              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 114,814

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                  KENYON T. CAMPBELL,
                                       Appellant.


                              SYLLABUS BY THE COURT

1.
       The general rule in Kansas is that an overruling decision is applied to all similar
cases pending as of the date of the overruling decision, regardless of when the cause of
action accrued. Consequently, appeals not yet final at the time of the filing of State v.
Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016), are
governed by that decision and not the decision it overruled, State v. Murdock, 299 Kan.
312, 323 P.3d 846 (2014).


2.
       Application of statutes in effect at the time a defendant commits a crime does not
violate the Ex Post Facto Clause of the United States Constitution.


3.
       Classifying a crime as a person or nonperson offense does not require an offense-
specific factual determination or another type of historical factfinding that gives rise to
the right to a jury trial under the Sixth Amendment to the United States Constitution.
Rather, the determination is a question of law that turns solely on the application of the
Kansas Sentencing Guidelines Act—namely, a comparison of the statutory elements of
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the prior crime to the statutory elements of comparable offenses as codified at the time
the current offense was committed.


4.
        When presented with a motion to correct an illegal sentence under K.S.A.
22-3504, a district court should conduct a preliminary examination of the motion to
determine whether substantial questions of law or fact are raised. This review does not
constitute a "proceeding," which is the key word in K.S.A. 22-3504(1) triggering the
right to counsel and the movant's right to be present. If substantial questions of law or
fact are not found, the motion may be denied without a "proceeding"—i.e., a hearing at
which the movant's presence would be required.


        Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed December 15,
2017. Affirmed.


        Carl Maughan, of Maughan Law Group, of Wichita, was on the brief for appellant.


        Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.


The opinion of the court was delivered by


        LUCKERT, J.: In 1996, Kenyon T. Campbell was convicted of first-degree murder,
an off-grid crime under the Kansas Sentencing Guidelines Act (KSGA), and multiple on-
grid crimes. When the district court sentenced Campbell for his on-grid crimes, the court
classified several out-of-state convictions as person felonies for purposes of computing
Campbell's criminal history score. In 2015, Campbell moved to correct what he claimed
was an illegal sentence under State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014)
(all pre-1993 out-of-state convictions must be classified as nonperson felonies when
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calculating a defendant's criminal history score), overruled by State v. Keel, 302 Kan.
560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). The district court
summarily denied relief, and Campbell appealed.


       We reject each claim of error asserted on appeal and affirm. Specifically, we hold:
(1) Campbell is not entitled to have his out-of-state convictions classified as nonperson
offenses under Murdock, which was overruled by Keel; (2) application of Keel to
Campbell's motion does not violate the Ex Post Facto Clause of the United States
Constitution; (3) the KSGA's person/nonperson classification of pre-KSGA offenses
presents a question of law and does not require factfinding that implicates the right to a
jury as guaranteed by the Sixth Amendment to the United States Constitution; and (4) the
district court did not deprive Campbell of a statutory right to a hearing when it summarily
denied relief.


                             FACTS AND PROCEDURAL HISTORY


       A jury convicted Campbell of committing, or participating in the commission of,
several offenses in Sedgwick County on March 22, 1996: first-degree murder,
aggravated kidnapping, aggravated criminal sodomy, kidnapping, attempted rape,
attempted kidnapping, and two counts of aggravated robbery. Campbell entered into a
sentencing agreement with the State in which he agreed to be sentenced to life in prison
for first-degree murder and to 300 months for aggravated kidnapping, with the 300
months to run concurrent with the life sentence. Campbell and the State further agreed to
postpone sentencing on the remaining counts in order to allow Campbell to fulfill his
agreement to cooperate in locating Ronald Etheridge, who was also accused of being
involved in the crimes, and to testify truthfully at Etheridge's trial. If Campbell fulfilled
his part of the agreement, the State committed to recommending a downward durational
departures on the sentences that had yet to be imposed.
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       Consistent with the agreement, the district court sentenced Campbell to life in
prison for the first-degree murder and to 300 months for the aggravated kidnapping
conviction. The court took sentencing on the other counts under advisement. In 2000,
more than three years after the original sentencing hearing and after Campbell refused to
testify at Etheridge's trial, the district court imposed sentence on the remaining counts:
77 months for the aggravated sodomy conviction, 51 months for each aggravated robbery
conviction, 51 months for the kidnapping conviction, 19 months for the attempted rape
conviction, and 34 months for the attempted aggravated kidnapping conviction. The
district court ordered each of these sentences to run consecutive to each other and
consecutive to his prior sentence for aggravated kidnapping.


       In sentencing Campbell on each of the convictions covered by the KSGA
sentencing grid, the district court considered Campbell's criminal history as scored on the
presentence investigation report (PSI). The PSI reported that Campbell had six prior
Illinois convictions. Four of those convictions—convictions for attempted robbery,
aggravated battery with a gun, and two counts of armed violence—were classified as
person felonies on the PSI. Two Illinois drug offenses were classified as nonperson
felonies. With these classifications, Campbell had a criminal history score of A. At the
time of sentencing, Campbell did not dispute his criminal history score.


       Campbell appealed, challenging his convictions and the district court's jurisdiction
to impose those sentences that had not been announced at the first sentencing hearing.
This court affirmed on direct appeal. State v. Campbell, 273 Kan. 414, 44 P.3d 349
(2002). In his direct appeal, Campbell did not challenge the calculation of his criminal
history.




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          Moving forward to 2014, this court decided Murdock, and Campbell soon
thereafter filed a motion to correct an illegal sentence. He argued his criminal history
score should have been calculated based on all of his Illinois convictions being
considered nonperson felonies. The district court denied his motion without a hearing.
The district court refused to apply Murdock retroactively and concluded Campbell had
waived any objections to his criminal history and was making an impermissible collateral
attack.


          Campbell requested and received permission to docket his appeal out of time with
the Court of Appeals. The case was transferred to this court under Administrative Order
101, which allows transfers to the appellate court with exclusive jurisdiction under
Kansas statutes. See K.S.A. 2016 Supp. 22-3601(b)(3) ("Any appeal permitted to be
taken from a district court's final judgment in a criminal case shall be taken directly to the
supreme court in the following cases: . . . [3] any case in which a maximum sentence of
life imprisonment has been imposed . . ." unless the case falls within one of several
exceptions, which do not include first-degree murder.); Kirtdoll v. State, 306 Kan. 335,
337, 393 P.3d 1053 (2017) ("A ruling on a motion to correct an illegal sentence, where
the sentence imposed for a homicide is imprisonment for life, is directly appealable to
this court.").


                                          ANALYSIS


          Campbell challenges his sentence as illegal under K.S.A. 22-3504(1), which
allows for correction of an illegal sentence at any time. Under this broad language, a
challenge to a defendant's criminal history can be raised on a motion to correct an illegal
sentence even if no challenge was stated at the time of the sentencing. Keel, 302 Kan. at
571.


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       In order to be considered illegal, a sentence must either (1) have been "imposed by
a court without jurisdiction"; (2) fail to "conform to the [applicable] statutory provisions";
or (3) be "ambiguous with respect to [the] time and manner in which it is to be served."
State v. Sims, 306 Kan. 618, 620, 395 P.3d 413 (2017); see L. 2017, ch. 62, § 9 (codifying
definition). The determination of whether a sentence meets one of these criteria presents
an issue of law, which this court reviews de novo. State v. Collins, 303 Kan. 472, 473,
362 P.3d 1098 (2015).


       With these general principles in mind, we turn to Campbell's four arguments.


   1. Campbell is not entitled to resentencing based on Murdock.


       Campbell first asserts his sentence is illegal because his criminal history was
scored in a manner that is inconsistent with Murdock, which held all out-of-state pre-
1993 crimes must be classified for criminal history purposes as nonperson felonies.
Murdock, 299 Kan. at 319. Campbell recognizes that, after the district court proceedings
in this case, this court overruled Murdock in Keel by holding that "a pre-KSGA
conviction and/or adjudication must be classified as either a person or nonperson offense
by comparing the criminal statute under which the prior offense arose to the comparable
post-KSGA criminal statute." (Emphasis added.) Keel, 302 Kan. at 581. We further held
"the comparable post-KSGA criminal statute is the one that was in effect at the time the
current crime of conviction was committed." 302 Kan. at 581.


       Campbell does not argue that the computation of his criminal history score is
illegal under Keel. Rather, despite our decision in Keel, Campbell asks us to apply
Murdock, which would be more favorable to him. But "[t]he general rule in Kansas is that
an overruling decision is applied to all similar cases pending as of the date of the
overruling decision, regardless of when the cause of action accrued." Sims, 306 Kan. at
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622; State v. Collier, 306 Kan. 521, 525, 394 P.3d 1164 (2017). This means Keel, not
Murdock, controls the outcome of Campbell's motion to correct an illegal sentence.


       In addition, Campbell "respectfully sug[g]ests this matter should be reconsidered
and therefore respectfully submits the arguments in support of the reversal of the district
court's decision on this case based upon Murdock, in order to preserve the arguments and
issues for future review." We take this as a request that we reconsider Keel. But, as we
will more fully discuss, Campbell does not present any arguments that persuade us Keel
was wrongly decided, especially in light of recent decisions in which we have reaffirmed
Keel and its analysis. See Sims, 306 Kan. at 620-22; Collier, 306 Kan. at 522, 524-26.


       Murdock does not control this appeal, and Campbell is not entitled to relief under
the holding in Keel.


       We pause to note that the 2017 Kansas Legislature amended K.S.A. 22-3504 so
that it now provides: "A sentence is not an 'illegal sentence' because of a change in the
law that occurs after the sentence is pronounced." L. 2017, ch. 62, § 9. But this provision
and its potential impact on this case were not discussed in the parties' briefs, which were
filed before the legislation became effective. See L. 2017, ch. 62, § 13. Given that, we
proceed with our analysis without consideration of the possible implications of this new
provision or of whether it can be applied in this appeal.


   2. Applying Keel does not violate the Ex Post Facto Clause.


       Second, Campbell invokes the Ex Post Facto Clause of the United States
Constitution to argue we should not retroactively apply Keel or legislation enacted in
response to Murdock. We recently rejected the same argument in Sims and Collier.


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       As we noted in those decisions, although the Keel court discussed the legislation
passed in response to Murdock, it did not decide Keel based on retroactive application of
that legislation, which is now codified at K.S.A. 2016 Supp. 21-6810(d) and (e). See
Sims, 306 Kan. at 622 (citing Keel, 302 Kan. at 591); Collier, 306 Kan. at 525 (same).
Instead, the Keel analysis was based on interpretation of K.S.A. 1993 Supp. 21-4710,
K.S.A. 21-4711, and other statutes adopted as part of the KSGA in 1993—statutes in
force at the time Danny Keel committed several crimes. See Keel, 302 Kan. at 576-80.
Relying on statutes in effect at the time a crime is committed eliminates the need for an
ex post facto analysis. See Sims, 306 Kan. at 622 ("Since Keel construed the statute
regarding person/nonperson classifications that was in effect at the time Sims committed
his aggravated battery offense, the 2016 statute is not being retroactively applied to
him."); Collier, 306 Kan. at 525 ("Keel's rationale also makes it unnecessary to address
Collier's argument that K.S.A. 2016 Supp. 21-6108[d] and [e] violate the Ex Post Facto
Clause . . . ."); see generally State v. Barnes, 278 Kan. 121, 129, 92 P.3d 578 (2004)
("The Ex Post Facto Clause of the United States Constitution forbids legislative
enactments which impose a punishment for an act which was not punishable when it was
committed or which impose additional punishments to those then prescribed.").


       Likewise, here, the 1993 statutes interpreted in Keel were those in effect when
Campbell committed crimes in 1996; they are not laws that increased the potential
punishment after Campbell's crimes were committed. Consequently, nothing
distinguishes Campbell's situation from either Sims or Collier, and Campbell's Ex Post
Facto Clause argument fails.


   3. Keel does not violate the Sixth Amendment.


       Next, Campbell argues for the first time on appeal that the classification of his
prior offenses as person or nonperson offenses violates the Sixth Amendment to the
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United States Constitution as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Alleyne v. United States, 570 U.S. 99, 133 S.
Ct. 2151, 2163-64, 186 L. Ed. 2d 314 (2013).


       This same argument was considered and rejected in Collier. There we noted that
classifying a crime as a person or nonperson offense does not require an offense-specific
factual determination or another "type of historical factfinding ordinarily at issue in
Apprendi cases"—that is, the type of factfinding that gives rise to the right to a jury trial
under the Sixth Amendment. Rather, the determination is "a question of law that turns
solely on the application of the KSGA—namely, a comparison of the statutory elements
of the prior crime to the statutory elements of comparable offenses as codified at the time
the current offense was committed." Collier, 306 Kan. at 528.


       The same conclusion applies here, and we reject Campbell's Sixth Amendment
argument.


   4. Summary denial was appropriate.


       Finally, Campbell argues the district court erred by failing to have him present at a
hearing to consider his motion to correct an illegal sentence. He contends the plain
language of K.S.A. 22-3504(1) grants him the right to a hearing on his motion, at which
he is entitled to be personally present and to have the assistance of counsel.


       We note that the 2017 amendments to K.S.A. 22-3504 include changes to the
language on which Campbell relies. The statute now reads: "Unless the motion and the
files and records of the case conclusively show that the defendant is entitled to no relief,
the defendant shall have a right to a hearing, after reasonable notice to be fixed by the
court, to be personally present and to have the assistance of counsel in any proceeding for
                                              9
the correction of an illegal sentence." But the amendments did not become effective until
after Campbell's hearing. See L. 2017, ch. 62, § 13 (amendments effective on
publication). Consequently, we consider the statute as it was worded at the time of
Campbell's hearing.


       Construing the language as previously written, this court has consistently directed
district courts considering a motion to correct an illegal sentence to conduct a preliminary
examination of the motion to determine whether substantial questions of law or fact are
raised by a motion. See State v. Gray, 303 Kan. 1011, 1013, 368 P.3d 1113 (2016). This
review does not trigger the right to counsel and the movant's right to be present. See State
v. Duke, 263 Kan. 193, 196, 946 P.2d 1375 (1997). If substantial questions of law or fact
are not found, the motion may be denied without a "proceeding"—i.e., a hearing at which
the movant's presence would be required. 263 Kan. at 196.


       Here, the plain language of the district court's order indicates a preliminary review
was conducted and the court concluded no hearing need be held: "[I]t is hereby the Order
of this Court that the defendant's Motion(s) to Correct Illegal Sentence is denied without
hearing." (Emphasis added.) Under the law that applied at the time of Campbell's
hearing, he had no right to be present for the court's preliminary review or to demand a
hearing at which he could be present.


       Affirmed.




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