                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                          No. 114,008

                                      STATE OF KANSAS,
                                          Appellee,

                                               v.

                                          ESSEX SIMS,
                                           Appellant.


                                SYLLABUS BY THE COURT

1.
          An appellate court reviews a district court's summary denial of a motion to correct
an illegal sentence under K.S.A. 22-3504(1) de novo because the reviewing court has the
same access to the motions, records, and files. The reviewing court, like the district court,
must determine whether the documents conclusively show the defendant is not entitled to
relief.


2.
          Whether a sentence is illegal is a question of law over which an appellate court has
unlimited review. An illegal sentence under K.S.A. 22-3504(1) is one: (a) imposed by a
court without jurisdiction; (b) that does not conform to the statutory provisions, either in
the character or the term of the punishment authorized; or (c) that is ambiguous with
respect to the time and manner in which it is to be served.


3.
          Under the KSGA, the legislature intended for all prior convictions and juvenile
adjudications, including those convictions and adjudications occurring before KSGA

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implementation, to be considered and scored for purposes of determining an offender's
criminal history score.


4.
        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. The comparable post-KSGA
Kansas criminal statute is the one in effect at the time the current crime of conviction was
committed.


5.
        The legislature has the power to affix punishments by designating prior offenses as
person or nonperson offenses for the purposes of calculating the sentence for a current
crime of conviction under the KSGA. The exercise of this legislative authority does not
implicate the constitutional protections described in Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).


        Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed June 9, 2017.
Affirmed.


        Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, and Sean M.A. Hatfield, of the
same firm, were on the brief for appellant.


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




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The opinion of the court was delivered by


       BILES, J.: Essex T. Sims was convicted of a 1995 aggravated battery and
sentenced under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1994 Supp. 21-
4701 et seq. In calculating his criminal history, the sentencing court included a 1992
juvenile adjudication for aggravated assault, which it classified as a person felony. In
2015, Sims moved to correct what he claimed was an illegal sentence. The district court
summarily denied relief. We reject each assertion of error and affirm.


       We hold: (1) Sims is not entitled to have the 1992 juvenile adjudication for
aggravated assault classified as a nonperson offense under State v. Murdock, 299 Kan.
312, 319, 323 P.3d 846 (2014) (regarding person/nonperson classification of prior out-of-
state offenses for purposes of calculating criminal history score), overruled by State v.
Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016); (2) the
KSGA's person/nonperson classification of pre-KSGA offenses does not violate the Sixth
Amendment's prohibition on nonjury factual findings that increase a defendant's
sentence; and (3) the district court did not deprive Sims of a statutory right to a hearing
when it summarily denied relief.


                        FACTUAL AND PROCEDURAL BACKGROUND

       A jury convicted Sims of felony murder, two counts of aggravated battery, one
count of criminal discharge of a firearm at an occupied dwelling, and one count of
criminal possession of a firearm. These crimes occurred in March 1995. The presentence
investigation revealed two prior offenses: a 1992 juvenile adjudication for theft scored as
a nonperson felony and a 1992 juvenile adjudication for aggravated assault scored as a
person felony.



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       The sentencing court imposed a life sentence for the felony-murder conviction.
Applying a criminal history score of "C," the district court imposed a consecutive 75-
month sentence for one of the aggravated battery convictions. This court affirmed his
convictions in State v. Sims, 262 Kan. 165, 936 P.2d 779 (1997).


       In 2015, Sims filed a motion to correct the aggravated battery sentence, arguing
the sentencing court used an incorrect criminal history score because the 1992 aggravated
assault was misclassified as a person crime. For that proposition, Sims relied on
Murdock. The district court summarily denied the motion. Sims timely appealed.
Jurisdiction is proper. See K.S.A. 2016 Supp. 22-3601(b)(3) (Supreme Court has
jurisdiction over a case in which life sentence is imposed); State v. Sims, 294 Kan. 821,
823-24, 280 P.3d 780 (2012) (Supreme Court has jurisdiction over motion to correct an
illegal sentence filed in a case in which defendant received a life sentence).


                                         ANALYSIS

       Under K.S.A. 22-3504(1), the court may correct an illegal sentence at any time.
Sims argues the district court erred summarily denying his motion because (1) his pre-
KSGA aggravated battery offense should be reclassified as a nonperson offense under
Murdock, 299 Kan. 312; (2) the person/nonperson classification cannot be applied to his
pre-KSGA crime under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000); and (3) the court's summary denial of his motion violated his
statutory right to a hearing.


       An illegal sentence under K.S.A. 22-3504(1) is one: (1) imposed by a court
without jurisdiction; (2) that does not conform to the statutory provisions, either in
character or the term of the punishment authorized; or (3) that is ambiguous with respect

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to time and manner in which it is to be served. State v. Gilbert, 299 Kan. 797, 801, 326
P.3d 1060 (2014).

Standard of review


       An appellate court reviews a district court's summary denial of a motion to correct
an illegal sentence under K.S.A. 22-3504(1) de novo because the appellate court has the
same access to the motions, records, and files. Gilbert, 299 Kan. at 801. The question on
appeal is whether the documents conclusively show the defendant is not entitled to relief.
299 Kan. at 801.


There is no relief under Murdock


       Sims first argues his prior aggravated assault offense must be reclassified under
Murdock. At the time of Sims' current aggravated battery offense, the KSGA required
that "[a]ll prior adult felony convictions . . . will be considered and scored" and that "[a]ll
juvenile adjudications which would constitute a person felony will not decay or be
forgiven." K.S.A. 21-4710(d)(2), (6). But the act was mostly silent on how to determine
whether a pre-KSGA offense should be scored as a person or nonperson crime. Keel, 302
Kan. at 572.


       In Murdock, the court held a defendant's out-of-state felony convictions for
robbery that were committed before the KSGA's 1993 enactment were improperly
classified as person felonies for sentencing purposes. 299 Kan. at 319. The applicable
KSGA provision required that prior out-of-state crimes be categorized as person or
nonperson offenses by referring to "comparable" Kansas offenses. 299 Kan. at 314
(quoting K.S.A. 21-4711[e]). But since the statute did not provide direction on whether to
compare the out-of-state offense to the comparable Kansas offense as codified at the time

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of the out-of-state offense or as codified at the time of the current conviction, the court
held the robbery convictions should have been classified as nonperson felonies. 299 Kan.
at 319. The court acknowledged "this rule results in the classification of all out-of-state
pre-1993 crimes as nonperson felonies." 299 Kan. at 319.


       But while Sims' illegal sentence appeal was pending, Murdock was overturned.
See Keel, 302 Kan. at 589. The Keel court held, "[T]he classification of a prior conviction
or juvenile adjudication as a person or nonperson offense for criminal history purposes
under the KSGA is determined based on the classification in effect for the comparable
Kansas offense at the time the current crime of conviction was committed." 302 Kan. at
590.


       In his brief, Sims acknowledges Keel. But he also notes the Keel mandate was
stayed pending a petition for writ of certiorari to the United States Supreme Court and
"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." Notably, the Court denied the petition for certiorari in Keel on January
11, 2016, and the mandate issued on January 29, 2016.


       Based on Keel, Sims' argument that Murdock should be extended to control the
classification of his in-state pre-KSGA offense fails. 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. State v. Waterberry, 248 Kan.
169, 172, 804 P.2d 1000 (1991); see also Murphy v. Nelson, 260 Kan. 589, 597, 921 P.2d
1225 (1996) (citing Waterberry, 248 Kan. 169, Syl. ¶ 1). Sims' motion was pending on
appeal when Keel was decided, and Sims advances no substantive argument why this
general rule should not apply and why Keel should not control his case.


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       Because Sims' case is controlled by Keel, the court need not address his argument
that K.S.A. 2016 Supp. 21-6810(d) and (e) violate the Ex Post Facto Clause of the United
States Constitution by statutorily altering the rule announced in Murdock and applying
that change retroactively. 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. Keel, 302 Kan. at 590-
91 (noting court's construction of statute in effect at time of defendant's crime to permit
person classification of pre-KSGA offenses obviated need for ex post facto analysis).


       Applying Keel, the sentencing court properly classified Sims' pre-KSGA
aggravated assault adjudication as a person felony. At the time Sims committed his
current crime, K.S.A. 21-3410 defined "aggravated assault" in a manner consistent with
the definition of the crime at the time of his prior offense and classified the crime as a
severity level 7, person felony. Compare K.S.A. 21-3410 (defining "aggravated assault"
as an assault committed with a deadly weapon; while disguised to conceal identity; or
with intent to commit any felony) with K.S.A. 21-3410 (Ensley 1988) (defining
"aggravated assault" as unlawfully assaulting or striking at another with a deadly weapon;
threatening or menacing another while disguised to conceal identity; or assaulting another
with intent to commit any felony). Cf. State v. Vandervort, 276 Kan. 164, 179, 72 P.3d
925 (2003) (holding closest Kansas "approximation" to out-of-state statute under which
conviction arose was comparable offense for classification purposes, rejecting argument
that elements must be identical, and noting "[f]or purposes of determining criminal
history, the offenses need only be comparable, not identical"), overruled on other
grounds by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015).




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The person/nonperson classification is a question of law


       Sims next argues his prior aggravated assault offense must be reclassified as a
nonperson crime because "[r]etroactively defining the past crimes of conviction as person
crimes changes the elements upon which the defendant was sentenced and increases the
sentence based upon [a] finding of fact beyond [the] mere existence of a prior criminal
conviction." This argument is without merit because the statutory person/nonperson
classification for a prior crime for the purposes of determining the crime's effect on the
sentence for the current conviction is within the legislature's power to affix punishment.
See State v. Collier, 306 Kan. ___, ___ P.3d ___ (No. 114,304, filed June 2, 2017), slip
op. at 10 (rejecting identical argument).


Summary denial was appropriate


       Finally, Sims argues the district court erred by denying his motion without a
hearing. He contends the plain language of "K.S.A. 22-3504 grants the defendant the
right to a hearing to correct an illegal sentence, and to be personally present with the
assistance of counsel." This argument is without merit because the motions, records, and
files in the present case conclusively show Sims is not entitled to relief. Therefore, the
district court did not err by summarily denying the motion. See State v. Gray, 303 Kan.
1011, 1013, 368 P.3d 1113 (2016) (When a defendant files a motion to correct illegal
sentence, a district court may dismiss the motion without a hearing or appointment of
counsel if "'"'"the motion, files, and records of the case conclusively show the defendant
is not entitled to relief."'"'"); see also Collier, slip op. at 11 (applying Gray to reject
identical arguments on facts nearly identical to Sims' case).


       Affirmed.


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