                          NOT DESIGNATED FOR PUBLICATION

                                             No. 121,789

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                            Appellant,

                                                   v.

                                         SIDNEY W. CLARK,
                                             Appellee.


                                  MEMORANDUM OPINION


       Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed April 17, 2020.
Sentence vacated and case remanded with directions.


       Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant.


       Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.


Before POWELL, P.J., HILL and STANDRIDGE, JJ.


       POWELL, J.: This appeal marks the parties' second trip to our court to resolve how
to properly score Sidney W. Clark's 2000 Oklahoma conviction for placing bodily fluids
upon a government employee for criminal history purposes. For reasons we will explain,
the district court got it right the first time when it scored this conviction as a person
felony.


       Shifting sentencing jurisprudence emanating from the Kansas Supreme Court
compelled our earlier decision in State v. Clark, No. 119,076, 2019 WL 1746772, at *6
(Kan. App. 2019) (unpublished opinion), which held, relying on State v. Wetrich, 307


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Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018), that the identical-or-narrower rule required
Clark's Oklahoma conviction to be scored as a nonperson felony. However, on the same
day we issued our decision in Clark, our Supreme Court released State v. Murdock, 309
Kan. 585, 439 P.3d 307 (2019) (Murdock II), which limited Wetrich's application by
clarifying that the legality of a sentence under K.S.A. 2018 Supp. 22-3504 is controlled
by the law in effect at the time the sentence was pronounced.


       Because Wetrich's identical-or-narrower rule had not been issued at the time Clark
was originally sentenced in 2005, it was inapplicable at both Clark’s original 2005
sentencing and, our earlier decision notwithstanding, his August 2019 resentencing.
Nevertheless, the district court felt bound by our mandate to reclassify Clark's Oklahoma
conviction as a nonperson felony anyway, thus reducing Clark's criminal history score to
a C. While we appreciate the district court's adherence to our mandate, a change in the
law imposed by a controlling authority trumps any such mandate, and the district court
erred in sentencing Clark in accordance with Wetrich. Accordingly, we must again vacate
Clark's sentence and remand for resentencing.


                       FACTUAL AND PROCEDURAL BACKGROUND


       Pursuant to a plea agreement, on February 18, 2005, Clark pled guilty to one count
of aggravated criminal sodomy, a severity level 2 person felony. In return for his guilty
plea, the State dismissed the additional pending charges of one count of aggravated
kidnapping, two counts of rape, three counts of aggravated criminal sodomy, one count of
aggravated burglary, and one count of robbery.


       At Clark's sentencing on June 9, 2005, the district court determined his criminal
history score was B based in part on a 2000 Oklahoma conviction for placing bodily
fluids on a government employee, which the district court scored as a person felony.



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After denying Clark's motion for a downward departure, the district court sentenced
Clark to the aggravated term of 460 months in prison.


       On April 25, 2017, Clark filed a pro se motion to correct illegal sentence under
K.S.A. 22-3504. Clark argued his Oklahoma conviction for placing bodily fluids on a
government employee under Okla. Stat. tit. 21, § 650.9 (1999), was not comparable to
any Kansas criminal statute. Clark alleged that after law enforcement sprayed him with
pepper foam spray, he was involuntarily spitting and retching. Clark claimed these
involuntary acts led to his conviction for placing bodily fluids on a government employee
under the Oklahoma statute. Clark identified K.S.A. 2003 Supp. 21-3413(a)(1) as the
Kansas statute most likely to be used for comparison, which criminalizes battery against a
law enforcement officer and is a person crime. In arguing that the statutes were not
comparable, Clark emphasized the fact the Kansas statute required intentional contact
with another person when done in a rude, insulting, or angry manner. See K.S.A. 2003
Supp. 21-3413; K.S.A. 2003 Supp. 21-3412(a)(2). Clark argued his accidental act of
spitting would not likely have qualified as "rude, insulting, or angry behavior" under the
Kansas statute.


       The district court disagreed, holding Okla. Stat. tit. 21, § 650.9, is comparable to
K.S.A. 2003 Supp. 21-3413(a)(3), battery against a law enforcement officer. In its written
decision, the district court stated: "[T]he statutes do not need to be identical with
identical elements. The statutes being compared must be comparable." The district court
found the statutes comparable and ruled Clark's Oklahoma offense was properly
classified as a person felony for criminal history purposes.


       Clark successfully appealed to this court, and we vacated his sentence and
remanded for resentencing with directions to reclassify his Oklahoma conviction as a
nonperson offense for criminal history purposes in accordance with the ruling in Wetrich.
Clark, 2019 WL 1746772, at *6.


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       The State did not file a petition for review, and a mandate was issued. On remand,
a new presentence investigation (PSI) report was prepared showing Clark's criminal
history score to be C with a presumptive prison range of 194-216 months. Clark's prior
Oklahoma conviction for placing bodily fluids upon a government employee was scored
as a nonperson felony.


       Resentencing was scheduled for the morning of July 12, 2019. At the start of the
hearing, the district court expressed confusion as to the rapidly evolving caselaw
regarding the applicability of Wetrich. The district court decided to continue the hearing
to allow the parties to present their positions based on the new caselaw, stating:


               "So what the court is going to do to make sure we do this correctly it's going to
       be set for a special setting and counsel will be prepared to present to the court what they
       think the present law is in regards to in state/out of state convictions based upon Wetrich
       and the multitude of decisions that have been handed down in the last month or so. Plus
       the new statutory amendment."


       Both Clark and the State filed written memoranda regarding their arguments on
the appropriate law for resentencing.


       On August 16, 2019, the district court resentenced Clark to 216 months in prison.
Over the State's objection, the district court applied the holding in Wetrich and ruled
Clark's criminal history score should be C in accordance with the mandate from out court.
The district judge stated:


               "Just for purposes of the record, the Court of Appeals remanded with directions
       to this court to resentence the defendant as a criminal history score [C]. The court, when I
       originally sentenced Mr. Clark, believed the criminal history score was B as did both the
       state and defense counsel at that time.




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               "There's been a number of changes in case law and the statutory law over the
       years concerning criminal history score including very recent. I asked both counsel to
       brief the issue of the effect of the new case law and/or new statutory law. The bottom line
       is, this court does not in its view have the authority to overrule the Kansas Court of
       Appeals and I was specifically directed by the Kansas Court of Appeals to sentence the
       defendant as a criminal history score C.


               "I gave the maximum sentence I could before. The maximum sentence is clearly
       applicable now. But I think the only option the state has is to appeal the court's ruling to
       either the Court of Appeals and see if the Court of Appeals, a different panel thinks they
       can overrule themselves or the Kansas Supreme Court. But I do not find I have the
       authority to overrule the Kansas Court of Appeals."


       The State timely appeals the district court's sentence.


The district court erred in applying the identical-or-narrower rule at resentencing.


       The State argues Clark's sentence is illegal because the district court erroneously
classified his 2000 Oklahoma conviction for placing bodily fluids upon a government
employee under Okla. Stat. tit. 21, § 650.9 as a nonperson felony. The State contends the
district court erroneously applied the identical-or-narrower rule as set forth in Wetrich,
and it asks us to reinstate the original sentence.


       The question of whether a district court has properly classified a prior conviction
as a person or nonperson offense involves the interpretation of the Kansas Sentencing
Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq. Issues of statutory
interpretation and the classification of prior crimes for criminal history purposes, as well
as the determination of whether a sentence is illegal, are all questions of law subject to
unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019).




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       Relevant here is the statute defining an illegal sentence, K.S.A. 2019 Supp. 22-
3504(c), which provides:


               "(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."


       Our Legislature has deemed the 2019 amendments to K.S.A. 22-3504(c) to be
procedural and retroactive. See K.S.A. 2019 Supp. 22-3504(d). As noted, it also clarified
a change in the law encompasses opinions "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." K.S.A 2019 Supp. 22-3504(c)(2). As such, our Legislature has clearly
indicated a sentence that is legal when pronounced does not become illegal due to a
change in the law.


       The criminal history worksheet portion of Clark's PSI report includes a 2000
Oklahoma conviction for "Placing Bodily Fluids upon Government Employee" under
Okla. Stat. tit. 21, § 650.9. When classifying an out-of-state conviction for criminal
history purposes, the first step is to determine whether the convicting jurisdiction
classifies the prior conviction as a felony or misdemeanor. See K.S.A. 2019 Supp. 21-
6811(e)(2). The parties do not dispute the Oklahoma crime is a felony under Okla. Stat.
tit. 21, § 650.9.




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       The second step requires a determination of whether the crime should be classified
as a person or nonperson offense. This is done by comparing the prior out-of-state
conviction with the comparable Kansas offense in effect at the time the defendant
committed the current crime of conviction. See K.S.A. 2019 Supp. 21-6811(e)(3); State v.
Keel, 302 Kan. 560, 590, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). The
comparable Kansas offense need not be identical. State v. Vandervort, 276 Kan. 164, 179,
72 P.3d 925 (2003). If there is no comparable Kansas offense, then the prior out-of-state
conviction must be classified as a nonperson crime. K.S.A. 2019 Supp. 21-6811(e)(3).


       Here, neither party addresses the merits of the comparability of the Oklahoma
crime to the Kansas crime. However, at Clark's original sentencing in 2005, the district
court ruled Clark's 2000 Oklahoma conviction for placing bodily fluids upon a
government employee, contrary to Okla. Stat. tit. 21, § 650.9, was comparable to K.S.A.
2003 Supp. 21-3413 (now K.S.A. 2019 Supp. 21-5413 [c][1]), battery against a law
enforcement officer, a person crime, thus requiring the Oklahoma crime to be classified
as a person felony. We agree because even though Oklahoma's statute does not contain an
intent element, it involves a touching comparable to our battery statute. See State v.
Davis, No. 116,749, 2017 WL 6625550, at *3 (Kan. App. 2017) (unpublished opinion)
(Oregon statute criminalizing throwing bodily substances at corrections officers
comparable to Kansas person crime of battery). Thus, the district court got it right the
first time when it classified the Oklahoma offense as a person felony.


Clark claims the district court's ruling should stand.


       Nevertheless, Clark provides two reasons why we should allow the district court's
resentencing order to stand.


       First, Clark relies on the mandate rule, arguing that because the State did not file a
petition for review from this court's holding in Clark and the mandate was subsequently


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issued, the district court was bound to follow that mandate. The question of whether a
district court properly complied with the mandate rule presents an issue of law subject to
unlimited review. State v. Soto, 310 Kan. 242, 256, 445 P.3d 1161 (2019).


       Under the mandate rule, an appellate court's mandate along with its accompanying
opinion become part of the judgment of the court if it is determinative of the action or
controls any further proceedings in the district court. K.S.A. 60-2106(c). Generally, a
district court's jurisdiction on remand is limited to compliance with the holding as set
forth in the appellate court's opinion. See 310 Kan. at 256. In State v Collier, 263 Kan.
629, Syl. ¶ 4, 952 P.2d 1326 (1998), our Supreme Court pronounced a district court
"must implement both the letter and spirit of the mandate, taking into account the
appellate court's opinion and the circumstances it embraces."


       However, another panel of our court noted:


       "[T]he Tenth Circuit Court of Appeals recognizes an exception to . . . the mandate rule[]
       when there has been an intervening change of applicable law by a controlling authority.
       In Grigsby v. Barnhart, 294 F.3d 1215, 1218-19 (10th Cir. 2002), the court held that
       intervening clarifying legislation justified a court's reconsideration of remand
       instructions." State v. Montanez, No. 114,473, 2017 WL 749031, at *2 (Kan. App. 2017)
       (unpublished opinion).


To the extent Clark is arguing the law of the case doctrine compelled the district court’s
ruling, the same exception applies. See State v. Kleypas, 305 Kan. 224, Syl. ¶¶ 3, 4, 382
P.3d 373 (2016) (recognizing exception to law-of-the-case doctrine—similar to mandate
rule—when controlling authority has made contrary decision regarding law at issue after
it was originally decided).


       Clark's resentencing took place on August 16, 2019. Relying on State v. Dawson,
310 Kan. 112, 444 P.3d 914 (2019), and State v. Tauer, 310 Kan. 1, 444 P.3d 936 (2019),


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the State argues recent changes to caselaw compelled the district court to classify Clark's
2000 Oklahoma conviction as a person felony and reimpose the original 460-month
prison sentence. In those cases, our Supreme Court held the legality of a sentence is
"determined by the law in effect at the time the sentence was pronounced." Dawson, 310
Kan. at 112, Syl. ¶ 2; see Tauer, 310 Kan. 1, Syl.


       Prior to Clark's resentencing, our Supreme Court's decisions in Murdock II, State
v. Newton, 309 Kan. 1070, 442 P.3d 489 (2019), and State v. Weber, 309 Kan. 1203, 442
P.3d 1044 (2019), clarified the proper application of the identical-or-narrower rule as set
forth in Wetrich. In Murdock II, the Kansas Supreme Court clarified the legality of a
sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence
was pronounced. 309 Kan. at 592. And in Newton and Weber, our Supreme Court
determined Wetrich was a change in the law as contemplated by Murdock II. See Newton,
309 Kan. at 1073-74; Weber, 309 Kan. at 1049. As such, we apply an exception to the
mandate rule here, finding our Supreme Court's clarified identical-or-narrower rule as set
forth in Wetrich did not apply to the facts of this case. Accordingly, due to clarifying
caselaw, we find the district court was no longer bound to follow our court's mandate
when resentencing Clark.


       Second, Clark alternatively argues even if Wetrich constituted a change in the law,
the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which was decided five years before Clark's
original sentencing, required the same interpretation of K.S.A. 21-4711(e) as set forth in
Wetrich. Specifically, Clark claims the doctrine of constitutional avoidance mandates the
use of the identical-or-narrower rule when comparing out-of-state crimes to Kansas
crimes for criminal history classification because the court should try to avoid a
subsequent decision that K.S.A. 21-4711(e) is unconstitutional. We reject Clark's
argument because our Supreme Court has stated Wetrich was a change in the law and
restricted its holding to sentences imposed after the holding in Wetrich or to those cases


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pending on direct appeal. See Murdock II, 309 Kan. at 591-92 (distinguishing parties who
may benefit from change in law during pendency of direct appeal from parties moving to
correct an illegal sentence).


       Clark's sentence is vacated, and the case is remanded for resentencing with the
correct criminal history score. On remand, the district court should classify Clark's prior
convictions in accordance with the law in effect on June 5, 2005, the date of his original
sentence.


       Sentence vacated and case remanded for resentencing.




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