30, 2000, the district court
sentenced Stark to 494 months' imprisonment with 36 months' postrelease supervision.

On December 24, 2014, Stark filed a motion to correct illegal sentence based on
State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order
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September 19, 2014, overruled by State v. Keel, 302 Kan. ___, 357 P.3d 251 (2015). In
the motion, Stark argued that his 1982 Florida convictions of three counts of sexual
battery and one count of lewd and lascivious behavior should have been scored as
nonperson crimes for criminal history purposes. The district court denied the motion.
Stark timely appealed.

On appeal, Stark reasserts his argument that the district court erred in classifying
his 1982 Florida convictions as person crimes. 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.

Stark 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. 357 P.3d at 262. Sexual battery and lewd and lascivious
behavior were scored as person crimes in Kansas at the time Stark's current crime of
aggravated indecent liberties with a child was committed in 2000. See K.S.A. 21-3517
(Furse 1995); K.S.A. 21-3508 (Furse 1995). Based on Keel, the district court did not err
in classifying Stark's pre-KSGA convictions as person crimes for criminal history
purposes. Thus, the district court did not err in denying Stark's motion to correct an
illegal sentence.

Affirmed.