                                        No. 113,189

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                              v.

                                   MICHAEL R. MARTIN,
                                       Appellant.


                              SYLLABUS BY THE COURT

1.
       K.S.A. 22-3504(1) provides that a 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.


2.
       An illegal sentence under K.S.A. 22-3504(1) 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.


3.
       Generally, when 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.




                                              1
4.
       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.


5.
       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.


6.
       Subject to limited exceptions, 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.


7.
       Generally, a defendant may not file a motion to correct an illegal sentence based
on constitutional challenges to his or her sentence. 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. Under K.S.A. 22-
3504(1), Kansas courts have jurisdiction to correct an illegal sentence at any time.


8.
       A claim under State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), may be
brought in a motion to correct illegal sentence even when the time for direct appeal has
passed and the defendant's sentence is final. The general rule prohibiting retroactive


                                              2
application of an appellate court decision is superseded by the legislative directive in
K.S.A. 22-3504(1) that courts may correct an illegal sentence at any time.


        Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge. Opinion filed March 4,
2016. Sentence vacated and case remanded with directions.


        Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.


        Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before MALONE, C.J., SCHROEDER, J., and BURGESS, S.J.


        MALONE, C.J.: Michael R. Martin appeals the district court's denial of his motion
to correct illegal sentence. Specifically, Martin argues that the district court erred when it
classified his two 1990 Kansas juvenile adjudications for burglary as person felonies for
criminal history purposes, resulting in an illegal sentence. Martin claims he is entitled to
relief under our Kansas Supreme Court's holding in State v. Dickey, 301 Kan. 1018, 350
P.3d 1054 (2015). The State responds by arguing that the district court properly denied
the motion to correct illegal sentence because Martin's sentence was correctly imposed in
2012. The State argues that the doctrine of res judicata bars Martin's claim because he
could have challenged his criminal history classification on direct appeal but failed to do
so. The State also argues that the holding in Dickey should not be retroactively applied to
Martin's case which was final before our Supreme Court's decision in Dickey. For the
reasons stated herein, we reject the State's claims that Martin is procedurally barred from
obtaining relief under the holding in Dickey. Thus, we vacate Martin's sentence and
remand for resentencing with directions to apply the correct criminal history score.




                                                    3
                        FACTUAL AND PROCEDURAL BACKGROUND

       On September 17, 2012, Martin pled guilty to one count of possession with intent
to distribute marijuana and two counts of criminal possession of a firearm. The district
court ordered a presentence investigation (PSI) report which indicated that Martin was in
criminal history category A based in part on two 1990 Kansas juvenile adjudications for
burglary of a residence which were scored as person felonies. The district court held a
sentencing hearing on November 14, 2012, and Martin did not object to his criminal
history score. The district court imposed a controlling sentence of 49 months'
imprisonment with 24 months' postrelease supervision. The record does not reflect that
Martin filed a direct appeal.


       On June 16, 2014, Martin filed a motion to correct illegal sentence. In the motion,
Martin argued 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 two 1990 Kansas juvenile adjudications for burglary should have been
classified as nonperson offenses. Therefore, Martin argued his criminal history score
should have been C instead of A and he should be resentenced with the correct criminal
history score.


       On October 23, 2014, Martin filed a second motion to correct illegal sentence. In
this motion, Martin argued that based on this court's decision in State v. Dickey, 50 Kan.
App. 2d 468, 329 P.3d 1230 (2014), aff'd 301 Kan. 1018, his two 1990 Kansas juvenile
adjudications for burglary should have been classified as nonperson offenses. Martin
again alleged that this would have resulted in his criminal history score being C instead
of A, making the sentence imposed by the district court for his convictions illegal. The
State filed a response to both motions and raised many arguments, including arguments



                                             4
that the holdings in Murdock and Dickey should not be retroactively applied to Martin's
case.


        On December 1, 2014, the district court summarily denied both motions. The
district court ruled that Murdock only applied to out-of-state convictions, did not apply on
a collateral attack, and did not apply retroactively. The district court also ruled that this
court's decision in Dickey only applied to out-of-state convictions, did not apply on a
collateral attack, and did not apply retroactively. Finally, the district court noted that
Martin was not entitled to any relief because he stipulated to his criminal history score at
sentencing. Martin appealed the denial of both motions.


                                               ANALYSIS

        On appeal, Martin has abandoned his motion to correct 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, Martin is now seeking relief only under
his second motion to correct illegal sentence based on Dickey.


        K.S.A. 22-3504(1) provides that "[t]he 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.


        Martin contends that Dickey is dispositive with regard to his 1990 Kansas juvenile
adjudications for burglary. We will briefly review our Supreme Court's decision in that

                                                     5
case. 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 as 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.




                                                    6
       Applying Apprendi and Descamps, the Dickey court determined the burglary
statute in effect when the defendant committed his prior burglary did not require evidence
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, Martin is not barred from challenging the classification of his
1990 Kansas juvenile adjudications for burglary as person felonies merely because he
stipulated to his criminal history score at sentencing. Similar to Dickey, the statute under
which Martin was adjudicated for burglary in 1990 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. 1990 Supp. 21-3715.


       Because the burglary statute in effect at the time Martin committed the burglaries
for which he was adjudicated did not contain a dwelling element, the district court's
person classification necessarily required judicial factfinding. Accordingly, the
classification of Martin's 1990 burglary adjudications as person felonies violates his
constitutional rights as described in Apprendi and Descamps and as applied by the
Kansas Supreme Court in Dickey.


                                                     7
May a claim under Dickey be brought in a motion to correct illegal sentence when the time
for direct appeal has passed and the defendant's sentence is final?


       The State does not dispute the contention that if Martin was being sentenced
today, his two 1990 Kansas juvenile adjudications for burglary would be scored as
nonperson offenses under the holding in Dickey. Instead, the State argues that Martin is
procedurally barred from bringing his claim for two reasons. First, the State maintains
that the doctrine of res judicata bars Martin's claim. Specifically, the State argues that
Martin could have challenged the classification of his juvenile adjudications for burglary
as person felonies on direct appeal and he has waived the issue because he failed to do so.
Second, the State argues that the holding in Dickey should not be retroactively applied to
Martin's case which was final before Dickey was decided. Thus, the central issue in this
appeal is whether a claim under Dickey may be brought in a motion to correct illegal
sentence when the time for direct appeal has passed and the defendant's sentence is final.


       The State first argues that the doctrine of res judicata bars Martin's claim. "The
applicability of res judicata is a question of law over which this court has unlimited
review." State v. Robertson, 298 Kan. 342, 344, 312 P.3d 361(2013).


               "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.' [Citations omitted.]"State v. Kingsley, 299 Kan. 896,
       901, 326 P.3d 1083 (2014).


       "The essence of the doctrine of res judicata is that issues 'once finally determined
. . . cannot afterwards be litigated.'" 299 Kan. at 901. Four elements are required to apply
the doctrine of res judicata to procedurally bar a claim: (1) the same claim; (2) the same
parties; (3) the claim at issue was or could have been raised in the previous appeal; and
(4) there was a final judgment on the merits. 299 Kan. at 901. The State argues that
                                                    8
Martin could have raised his current challenge to his sentence in a direct appeal and, by
failing to do so, he has waived it. Martin has not directly addressed the State's res judicata
argument. Nevertheless, when closely examined, the State's argument is not persuasive.


       As the State notes, Kansas appellate courts previously have applied the doctrine of
res judicata to motions to correct illegal sentences. See State v. Conley, 287 Kan. 696,
698, 197 P.3d 837 (2008) ("Res judicata applies to motions to correct illegal sentences
filed pursuant to K.S.A. 22-3504."). The State points to State v. Johnson, 269 Kan. 594,
602, 7 P.3d 294 (2000), in which our Supreme Court reiterated that a motion to correct
illegal sentence "may not be used as a vehicle to breathe new life into appellate issues
previously abandoned or adversely determined." The State argues that under Johnson,
Martin has abandoned this claim by not pursuing a direct appeal.


       Johnson is easily distinguishable because the issue that was barred by res judicata
in that case was whether the State acted at sentencing in a way that was inconsistent with
its plea bargain obligations. See 269 Kan. at 601. As the Johnson court noted, even if that
error occurred, it would not render a sentence illegal under K.S.A. 22-3504(1). 269 Kan.
at 601. Here, if Martin's criminal history score was miscalculated based upon an incorrect
classification of prior juvenile adjudications as person offenses, his sentence is illegal.
See State v. Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015) (stating the claim of
misclassification of prior convictions as person offenses "necessarily raise[s] a claim that
the current sentence is illegal because it does not comply with the applicable statutory
provision regarding the term of punishment authorized").


       The State provides no citation to a case in which a Kansas appellate court applied
the doctrine of res judicata or waiver to bar a claim when that claim, if true, would render
a sentence illegal and the claim had not been previously addressed on its merits. The
cases in which Kansas appellate courts have applied res judicata to motions to correct an
illegal sentence involve claims that previously were resolved on the merits or claims that

                                              9
would not render a sentence illegal, even if true. See, e.g., State v. Martin, 294 Kan. 638,
640-41, 279 P.3d 704 (2012) (barring through res judicata claim of illegal sentence that
was raised and denied at least six times previously), cert denied 134 S. Ct. 114 (2013);
Conley, 287 Kan. at 698 (A motion to correct illegal sentence "may not be used to
breathe new life into an appellate issue previously adversely determined." [Emphasis
added.]); Johnson, 269 Kan. at 601.


       Moreover, interpreting 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 that courts may correct an illegal sentence at any
time under K.S.A. 22-3504(1). As this court recently explained in an unpublished
decision, res judicata generally applies to all issues that were or could have been raised in
an appeal from a sentence or conviction. Angelo v. State, No. 109,660, 2014 WL
1096834, at *3 (Kan. App. 2014) (unpublished opinion), rev. denied 301 Kan. ___
(January 8, 2015). But the Angelo court also stated: "However, K.S.A. 22-3504(1)
provides an exception to this rule. If a sentence is illegal, then the court may correct an
illegal sentence at any time despite a defendant's failure to raise the issue on direct
appeal." 2014 WL 1096834, at *3. This court continued: "[If a] sentence is illegal, res
judicata does not apply and we have jurisdiction over the issue." 2014 WL 1096834, at
*4.


       Our Supreme Court took a similar position in State v. Neal, 292 Kan. 625, 631,
258 P.3d 365 (2011). The Neal court noted that although the defendant had not raised in
his direct appeal the issue of aggregation of prior convictions for criminal history
purposes, "the motion to correct illegal sentence is not subject to our general rule that a
defendant must raise all available issues on direct appeal." 292 Kan. at 631. Based on the
analysis in Neal and Angelo and because a broad application of res judicata would
contravene the clear directive of K.S.A. 22-3504(1), we decline to apply the doctrine of
res judicata or waiver to bar Martin's claim of an illegal sentence.

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       Next, the State argues that the holding in Dickey should not be "retroactively
applied" to cases, like Martin's, 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. Martin, however, brought his claim in a motion to correct illegal sentence
filed after his sentence had become final.


       "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
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.]"


       The State presumes that in order for the holding in Dickey to affect Martin's
sentence, this court must hold that Dickey is retroactively applicable under one of those
exceptions. Again, we find guidance in Neal. In that case, the defendant filed a motion to
correct illegal sentence under K.S.A. 22-3504(1) and raised a constitutional challenge to
his sentence, arguing that prior uncounseled misdemeanor convictions could not be
included in calculating his criminal history score. The Supreme Court led off the opinion
by discussing whether the defendant's motion was procedurally barred, i.e., whether

                                                    11
K.S.A. 22-3504(1) was a proper vehicle for his claim. The Supreme Court noted that it
has defined an illegal sentence as one imposed by a court without jurisdiction, a sentence
which does not conform to the statutory provision, either in character or in the term of the
punishment authorized, or a sentence which is ambiguous with regard to the time and
manner in which it is to be served. 292 Kan. at 630. The Supreme Court determined that
if either the crime severity level or the criminal history score is in error, a party can
challenge a sentence as being illegal. 292 Kan. at 631. The Supreme Court went on to
conclude:


               "Here, Neal's challenge to his criminal history score is necessarily a challenge to
       his sentence that the history score helped produce. If the history score is incorrect, it
       follows that his resulting sentence cannot conform with the statutory provision in the
       term of the punishment authorized, and, consequently, is an illegal sentence.
       Accordingly, K.S.A. 22-3504 is the proper vehicle for his claim. [Citation omitted.]" 292
       Kan. at 631.


       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
                                                     12
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. Thus, we conclude that
Martin is not procedurally barred from challenging the legality of his sentence under
Dickey.


       In the alternative, Martin argues that he is not asking for retroactive application of
Dickey; instead, in his reply brief, Martin argues that because the United States Supreme
Court's decision in Apprendi was in place well before his sentencing in 2012, "the
rationale in Apprendi should apply to the calculation of his criminal history score."
Martin's alternative argument has merit.


       In Dickey, our Supreme Court explicitly held: "[C]lassifying Dickey's prior
burglary adjudication as a person felony violates his constitutional rights as described
under Descamps and Apprendi." 301 Kan. at 1021. In its analysis of those constitutional
rights, the court began by examining Apprendi, clearly indicating that Apprendi was the
basis for the ultimate holding in Dickey. 301 Kan. at 1036-37. Descamps provided a
means by which to determine whether certain sentencing determinations violated
Apprendi, and Dickey applied that framework to Kansas criminal history determinations.
301 Kan. at 1036-40.


       Because both Descamps and Dickey are applications of Apprendi and Martin's
current Kansas case arose well after Apprendi was decided, applying Dickey would not
require retroactive application of the caselaw identifying the constitutional rights at stake.
See State v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001) ("[T]he new constitutional
sentencing rule established by Apprendi must be applied here and in all cases pending on
direct appeal or which are not yet final or which arose after June 26, 2000."). Therefore,
even if this court were to consider Martin's challenge under the general principle that new
constitutional rules cannot be retroactively applied to cases on collateral review, that
principle does not bar Martin's claim.

                                             13
       In summary, based on the holding in Dickey, the district court erred at Martin's
sentencing by classifying his two 1990 Kansas juvenile adjudications for burglary as
person felonies for criminal history purposes. For the reasons stated herein, Martin may
bring his claim for relief under Dickey in a motion to correct illegal sentence even after
his sentence became final. Accordingly, we vacate Martin's sentence and remand for
resentencing with directions to classify Martin's two 1990 Kansas juvenile adjudications
for burglary as nonperson offenses for criminal history purposes.


       Sentence vacated and case remanded with directions.




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