                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 118,848

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                        TIMOTHY C. BRYANT,
                                            Appellant.


                                   SYLLABUS BY THE COURT

1.
        The legality of a sentence challenged through a motion to correct illegal sentence
is judged as of the time the sentence was pronounced. Subsequent changes in the law do
not render a legal sentence illegal.


2.
        A motion to correct illegal sentence is an inappropriate vehicle for challenging the
constitutionality of a sentence.


        Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed November
27, 2019. Affirmed.


        Michelle A. Davis, of Kansas Appellate Defender Office, was on the briefs for appellant.


        Thomas C. Penland, assistant district attorney, Mark A. Dupree, Sr., district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.


The opinion of the court was delivered by


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       BEIER, J.: This case concerns Timothy Bryant's motion to correct an illegal
sentence. Because none of Bryant's attacks on his sentence have merit, we affirm the
district court judge's decision to deny Bryant's motion.


                        FACTUAL AND PROCEDURAL BACKGROUND

       A Wyandotte County jury convicted Bryant in August 2005 of first-degree murder
and aggravated robbery. The district judge found that Bryant's criminal history score was
"A" because of five prior person felonies. Three of these person felonies were 1981
Missouri convictions for second-degree burglary. Based on Bryant's criminal history
score, the district judge sentenced Bryant to life in prison for first-degree murder and a
consecutive 233 months for aggravated robbery.


       In June 2014, Bryant filed the motion underlying this appeal. He argued
unsuccessfully that his sentence was illegal under State v. Murdock, 299 Kan. 312, 313,
323 P.3d 846 (2014) (Murdock I), which was overruled by State v. Keel, 302 Kan. 560,
357 P.3d 251 (2015), the following year.


       Before this court, Bryant argues that his sentence is illegal under State v. Wetrich,
307 Kan. 552, 412 P.3d 984 (2018). Specifically, he challenges the classification of his
three 1981 Missouri second-degree burglaries as person crimes.


                                         DISCUSSION


       Under K.S.A. 22-3504, a defendant may move to correct an illegal sentence at any
time while the defendant is serving that sentence. See K.S.A. 2018 Supp. 22-3504(1); L.
2019, ch. 59, § 15. A sentence is illegal if it (1) is imposed by a court lacking jurisdiction,
(2) fails to conform to the applicable statutory provisions, or (3) is ambiguous with

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respect to the time and manner in which it is to be served. State v. Campbell, 307 Kan.
130, 133, 407 P.3d 240 (2017). Bryant argues that his sentence is illegal because it fails
to conform to applicable law.


       Whether a sentence is illegal is a question of law over which this court has
unlimited review. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011). Classification
of a defendant's prior crimes to determine his or her criminal history score involves
interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018
Supp. 21-6801 et seq., which is a question of law over which this court has unlimited
review. Wetrich, 307 Kan. at 555.


       Bryant's first argument is not that his sentence was illegal at the time it was
imposed. Rather, he argues that subsequent changes in the law have rendered his sentence
illegal. The illegal sentence statute itself and recent decisions from this court foreclose his
challenge.


       In April 2019, this court decided State v. Murdock, 309 Kan. 585, 591, 439 P.3d
307 (2019) (Murdock II), where we held:


       "[T]he legality of a sentence under K.S.A. 22-3504 is controlled by the law in
       effect at the time the sentence was pronounced. The legality of a sentence is fixed
       at a discrete moment in time—the moment the sentence was pronounced. At that
       moment, a pronounced sentence is either legal or illegal according to then-
       existing law. Therefore, for purposes of a motion to correct an illegal sentence,
       neither party can avail itself of subsequent changes in the law."


       The next month, our Legislature echoed the Murdock II holding by amending the
illegal sentence statute, K.S.A. 2018 Supp. 22-3504(3), to read:

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               "(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 is
       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 is issued while the
       sentence is pending an appeal from the judgment of conviction." L. 2019, ch. 59,
       § 15.


Our Legislature stated that these amendments were "procedural in nature" and "shall be
construed and applied retroactively." L. 2019, ch. 59, § 15. The amendment went into
effect on May 23, 2019.


       This court made the next relevant move, deciding in State v. Weber, 309 Kan.
1203, 1209, 442 P.3d 1044 (2019), that "Wetrich was a change in the law as
contemplated by Murdock II" and therefore inapplicable to sentences finalized before
Wetrich was decided. Weber, 309 Kan. at 1209. The Weber holding dooms Bryant's
Wetrich argument.


       Bryant also argues that his sentence is unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Descamps v. United
States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013); and Mathis v. United
States, 579 U.S. __, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016). He asserts the district
judge unconstitutionally engaged in fact-finding when he designated Bryant's 1981
Missouri second-degree burglaries as person felonies.


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       This court has often reiterated that "the definition of an illegal sentence does not
include a claim that the sentence violates a constitutional provision." State v. Dickey, 305
Kan. 217, 220, 380 P.3d 230 (2016) (Dickey II) (quoting State v. Moncla, 301 Kan. 549,
553-54, 343 P.3d 1161 [2015]). Under this rule, Bryant cannot use a motion to correct an
illegal sentence to argue that his sentence is unconstitutional. Dickey II, 305 Kan. at 220.


       Bryant failed to establish that his sentence was illegal at the time it was imposed.
He also cannot use a motion to correct an illegal sentence to raise his constitutional
arguments. The district judge was correct to deny Bryant's motion to correct an illegal
sentence.


       We affirm.


       MICHAEL J. MALONE, District Judge Retired, assigned.1




1
 REPORTER'S NOTE: Retired District Judge Malone was appointed to hear case No.
118,848 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas
Constitution to fill the vacancy on the court created by the retirement of Justice Johnson.


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