State v. Henderson

447 P.3d 986
Court of Appeals of Kansas·Decided May 31, 2019·No. No. 119,172·Published·Cited by 1 cases

Opinion

Malone, J.:

Michael E. Henderson appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. But this appeal is not about the probation revocation order. For the first time on appeal, Henderson claims his original sentence imposed on January 7, 2015, is illegal because the district court erred in classifying his 2005 Mississippi conviction of burglary of a dwelling as a person offense for criminal history purposes. In an unpublished memorandum opinion filed on May 31, 2019, we vacated Henderson's sentence and remanded for resentencing with directions to classify the Mississippi burglary conviction as a nonperson felony. State v. Henderson , No. 119,172, 2019 WL 2306621 (Kan. App. 2019) (unpublished opinion).

The State timely moved for rehearing or modification based on State v. Newton , 309 Kan. ----, 442 P.3d 489 (2019). Henderson responded and argued that we should either (1) deny the State's motion because the State waived its newly asserted argument, or (2) even if we address the State's newly asserted argument, we should still find that Henderson's Mississippi burglary conviction should be scored as a nonperson felony. For the reasons stated in this modified opinion, we grant the State's motion for rehearing or modification, and we now conclude the district court did not err in classifying Henderson's 2005 Mississippi burglary conviction as a person offense for criminal history purposes. As a result, we reject Henderson's claim that his sentence is illegal.

*988We will briefly state the facts. On September 19, 2012, the State charged Henderson with one count of possession of methamphetamine with intent to distribute. Henderson later pled guilty as charged. The amended presentence investigation (PSI) report listed a 2005 Mississippi conviction for "burglary of a dwelling" and classified it as a person felony resulting in a criminal history score of C. On January 7, 2015, based on Henderson's criminal history score, the district court sentenced him to 68 months' imprisonment but granted a dispositional departure to probation for 36 months.

During his probation term, Henderson served two three-day "quick dips" for probation violations as well as a 180-day intermediate prison sanction. The State later moved to revoke Henderson's probation, and he stipulated to using controlled substances and failing to report to his probation officer. On April 24, 2017, the district court revoked Henderson's probation and ordered him to serve the remainder of his prison sentence. In the journal entry of probation revocation, the district court did not award credit for time served during Henderson's 180-day intermediate sanction. Henderson timely appealed.

On appeal, Henderson first claims the district court erred in failing to award jail credit for 105 days of the 180-day intermediate sanction he was ordered to serve while on probation. The State has conceded this claim and filed a second nunc pro tunc journal entry on January 24, 2019, which awarded credit for the extra 105 days. Thus, this issue has been resolved in Henderson's favor and we need not address it further.

Next, Henderson claims the district court erred in calculating his criminal history score by classifying his 2005 Mississippi conviction of burglary of a dwelling as a person felony instead of a nonperson felony, making his sentence illegal under K.S.A. 2018 Supp. 22-3504. Whether a sentence is illegal is a question of law over which an appellate court has unlimited review. State v. Neal , 292 Kan. 625, 630, 258 P.3d 365 (2011). Likewise, interpretation of a statute is a question of law subject to unlimited review. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

Henderson claims his sentence is illegal under K.S.A. 2018 Supp. 22-3504, which states in part:

"(1) The court may correct an illegal sentence at any time....
....
(3) 'Illegal sentence' means a sentence: Imposed by a court without jurisdiction; that does not conform to the applicable statutory provision, either in character or punishment; or that is ambiguous with respect to the time and manner in which it is to be served at the time it is pronounced. A sentence is not an 'illegal sentence' because of a change in the law that occurs after the sentence is pronounced ." (Emphasis added.)

We note that the 2019 Kansas Legislature amended K.S.A. 22-3504. L. 2019, ch. 59, § 15. The amendment became effective on publication in the Kansas Register on May 23, 2019. The statute now provides in part:

"(a) The court may correct an illegal sentence at any time while the defendant is serving such sentence ....
....
"(c) For the purpose of this section:
(1) 'Illegal sentence' means a sentence: Imposed by a court without jurisdiction; that does not conform to the applicable statutory provision, either in character or punishment; or that is ambiguous with respect to the time and manner in which it is to be served at the time it is pronounced. A sentence is not an 'illegal sentence' because of a change in the law that occurs after the sentence was pronounced.
(2) 'Change in the law' means a statutory change or an opinion by an appellate court of the state of Kansas, unless the opinion issued while the sentence is pending an appeal from the judgment of conviction.
"(d) The amendments made to this section by this act are procedural in nature and shall be construed and applied retroactively. " (Emphasis added.)

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State v. Henderson, 447 P.3d 986 (kanctapp 2019).

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