State v. Smith

NOT DESIGNATED FOR PUBLICATION

No. 118,042

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHAWN D. SMITH,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion on remand filed
May 15, 2020. Sentence vacated and case remanded with directions.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, P.J., POWELL, J., and MCANANY, S.J.

MALONE, J.: In this direct appeal from resentencing on remand, Shawn D. Smith
challenges the person classification for criminal history purposes of his 1993 South
Carolina burglary conviction. This case returns to the Court of Appeals on remand from a
Kansas Supreme Court order with directions "remand[ing] for reconsideration in light of
State v. Murdock, 309 Kan. 585, 439 P.3d 307 (2019) [(Murdock II)], State v. Weber, 309
Kan. 1203, 442 P.3d 1044 (2019), and State v. Newton, 309 Kan. 1070, 442 P.3d 489
(2019)." State v. Smith, No. 118,042, 2019 WL 7763406 (order dated December 27,
2019). For the reasons stated in this opinion, we vacate Smith's current sentence and

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remand for resentencing with directions to classify Smith's 1993 South Carolina burglary
conviction as a nonperson felony.

FACTUAL AND PROCEDURAL BACKGROUND

We begin by setting forth Smith's long and complicated history with the Kansas
court system. This factual summary will include a discussion of several Kansas Supreme
Court decisions which, according to Smith, affect the legality of his current sentence.

"In November 2006, a [Sedgwick County] jury found Smith guilty of aggravated
kidnapping. The presentence investigation (PSI) report calculated Smith's criminal
history score as 'C,' due in part to a 1993 South Carolina conviction identified as
'Burglary of Dwelling 2nd Degree' and classified as an adult person felony. Although
Smith objected to his PSI report on other grounds, he did not object to the classification
of the South Carolina burglary conviction. On December 19, 2006, the district court
sentenced Smith to 272 months' imprisonment with 36 months' postrelease supervision.
"Smith timely pursued a direct appeal. Relevant to his criminal history, Smith
argued only that the district court violated his Sixth and Fourteenth Amendment rights
under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
by using his prior convictions to increase his sentence without requiring the State to
prove them beyond a reasonable doubt to a jury. State v. Smith, No. 97,951, 2008 WL
4416029, at *7-8 (Kan. App. 2008) (unpublished opinion), rev. denied 288 Kan. 835
(2009). This court affirmed Smith's conviction and sentence, and our Supreme Court
denied Smith's petition for review [in 2009]." State v. Smith, No. 113,297, 2016 WL
1391767, at *1 (Kan. App. 2016) (unpublished opinion).

On May 2, 2014, the Kansas Supreme Court issued its opinion in State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (Murdock I), modified by Supreme Court
order September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251
(2015). Murdock I examined the general statutory provision that directed how to classify
prior out-of-state convictions for criminal history purposes. "The Murdock [I] court held
that when calculating a defendant's criminal history that includes out-of-state convictions
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committed prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA), the
out-of-state convictions must be classified as nonperson offenses." Smith, 2016 WL
1391767, at *1 (citing Murdock I, 299 Kan. 312, Syl. ¶ 5). The KSGA was enacted on
July 1, 1993. Keel, 302 Kan. at 566.

The month after Murdock I, Smith filed in Sedgwick County a pro se motion to
correct illegal sentence, arguing that his sentence in the Sedgwick County case was
illegal because under Murdock I, his 1993 South Carolina burglary conviction should
have been classified as a nonperson felony for criminal history purposes. Smith, 2016 WL
1391767, at *1. In November 2014, Smith's court-appointed attorney filed a motion to
correct illegal sentence that made the same argument.

The State responded, arguing that res judicata barred the application of Murdock I
and that courts should not apply Murdock I retroactively to already final cases because
(1) it created a new rule of law, (2) retroactive application would not serve the principles
underlying Murdock I, and (3) retroactive application would cause the State substantial
hardship. 2016 WL 1391767, at *2. In December 2014, the district court denied Smith's
motions and "'adopt[ed] the State's response as its findings of fact and conclusions of
law.'" 2016 WL 1391767, at *2. Smith timely appealed the denial of his motion to correct
illegal sentence; that appeal is hereinafter referred to as the Sedgwick County appeal.

Smith's Leavenworth County case

In April 2015, Smith pled no contest in Leavenworth County District Court to one
count of attempted trafficking in contraband in a correctional institution. State v. Smith,
No. 115,830, 2017 WL 3113188, at *1 (Kan. App. 2017) (unpublished opinion).

On May 22, 2015, while Smith's Sedgwick County appeal was pending in this
court and he was awaiting sentencing in the Leavenworth County case, the Kansas
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Supreme Court issued its opinion in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054
(2015) (Dickey I), which involved the person or nonperson classification of a pre-KSGA
Kansas burglary conviction. The Dickey I court held that an appellant may raise an illegal
sentence claim for the first time on appeal, including a challenge to "the classification of
his or her prior convictions and/or the resulting criminal history score used to sentence
him or her under the [KSGA]." 301 Kan. 1018, Syl. ¶ 3. It also held that in light of
K.S.A. 2014 Supp. 21-6811(d), which sets forth how to classify prior burglary
convictions for criminal history purposes, "the legal reasoning and holding of [Murdock
I] is inapplicable to determining whether a prior burglary conviction or adjudication
should be classified as a person or nonperson offense." Dickey I, 301 Kan. 1018, Syl. ¶ 6.

K.S.A. 2014 Supp. 21-6811(d) states that prior burglary convictions or
adjudications are classified for criminal history purposes as: (1) a person felony if the
prior burglary conviction or adjudication involved a dwelling, or (2) a nonperson felony
if the prior burglary conviction or adjudication did not involve a dwelling. The Dickey I
court held that determining whether a dwelling was involved must comply with the
constitutional principles against judicial fact-finding in the context of sentencing as
explained by the United States Supreme Court in Descamps v. United States, 570 U.S.
254, 186 L. Ed. 2d 438, 133 S. Ct. 2276 (2013). Dickey I, 301 Kan. at 1035-40.

Under Descamps and Dickey I, when classifying a prior burglary conviction as
person or nonperson, the threshold question is whether the burglary statute that defined
the prior crime of conviction or adjudication contained a single set of elements or
multiple sets of elements. If it contained a single set of elements, the sentencing court
examines only those elements—an approach called "the categorical approach"—and the
prior burglary is classified as a person crime only if those elements require the
involvement of a dwelling. If the prior statute was divisible, the question becomes
whether any of the alternatives under which the defendant could have been convicted
required the involvement of a dwelling. If yes, a sentencing court may employ the
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"modified categorical approach" and "examine a limited class of documents"—
"includ[ing] charging documents, plea agreements, jury instructions, verdict forms, . . .
transcripts from plea colloquies[, and] findings of fact and conclusions of law from a
bench trial"—to determine which set of elements formed the basis for the prior
conviction. Dickey I, 301 Kan. at 1038. If no, the prior burglary conviction must be
classified as a nonperson offense. 301 Kan. at 1039.

Smith's Leavenworth County case proceeded toward sentencing. As it had in the
Sedgwick County case, his PSI reflected the 1993 South Carolina burglary conviction
and scored it as a person felony. Smith objected, arguing that under the law in effect
when he entered his plea, it should be scored as a nonperson felony because it was
committed before the enactment of the KSGA. The district court held an evidentiary
hearing at which "the State presented evidence showing that the burglary was committed
on July 4, 1993," and the district court overruled Smith's objection but continued the
sentencing. Smith, 2017 WL 3113188, at *1.

On August 28, 2015, the Kansas Supreme Court overruled Murdock I in Keel. See
302 Kan. 560, Syl. ¶ 9. At this time, Smith had filed his initial appellate brief in the
Sedgwick County appeal but the State had not, and Smith had not yet been sentenced in
his Leavenworth County case. Keel held that no matter if a prior out-of-state conviction
occurred before or after the enactment of the KSGA, "the out-of-state conviction or
adjudication is classified to match the comparable post-KSGA criminal statute. If no
comparable post-KSGA criminal statute exists, then the out-of-state conviction or
adjudication must be classified as a nonperson offense." 302 Kan. at 581.

On October 13, 2015, Smith filed a pre-sentencing motion to withdraw plea in the
Leavenworth County case, arguing that he entered his plea because of a belief that his
South Carolina burglary would be classified as a nonperson offense, which would have
led to a lower criminal history score. The district court denied the motion.
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 On October 15, 2015, Smith filed his reply brief to this court in the Sedgwick
County appeal and argued for the first time that he was entitled to relief under Dickey I
because "the classification of his South Carolina burglary as a person offense for criminal
history purposes necessarily required judicial factfinding in violation of his constitutional
rights as described in Apprendi and Descamps." Smith, 2016 WL 1391767, at *2.
Pursuant to an order from this court, the parties filed supplemental briefs on the
applicability of Dickey I to Smith.

On November 6, 2015, the Leavenworth County District Court sentenced Smith to
19 months in prison for the trafficking contraband conviction, scoring the South Carolina
burglary conviction as a person felony. In January 2016, Smith filed an untimely notice
of appeal, and the district court granted his motion to appeal out of time.

Meanwhile, on April 8, 2016, this court filed its opinion in the Sedgwick County
appeal. See Smith, 2016 WL 1391767. Applying Dickey I, this court held that the South
Carolina burglary statute in effect when Smith committed the South Carolina burglary
was a divisible statute and "one of the permutations of elements under which Smith could
have committed burglary of a dwelling in South Carolina matches the elements of
Kansas' [statute defining] burglary of a dwelling" in effect when Smith committed his
crime of conviction in Sedgwick County. Smith, 2016 WL 1391767, at *9. This court
thus held that the modified categorical approach was the proper avenue to determine
whether the South Carolina burglary should be scored as a person or nonperson offense,
and it vacated Smith's Sedgwick County sentence and remanded for further proceedings.
2016 WL 1391767, at *9-10. Specifically, this court directed:

"The district court may examine the identified permissible documents in order to
determine the nature of the offense. If the district court cannot determine the basis of the
South Carolina burglary conviction or if it determines that it involved (1) entry of a
structure not considered a dwelling in Kansas or (2) an intent to commit a crime other
than a felony, theft, or sexual battery, then the South Carolina burglary must be classified

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 as a nonperson offense. If, however, the district court determines that the South Carolina
burglary conviction falls within the parameters of the crime of burglary of a dwelling
under applicable Kansas law, the South Carolina burglary should be classified as a person
offense." 2016 WL 1391767, at *10.

The Kansas Supreme Court denied the State's petition for review and the mandate
was issued by the clerk. See State v. Smith, 305 Kan. 1257 (2016). Thus, the order
vacating Smith's original Sedgwick County sentence became final and the case was
remanded to the district court for resentencing.

On remand, at a hearing on May 12, 2017, after considering exhibits offered by
the State at an earlier hearing to prove Smith's criminal history, including an affidavit and
arrest warrant for the South Carolina burglary conviction, the Sedgwick County District
Court again ruled that Smith's South Carolina burglary conviction should be classified as
a person felony for criminal history purposes. State v. Smith, 56 Kan. App. 2d 343, 346,
430 P.3d 58 (2018), vacated and remanded by Supreme Court order dated December 27,
2019. At the same hearing, the district court "resentenced Smith to 272 months in prison,
the same as his original sentence." 56 Kan. App. 2d at 346. Smith timely filed a notice of
appeal, but he did not try to docket the appeal until July 31, 2017.

Meanwhile, on July 21, 2017, another panel of this court issued its opinion in the
Leavenworth County appeal. See Smith, 2017 WL 3113188. That panel held that the
Leavenworth County District Court had not erred by denying Smith's motion to withdraw
plea and, as relevant to this case, it also addressed whether the district court erred in
classifying the South Carolina burglary conviction as a person offense. 2017 WL
3113188, at *2, 5. Smith argued that the district court had engaged in fact-finding
prohibited by Descamps and Dickey I when it determined that the South Carolina
burglary should be classified as a person offense. The panel noted the United States
Supreme Court's decision in Mathis v. United States, 579 U.S. ___, 136 S. Ct. 2243,

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2253-54, 195 L. Ed. 2d 604 (2016), which held that when a statute provides alternative
ways of satisfying an element of the crime, a district court may not engage in judicial
fact-finding under the guise of the modified categorical approach to determine whether a
certain alternative occurred. Smith, 2017 WL 3113188, at *3.

The panel examined the 1993 South Carolina burglary statute and found that it "is
divisible with respect to whether it has been committed in either a dwelling or a
building." 2017 WL 3113188, at *4. It also noted, however, that South Carolina's
"definition of dwelling is broader than Kansas' definition. For example, the South
Carolina statute treats any outbuilding within 200 yards of a dwelling as a dwelling" for
burglary purposes, while the Kansas statute does not. 2017 WL 3113188, at *4.
Accordingly, although "dwelling" was an element of South Carolina burglary, the various
buildings in South Carolina's definition of dwelling were merely alternative ways of
satisfying the dwelling element and, under Mathis, the modified categorical approach was
not constitutionally available to determine which alternative occurred in Smith's South
Carolina burglary. Smith, 2017 WL 3113188, at *4. The panel concluded that the South
Carolina burglary must be classified as a nonperson felony, and it vacated Smith's
sentence and remanded to Leavenworth County District Court for resentencing. 2017 WL
3113188, at *4. The State did not petition for review and Smith's petition for review was
denied.

Smith's appeal from his May 12, 2017 resentencing in Sedgwick County

About two and a half weeks after the opinion was filed in the Leavenworth County
case, this court granted Smith's motion to docket his appeal out of time from his May 12,
2017 resentencing in Sedgwick County, which is the appeal presently before this court.
On January 9, 2018, Smith filed his first brief and argued that the district court erred in
resentencing him for two reasons. First, Smith argued that the district court was wrong to
apply a modified categorical approach to determine whether his prior out-of-state
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conviction could be classified as a person felony. Second, he argued that in determining
his prior criminal history, the district court considered documents, including affidavits
and arrest warrants, that were beyond the limited class of permissible documents a district
court should consider under the modified categorical approach according to Descamps.

Before the State filed its response to Smith's first brief, our Supreme Court issued
its decision in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), which addressed
whether a prior second-degree burglary conviction in Missouri should be classified as a
person felony for Kansas criminal history purposes.

"To resolve the issue, the court construed the term 'comparable offenses' in K.S.A. 2017
Supp. 21-6811(e)(3). The court held that '[f]or an out-of-state conviction to be
comparable to an offense under the Kansas criminal code, the elements of the out-of-state
crime cannot be broader than the elements of the Kansas crime.' 307 Kan. at 562.
Essentially, 'the elements of the out-of-state crime must be identical to, or narrower than,
the elements of the Kansas crime to which it is being referenced.' 307 Kan. at 562."
Smith, 56 Kan. App. 2d at 349.

When the State filed its initial brief in this appeal on May 10, 2018, rather than
responding to the arguments Smith made in his brief, the State shifted gears and focused
on Wetrich. See Smith, 56 Kan. App. 2d at 346-47. "The State concede[d] that Wetrich
'appears to be on point with respect to Smith's substantive argument regarding the use of
the modified categorical approach,'" but it argued that Wetrich constituted a change in the
law that could not be applied to Smith's case because of a 2017 amendment to K.S.A. 22-
3504 that stated a sentence is not rendered illegal by a change in the law that occurs after
the sentence is pronounced. Smith, 56 Kan. App. 2d at 347.

In his reply brief, Smith "argue[d] that the 2017 amendment to K.S.A. 22-3504,
which went into effect six days after he was resentenced, cannot be applied retroactively
to affect his sentence" and that Wetrich was not a change in the law. Smith, 56 Kan. App.

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2d at 347. Without resolving the first question, this panel held that "Wetrich [did] not
amount to a change in the law within the meaning of the 2017 amendment to the
definition of an illegal sentence" but was "a reinterpretation of an existing statute." Smith,
56 Kan. App. 2d at 352-53.

This panel then analyzed whether Smith's 2017 sentence was illegal under
Wetrich. Smith, 56 Kan. App. 2d at 355. Although this panel did not refer to the other
panel's 2017 opinion on the same issue, its analysis largely paralleled that previous
opinion, concluding that the South Carolina definition of dwelling was broader than
Kansas' and that South Carolina's intent element required the intent to commit any crime,
while Kansas' intent element requires the intent to commit a felony, theft, or sexual
battery. 56 Kan. App. 2d at 356. As a result, "[b]ecause the South Carolina burglary
statute that Smith was convicted under is not identical to or narrower than the Kansas
burglary statute in effect when Smith committed his current crime of conviction, his prior
South Carolina burglary cannot be scored as a person felony for criminal history
purposes." 56 Kan. App. 2d at 356. This panel vacated Smith's Sedgwick County
sentence and "remand[ed] for resentencing with directions to classify Smith's South
Carolina burglary conviction as a nonperson felony for criminal history purposes." 56
Kan. App. 2d at 356.

But the State timely petitioned for review and in March 2019, our Supreme Court
placed the petition for review on hold. On April 19, 2019, our Supreme Court issued its
opinion in Murdock II, holding 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." 309
Kan. at 585-86. For Murdock, that meant that his second sentence, which was imposed in
accordance with the mandate in Murdock I, was legal when it was imposed and did not
become illegal later when Keel overruled Murdock I. Murdock II, 309 Kan. at 585.

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 On June 7, 2019, our Supreme Court issued its opinion in Newton, an appeal from
the denial of a 2014 motion to correct an illegal sentence imposed in 2008. Although the
parties briefed the applicability and impact of the 2017 amendment to K.S.A. 22-3504
and of the Supreme Court's decision in Wetrich, the Newton court affirmed the district
court's denial of Newton's motion to correct illegal sentence, reasoning only:

"At the time Newton was sentenced, Kansas caselaw construed K.S.A. 21-
4711(e) to mean '[f]or purposes of determining criminal history, the offenses need only
be comparable, not identical.' '[T]he comparable offense' was 'the closest approximation'
to the out-of-state crime. In Murdock II's wake [Newton] cannot argue Wetrich makes his
sentence, which was legal when it was imposed, illegal. [Citations omitted.]" Newton,
309 Kan. at 1073-74.

On June 14, 2019, our Supreme Court issued its opinion in Weber, a case that
involved the 2014 denial of a motion to correct an illegal sentence that had become final
in 2007. Weber expressly held that Wetrich constituted a change in the law, and "[u]nder
the law at the time of Weber's [2007] sentencing, as [Weber] concedes, '[f]or purposes of
determining criminal history, the offenses need only be comparable, not identical.' In
Murdock II's wake, [Weber] cannot argue Wetrich makes his sentence, which was legal
when it was imposed, illegal. [Citations omitted.]" Weber, 309 Kan. at 1209.

On December 27, 2019, our Supreme Court issued an order summarily granting
the State's petition for review of this court's 2018 opinion. The Supreme Court vacated
this court's opinion and remanded the case to this court for reconsideration in light of
Murdock II, Newton, and Weber.

On December 30, 2019, this court ordered the parties to file new briefs in this
appeal that would "replace all prior briefs," cautioning Smith that his "brief must include
all arguments as to why the district court erred in classifying [his] prior South Carolina
burglary conviction as a person offense for criminal history purposes."

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 Smith's brief, filed on January 28, 2020, raises three issues. First, he argues that
under Murdock II, Wetrich controls whether Smith's South Carolina burglary is classified
as a person or a nonperson offense because this is a direct appeal from his 2017
resentencing, not an appeal from the denial of a motion to correct illegal sentence. And
he contends that under Wetrich, his South Carolina burglary must be classified as a
nonperson offense. Second, he argues that at the 2017 remand hearing, the State did not
provide sufficient evidence that his South Carolina burglary conviction arose under the
subsection that criminalized burglary of a dwelling, as opposed to the subsection that
criminalized burglary of a building when at least one certain aggravating circumstance is
present. Third, Smith contends that even if this court applies the law in effect at his
original 2006 sentencing, Dickey I controls and the district court erred by considering
documents outside the scope of what Dickey I allows in a modified categorical approach.

The State responds that Smith is not entitled to the benefit of Wetrich because his
initial direct appeal concluded in 2009, long before Wetrich, and the relevant law is what
was in effect at his original sentencing in 2006. The State similarly argues that Dickey I
does not affect the documents the district court considered at the 2017 resentencing
because Dickey I was a change in the law that also occurred after Smith's initial direct
appeal had concluded. Moreover, even if Dickey I applied at the 2017 resentencing, the
State argues that the documents considered were permissible. Thus, the State asks this
court to affirm the 2017 sentence. Smith filed a reply brief seeking to distinguish the
caselaw cited by the State in support of its position that Wetrich does not apply here.

Neither of Smith's briefs nor the State's brief acknowledges the 2017 opinion from
this court in Smith's Leavenworth County case that held that the South Carolina burglary
conviction must be scored as a nonperson offense. As a result, on March 16, 2020, this
court issued a show-cause order and directed the parties to address whether the 2017
decision "should control the result in the above-captioned case under the doctrine[s] of

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issue preclusion, claim preclusion or res judicata." The parties filed their responses;
unsurprisingly, Smith argues that the 2017 decision controls, and the State disagrees.

DOES THIS COURT'S 2017 DECISION CONTROL THE RESULT IN THIS APPEAL?

In its response to this court's show-cause order, the State asserts that this panel is
not bound by the 2017 decision, simply arguing that one panel of the Court of Appeals is
not bound by another panel's decision. The State also summarily contends that the 2017
decision was wrong. For his part, Smith argues that the 2017 decision controls the result
in this appeal under the doctrines of issue preclusion and claim preclusion. The Kansas
Supreme Court has instructed that although "the concept of res judicata is broad enough
to encompass both claim preclusion and issue preclusion, the modern trend is to refer to
claim preclusion as res judicata and issue preclusion as collateral estoppel." See
Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1023, 58 P.3d 1284 (2002).

Although neither party has challenged this court's authority to sua sponte raise the
applicability of collateral estoppel or res judicata, we note that such action is within this
court's discretion. See State v. Parry, 305 Kan. 1189, 1194, 390 P.3d 879 (2017) (holding
the Court of Appeals did not err by "rais[ing] the law of the case doctrine's applicability
on its own initiative"). Kansas appellate courts review the application of res judicata or
collateral estoppel de novo. See Rhoten v. Dickson, 290 Kan. 92, 106, 113, 223 P.3d 786
(2010).

The State's argument that this panel is not bound by decisions of other panels of
the Kansas Court of Appeals is correct. The Kansas Supreme Court has noted that one
panel has "the right to disagree with a previous panel of the same court." See State v.
Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010). But as Smith points out, Supreme Court
Rule 7.04(g)(2) (2020 Kan. S. Ct. R. 46) provides: "An unpublished memorandum

13
opinion: (A) is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel."

Moreover, the general rule that Court of Appeals panels may disagree usually
refers to different panels' interpretation of the law and its application to varying facts. See
Urban, 291 Kan. at 223 (noting that the Urban panel was not bound by the decision in
State v. Hampton, No. 91,092, 2004 WL 2160787 [Kan. App. 2004] [unpublished
opinion]); Uhlman v. Richardson, 48 Kan. App. 2d 1, 13-14, 287 P.3d 287 (2012)
(declining to follow the result in Almack v. Steeley, 43 Kan. App. 2d 764, 230 P.3d 452
[2010]). In contrast, at least one panel of this court has applied a preclusive doctrine
when the cases in question involve the same parties and address the same issue on the
same facts.

In State v. Parry, No. 110,671, 2014 WL 1708137, at *1 (Kan. App. 2014)
(unpublished opinion), a panel of this court affirmed a district court's order suppressing
certain evidence. The State then dismissed the prosecution without prejudice and
immediately refiled the same charges. When the district court again granted the
defendant's motion to suppress, the State again appealed. State v. Parry, 51 Kan. App. 2d
928, 929-30, 358 P.3d 101 (2015). That appeal was assigned to a different panel of this
court and a majority of that panel held that the law of the case doctrine "precludes the
State from again litigating the constitutionality of the search." 51 Kan. App. 2d at 930.
On a petition for review, the Kansas Supreme Court affirmed. Parry, 305 Kan. 1189.

Thus, although the State's assertion that this panel is not bound by the decision of
another panel is correct, generally speaking, these are unique circumstances—the prior
decision in question resolved the same issue, involved the same parties, and arose on the
same facts now before this panel. As Smith contends, res judicata and collateral estoppel
both apply here and preclude the State from arguing that Smith's 1993 South Carolina
burglary should be classified as a person offense.
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Res judicata

"'In Kansas, there are four requirements to apply res judicata: (1) identity in the
thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to
the action; and (4) identity in the quality of persons for or against whom [the] claim is
made. In other words, "(1) same claim; (2) same parties; (3) claims were or could have
been raised; and (4) a final judgment on the merits."' [Citations omitted.]" Bogguess v.
State, 306 Kan. 574, 580, 395 P.3d 447 (2017).

As Smith argues in his response to this court's show-cause order, all four
requirements are met. This appeal and Smith's Leavenworth County appeal sought to
change the criminal history classification of his South Carolina burglary conviction from
person to nonperson. Both appeals were based on claims that the sentence resulting from
a person classification of that crime was illegal. Smith and the State of Kansas were the
only parties to both cases. It matters not that the cases were prosecuted in different
counties—the parties are the same. And the Leavenworth County appeal resulted in a
final judgment on the merits from the Court of Appeals in 2018, since the State did not
petition for review and Smith's petition for review in that appeal was denied.

Collateral estoppel

Collateral estoppel "prevents a second litigation of the same issue between the
same parties, even when raised in a different claim or cause of action." In re Tax Appeal
of Fleet, 293 Kan. 768, 778, 272 P.3d 583 (2012).

"'Collateral estoppel applies where (1) a prior judgment has been rendered on the
merits which determined the rights and liabilities of the parties on the issue based upon
ultimate facts as disclosed by the pleadings and judgment, (2) the parties are the same or
in privity, and (3) the issue litigated has been determined and is necessary to support the
judgment.' [Citation omitted.]" In re Easterberg, 309 Kan. 490, 502, 437 P.3d 964
(2019).

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 Once again, the circumstances now before the court satisfy these requirements.
The 2017 decision rendered a judgment on the merits of the person or nonperson
classification of Smith's South Carolina burglary conviction for Kansas criminal history
purposes. The material facts in the Leavenworth County appeal do not differ from those
present in this case. The parties are the same in both cases and the classification issue was
litigated, determined, and was necessary to support the judgment in the 2017 decision.
For these reasons, collateral estoppel also bars relitigation of the issue here.

As a final note, the preclusive effect of a final judgment on the classification of a
prior conviction as a person or nonperson offense for Kansas criminal history purposes
has been at least implicitly recognized by the Kansas Supreme Court. As set forth above,
Dickey I was a direct appeal taken from a conviction, and it resolved whether Dickey's
prior burglary adjudication should be classified as a person or nonperson felony,
concluding that it should be classified as a nonperson felony. See 301 Kan. at 1039-40.
But at the same hearing at which the district court pronounced the sentence that led to the
opinion in Dickey I, the district court also revoked probation in four earlier cases and
imposed the sentences already pronounced in those cases. State v. Dickey, 305 Kan. 217,
218-19, 380 P.3d 230 (2016) (Dickey II).

Dickey appealed the probation revocations in an appeal separate from his direct
appeal. Those underlying sentences had been calculated using a criminal history score
that included a person classification of Dickey's prior burglary adjudication, and Dickey
claimed that the underlying sentences were therefore illegal. After explaining why
Dickey's challenge to the sentences as illegal was properly before the court, the Kansas
Supreme Court concluded: "And that claim is identical to, and controlled by, our
determination in Dickey I that the exact prior conviction at issue here was in fact
misclassified." Dickey II, 305 Kan. at 222. Thus, the Kansas Supreme Court vacated the
underlying sentences and remanded for recalculation of Dickey's criminal history and
resentencing. 305 Kan. at 222. Dickey II supports this court similarly finding that the
16
2017 decision that held Smith's South Carolina burglary conviction should be classified
as a nonperson offense controls the outcome here.

In summary, the preclusive doctrines of res judicata and collateral estoppel both
act to prevent relitigation of the appropriate person or nonperson classification of Smith's
South Carolina burglary conviction for criminal history purposes. The sole issue in this
appeal is identical to, and should be controlled by, this court's decision in Smith, 2017
WL 3113188, that the exact prior conviction at issue here was in fact misclassified. See
Dickey II, 305 Kan. at 222. For this reason, we vacate Smith's current sentence and
remand with directions to classify the South Carolina burglary as a nonperson offense,
recalculate Smith's criminal history score, and resentence him based on that score.

DOES WETRICH APPLY TO SMITH'S APPEAL OF HIS 2017 RESENTENCING?

Although we could dispose of this appeal under principles of res judicata and
collateral estoppel, we will also address the first substantive claim Smith has raised in his
brief before this court. Smith claims that our Supreme Court's holding in Wetrich applies
to his direct appeal of his May 12, 2017 resentencing because Wetrich was decided while
this direct appeal has been pending. And under the holding in Wetrich, Smith's South
Carolina burglary conviction must be classified as a nonperson felony because the
elements of the applicable South Carolina statute are broader than the elements of the
applicable Kansas statute. The State disagrees, arguing that Smith's direct appeal
concluded in 2009 and the present appeal is merely a continuation of the appeal begun in
2014 when Smith moved to correct his illegal sentence.

Smith's underlying claim is that his sentence imposed on May 12, 2017, is illegal
because the district court incorrectly classified his 1993 South Carolina burglary
conviction as a person felony for criminal history purposes. Whether a prior conviction
was properly classified as a person or nonperson crime for criminal history purposes

17
raises a question of law subject to unlimited review. Dickey I, 301 Kan. at 1034.
Likewise, whether a sentence is illegal within the meaning of K.S.A. 2019 Supp. 22-3504
is a question of law over which this court has unlimited review. 301 Kan. at 1034.

"[T]he 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." Murdock II, 309 Kan. at 585-86.
But the holding in Murdock II "does not disturb our longstanding rule that in a direct
appeal, a defendant will receive the benefit of any change in the law that occurs while the
direct appeal is pending. [Citation omitted.]" 309 Kan. at 591. "Put simply, a party may
seek and obtain the benefit of a change in the law during the pendency of a direct appeal,
but a party moving to correct an illegal sentence is stuck with the law in effect at the time
the sentence was pronounced." 309 Kan. at 591-92.

Smith asserts that the holding in Wetrich applies to this direct appeal of his May
12, 2017 resentencing. But the State argues that the present appeal is merely a
continuation of the appeal begun in 2014 when Smith moved to correct his illegal
sentence. In support, the State directs this court to State v. Lewis, No. 118,401, 2019 WL
6041667 (Kan. App. 2019) (unpublished opinion), petition for rev. filed December 16,
2019. The State claims that the appeal in Lewis occurred in the same procedural posture
as this case and correctly concluded that the law in effect at the time of the original
sentencing controlled the outcome of the appeal. See 2019 WL 6041667, at *3, 5. Like
Smith, Lewis filed a motion to correct illegal sentence in 2014, arguing that a sentence he
received long before—in 2007—was illegal because of the erroneous classification as a
person felony of a prior out-of-state burglary conviction. The district court denied Lewis'
motion, and he appealed, just like Smith. And, as it happened to Smith, a panel of this
court reversed the denial of his motion to correct illegal sentence and remanded to the
district court for further proceedings. See 2019 WL 6041667, at *1.

18
 But the State does not acknowledge a critical procedural difference between Lewis
and this case. This court never vacated Lewis' original sentence. In Lewis' original
appeal, this court reversed and remanded

"for the district court to determine—by looking at documents from the 1978 Texas
case—whether the prior conviction actually involved a burglary of a habitation as the PSI
indicates. After doing so, the district court can determine whether the 1978 Texas
burglary conviction is comparable to Kansas' burglary statute in effect at the time Lewis
committed the current crimes." State v. Lewis, No. 113,438, 2016 WL 1546133, at *5
(Kan. App. 2016) (unpublished opinion).

Similarly, the mandate reflected that Lewis was "reversed and remanded with
directions." But the opinion resolving the appeal of Smith's motion to correct illegal
sentence stated: "[W]e vacate Smith's sentence and remand for further proceedings . . . ."
(Emphasis added.) Smith, 2016 WL 1391767, at *10. And the mandate issued reflected
"that the appellant's sentence be vacated and the case remanded with directions."

Lewis was not resentenced on remand; the district court found that his prior
burglary "was properly scored as a person crime," and Lewis appealed from that decision.
Lewis, 2019 WL 6041667, at *1. So Lewis' second appeal was clearly an appeal from the
denial of his motion to correct illegal sentence. In contrast, Smith was resentenced on
remand, and he appealed from that resentencing. See Smith, 56 Kan. App. 2d at 346.
Despite somewhat confusing language in this court's 2018 opinion, the district court on
remand did not "again [deny] Smith's motion to correct his sentence." See 56 Kan. App.
2d at 343. Rather, the district court, as instructed by this court, "determine[d] whether his
South Carolina burglary conviction should be classified as a person or nonperson offense
for criminal history purposes" and then resentenced Smith, as this court had vacated his
original sentence. See Smith, 2016 WL 1391767, at *10; see also Smith, 56 Kan. App. 2d
at 346.

19
 This distinction is critical because Smith's resentencing means that his current trip
to the appellate courts is a direct appeal of that resentencing, despite his continuing to
assert that the sentence imposed there was illegal. See Baker v. State, 297 Kan. 486, Syl.,
303 P.3d 675 (2013) (holding that "the 1-year time limitation for bringing an action under
K.S.A. 60-1507 begins to run after the period for taking a direct appeal from the new
sentence expires.") (Emphasis added.) Smith's current appeal is not a continuation of the
prior proceedings involving his 2014 motion to correct illegal sentence. It is a direct
appeal of his new sentence imposed by the district court on May 12, 2017.

To sum up, Smith filed a motion to correct illegal sentence in 2014 which the
district court denied. On appeal, this court vacated Smith's sentence and remanded to the
district court for resentencing. The order vacating Smith's original sentence became final
when our Supreme Court denied the State's petition for review. That action marked the
end of the proceedings on Smith's motion to correct illegal sentence. On remand, the
district court resentenced Smith as directed by this court. Smith timely appealed from that
sentence—his only sentence that has any operative effect. This constitutes a direct appeal
of his sentence imposed by the district court on May 12, 2017.

Under Murdock II, "a party may seek and obtain the benefit of a change in the law
during the pendency of a direct appeal." 309 Kan. at 591-92. Our Supreme Court filed its
decision in Wetrich on March 9, 2018, while Smith's direct appeal from his resentencing
was pending in the Court of Appeals. And Weber recognized Wetrich as a change in the
law. Weber, 309 Kan. at 1209. Smith is therefore entitled to the benefit of Wetrich. This
panel applied Wetrich in its now-vacated 2018 opinion:

"Under the identical-or-narrower rule [set forth in Wetrich], a defendant's prior out-of-
state conviction can only be scored as a person felony for criminal history purposes if the
prior crime's elements are identical to, or narrower than, the elements of the comparable
Kansas crime. Wetrich, 307 Kan. at 562.

20
 "In 1993, the South Carolina burglary statute stated, in relevant part:
"'(A) A person is guilty of burglary in the second degree if the person enters a
dwelling without consent and with intent to commit a crime therein.
"'(B) A person is guilty of burglary in the second degree if the person enters a
building without consent and with intent to commit a crime therein, and either:
'(1) When, in effecting entry or while in the building or in immediate flight
therefrom, he or another participant in the crime:
(a) Is armed with a deadly weapon or explosive; or
(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument; or
(d) Displays what is or appears to be a knife, pistol, revolver, rifle, shotgun,
machine gun, or other firearm; or
'(2) The burglary is committed by a person with a prior record of two or more
convictions for burglary or housebreaking or a combination of both; or
'(3) The entering or remaining occurs in the nighttime.' S.C. Code Ann. § 16-11-
312 (2003).
"The Kansas burglary statute in effect when Smith committed his current crime
of conviction stated:
"'Burglary is knowingly and without authority entering into or remaining within
any:
(a) Building, manufactured home, mobile home, tent or other structure which is a
dwelling, with intent to commit a felony, theft or sexual battery therein;
(b) building, manufactured home, mobile home, tent or other structure which is
not a dwelling, with intent to commit a felony, theft or sexual battery therein; or
(c) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance
of persons or property, with intent to commit a felony, theft or sexual battery therein.'
K.S.A. 21-3715.
"South Carolina defined a dwelling, at that time, as a
"'dwelling house, any house, outhouse, apartment, building, erection, shed or box in
which there sleeps a proprietor, tenant, watchman, clerk, laborer or person who lodges
there with a view to the protection of property shall be deemed a dwelling house, and of
such a dwelling house or of any other dwelling house all houses, outhouses, buildings,
sheds and erections which are within two hundred yards of it and are appurtenant to it or

21
 to the same establishment of which it is an appurtenance shall be deemed parcels.' S.C.
Code Ann. § 16-11-10 (2003).
"Kansas defined a dwelling as 'a building or portion thereof, a tent, a vehicle or
other enclosed space which is used or intended for use as a human habitation, home or
residence.' K.S.A. 21-3110(7).
"South Carolina's definition of a burglary of a dwelling is significantly broader
than Kansas' definition during the time in question. Under the South Carolina definition
of burglary, a defendant could be convicted of a burglary of any outbuilding within 200
yards of a dwelling. S.C. Code Ann. § 16-11-312; S.C. Code Ann. § 16-11-10. South
Carolina's definition is also broader with the issue of intent. Under the South Carolina
law, Smith could have been convicted for entering with the intent to commit any crime.
See S.C. Code Ann. § 16-11-312. In contrast, to be convicted of burglary in Kansas
requires a defendant to have 'intent to commit a felony, theft or sexual battery.' See
K.S.A. 21-3715.
"Because the South Carolina burglary statute that Smith was convicted under is
not identical to or narrower than the Kansas burglary statute in effect when Smith
committed his current crime of conviction, his prior South Carolina burglary cannot be
scored as a person felony for criminal history purposes. See Wetrich, 307 Kan. at 562.
The district court erred in finding otherwise." Smith, 56 Kan. App. 2d at 355-56.

This reasoning remains sound and the State's operative brief does not argue that if
Wetrich applies, the result should be different than it was when this court applied Wetrich
in 2018. Applying Wetrich to Smith's current sentence, we vacate Smith's sentence and
remand to the district court with directions to reclassify Smith's South Carolina burglary
conviction as a nonperson felony, recalculate Smith's criminal history score, and
resentence him in accordance with the new score. Based on this disposition, we do not
need to address the other arguments Smith has raised in this appeal.

Sentence vacated and case remanded with directions.

22
 ***

POWELL, J., dissenting: The Kansas Supreme Court has recently made it very
clear "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." State v. Murdock, 309 Kan. 585, 591, 439 P.3d
307 (2019) (Murdock II). Moreover, "a sentence that was legal when pronounced does
not become illegal if the law subsequently changes." 309 Kan. 585, Syl. ¶ 1. For reasons I
will explain, these bedrock principles lead me to conclude that when Smith's sentence
was originally pronounced it was a legal one. Because the majority holds otherwise, I
dissent.

Smith was originally sentenced on December 19, 2006, and the district court based
its sentence upon Smith's C criminal history score, determined in part by classifying his
prior 1993 South Carolina burglary of a dwelling second-degree conviction as a person
felony. Smith's conviction and sentence were upheld on direct appeal. See State v. Smith,
No. 113,297, 2016 WL 1391767, at *1 (Kan. App. 2016) (unpublished opinion) (Smith
II) (appeal of denial of motion to correct illegal sentence); State v. Smith, No. 97,951,
2008 WL 4416029, at *7-8 (Kan. App. 2008) (unpublished opinion) (Smith I) (direct
appeal).

As the majority chronicles in detail, the lengthy litigation in this case was
commenced when Smith filed his motion to correct an illegal sentence on June 9, 2014.
In his motion, Smith claimed his criminal history had been incorrectly calculated because
his prior 1993 South Carolina burglary conviction had been improperly scored as a
person felony, thus making his sentence illegal. The district court denied the motion
which prompted Smith to appeal.

As our Supreme Court has admitted: "[I]nterface of our statutory interpretation of
the KSGA criminal history provisions and the thick overlay of changes in federal

23
constitutional law has created an evolving body of Kansas law." State v. McAlister, 310
Kan. 86, 90, 444 P.3d 923 (2019). This shifting sentencing jurisprudence emanating from
our Supreme Court dictated a remand to the district court by this court in Smith II;
another appeal by Smith to this court challenging the district court's ruling on remand; yet
another decision from this court in State v. Smith, 56 Kan. App. 2d 343, 430 P.3d 58
(2018) (Smith III); and finally the vacating of this court's Smith III opinion by the Kansas
Supreme Court with directions that we consider the legality of Smith's sentence in light
of Murdock II; State v. Weber, 309 Kan. 1203, 442 P.3d 1044 (2019); and State v.
Newton, 309 Kan. 1070, 442 P.3d 489 (2019).

According to the law in effect when Smith was sentenced in December 2006, a
defendant's prior out-of-state convictions are counted for purposes of calculating that
defendant's criminal history. Such convictions must be "classified as either a felony or a
misdemeanor according to the convicting jurisdiction." K.S.A. 21-4711(e). There has
been no dispute that Smith's 1993 South Carolina burglary conviction should be
classified as a felony.

The law also requires that any out-of-state conviction be classified as a person or
nonperson crime. K.S.A. 22-4711(e). Whether Smith's 1993 burglary conviction should
be classified as a person or nonperson crime has vexed us for years. The question is
important because the classification of this burglary conviction as either a person or
nonperson crime affects Smith's criminal history score and, thus, the legality of his
sentence.

Turning again to the law in effect in December 2006, K.S.A. 22-4711(e) stated:
"In designating a crime as person or nonperson comparable offenses shall be referred to."
This provision was construed to mean that for purposes of criminal history, "the offenses
need only be comparable, not identical." State v. Vandervort, 276 Kan. 164, 179, 72 P.3d
925 (2003), overruled on other grounds by State v. Dickey, 301 Kan. 1018, 350 P.3d
24
1054 (2015). "'[T]he comparable offense' was 'the closest approximation' to the out-of-
state crime." Weber, 309 Kan. at 1206; see Vandervort, 276 Kan. at 179. Our Supreme
Court made clear in Weber this "closest approximation" test was to be used to determine
comparability for purposes of criminal history for sentences pronounced prior to
Wetrich's "identical to, or narrower than" test enunciated in 2018. 309 Kan. at 1207,
1209; see Newton, 309 Kan. at 1073-74; State v. Wetrich, 307 Kan. 552, 562, 412 P.3d
984 (2018) ("[E]lements of the out-of-state crime must be identical to, or narrower than,
the elements of the Kansas crime to which it is being referenced.").

The PSI from Smith's 2006 sentencing referred to Smith's 1993 South Carolina
burglary conviction as Burglary of Dwelling 2nd Degree. In relevant part, the 1993 South
Carolina burglary statute states:

"(A) A person is guilty of burglary in the second degree if the person enters a
dwelling without consent and with intent to commit a crime therein.

"(B) A person is guilty of burglary in the second degree if the person enters a
building without consent and with intent to commit a crime therein, and either:

"(1) When, in effecting entry or while in the building or in immediate flight
therefrom, he or another participant in the crime:

(a) Is armed with a deadly weapon or explosive; or

(b) Causes physical injury to any person who is not a participant in the crime; or

(c) Uses or threatens the use of a dangerous instrument; or

(d) Displays what is or appears to be a knife, pistol, revolver, rifle, shotgun,
machine gun, or other firearm; or

25
 "(2) The burglary is committed by a person with a prior record of two or more
convictions for burglary or housebreaking or a combination of both; or

"(3) The entering or remaining occurs in the nighttime." S.C. Code Ann. § 16-11-
312 (2003).

S.C. Code Ann. § 16-11-310 (2003) defines dwelling in the context of burglary to
include the definition contained in S.C. Code Ann. § 16-11-10 and "the living quarters of
a building which is used or normally used for sleeping, living, or lodging by a person."
S.C. Code Ann. § 16-11-10 (2003) states:

"With respect to the crimes of burglary and arson and to all criminal offenses which are
constituted or aggravated by being committed in a dwelling house, any house, outhouse,
apartment, building, erection, shed or box in which there sleeps a proprietor, tenant,
watchman, clerk, laborer or person who lodges there with a view to the protection of
property shall be deemed a dwelling house, and of such a dwelling house or of any other
dwelling house all houses, outhouses, buildings, sheds and erections which are within
two hundred yards of it and are appurtenant to it or to the same establishment of which it
is an appurtenance shall be deemed parcels."

The Kansas burglary statute from 2006 defines burglary as follows:

"Burglary is knowingly and without authority entering into or remaining within
any:

"(a) Building, manufactured home, mobile home, tent or other structure which
is a dwelling, with intent to commit a felony, theft or sexual battery therein;

"(b) building, manufactured home, mobile home, tent or other structure which
is not a dwelling, with intent to commit a felony, theft or sexual battery therein; or

26
 "(c) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance
of persons or property, with intent to commit a felony, theft or sexual battery therein."
K.S.A. 21-3715.

The term "dwelling" in the context of burglary is defined as "a building or portion
thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a
human habitation, home or residence." K.S.A. 21-3110(7). A burglary committed
contrary to subsection (a) is a person felony while a burglary committed contrary to
subsections (b) or (c) are nonperson felonies. K.S.A. 21-3715. In short, any Kansas
burglary committed in a dwelling is a person felony while all others are nonperson
felonies.

The sentencing law in effect in 2006 requires a prior burglary conviction to be
classified as either a person or nonperson crime for criminal history purposes as follows:

"(1) As a prior person felony if the prior conviction or adjudication was classified
as a burglary as described in subsection (a) of K.S.A. 21-3715 and amendments thereto.

"(2) As a prior nonperson felony if the prior conviction or adjudication was
classified as a burglary as described in subsection (b) or (c) of K.S.A. 21-3715 and
amendments thereto.

"The facts required to classify prior burglary adult convictions and juvenile
adjudications must be established by the state by a preponderance of the evidence."
K.S.A. 21-4711(d).

Thus, any prior burglary conviction had to be scored as either a person or nonperson
crime depending on whether the burglary had been committed in a dwelling.

When comparing South Carolina's second-degree burglary statute, S.C. Code Ann.
§ 16-11-312(A), and its definition of "dwelling" contained in S.C. Code Ann. §§ 16-11-

27
310 and 16-11-10 with Kansas' burglary statute, K.S.A. 21-3715, it is obvious they are
comparable as they prohibit similar conduct. While South Carolina's definition of
"dwelling" is broader than the Kansas definition contained in K.S.A. 21-3110(7), that
does not matter under Vandervort's comparability analysis; the statutes are certainly
similar and therefore comparable. Moreover, the district court specifically found by a
preponderance of the evidence, after examining the charging documents and other
exhibits presented at the remand hearing, that Smith's South Carolina burglary had been
committed with the intent to commit a theft and in a dwelling. See generally State v. May,
39 Kan. App. 2d 990, 996, 186 P.3d 847 (2008) (defendant's prior burglaries properly
classified as person crimes as sentencing court determined they were committed in
dwellings), rev. denied November 4, 2008. Sufficient evidence supports the district
court's findings.

Parenthetically, to the extent Smith is complaining the district court's factual
findings violate his constitutional rights as expressed in Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and State v. Dickey, 301 Kan. 1018, 350
P.3d 1054 (2015), he is prohibited from making such a claim in a motion to correct an
illegal sentence. See State v. Bryant, 310 Kan. 920, 922-23, 453 P.3d 279, 281 (2019). In
Bryant, the defendant claimed his sentence was illegal, arguing his 2005 sentence was
unconstitutional under Apprendi, 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), when the district court engaged in impermissible fact-
finding when designating his 1981 Missouri second-degree burglaries as person felonies.
Our Supreme Court rejected that argument and held the defendant "cannot use a motion
to correct an illegal sentence to argue that his sentence is unconstitutional." Bryant, 310
Kan. at 922, 453 P.3d at 281. Because Smith's argument that his constitutional rights
were violated cannot be raised in a motion to correct an illegal sentence, his 1993 South
Carolina burglary conviction was properly scored as a person felony, and his sentence
imposed in 2006 was a legal one.
28
 The majority reaches a different conclusion based on two different theories. First,
it states that according to the doctrines of res judicata and collateral estoppel, the parties
are bound by the panel's decision in yet another case involving Smith, which held that
Smith's 1993 South Carolina burglary conviction had to be classified as a nonperson
crime. See State v. Smith, No. 115,830, 2017 WL 3113188, at *4 (Kan. App. 2017)
(unpublished opinion). I see numerous problems with the majority's holding, the most
obvious being that "K.S.A. 22-3504's statutory directive that an illegal sentence may be
corrected 'at any time' supersedes the normal procedural hurdles of res judicata and
retroactivity." McAlister, 310 Kan. at 90. Invoking res judicata is also problematic
because it typically must be asserted by one of the parties. See Estate of Belden v. Brown
County, 46 Kan. App. 2d 247, 262, 261 P.3d 943 (2011). Here, Smith never raised res
judicata; we did. And the doctrine of collateral estoppel is not to be invoked when "'a new
determination is warranted in order to take account of an intervening change in the
applicable legal context.'" Kansas Public Employees Retirement System v. Reimer &
Koger Assocs., Inc., 262 Kan. 635, 671, 941 P.2d 1321 (1997) (quoting Restatement
[Second] of Judgments § 28 [1982]). Collateral estoppel is also inapplicable where the
legal issues are different. See Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 464,
980 P.2d 1022 (1999) (defendant who obtained favorable suppression ruling in DUI
prosecution barred from invoking collateral estoppel against administrative agency in
driver's license suspension proceeding).

My strongest objection to invoking these doctrines in this instance is the fact the
law to be applied in this case is different from Smith, 2017 WL 3113188. That Smith
panel addressed the legality of Smith's 2015 sentence as part of a direct appeal. There,
Smith appealed the district court's refusal to grant his presentence motion to withdraw
plea and challenged his criminal history score, claiming the district court wrongly
classified his 1993 South Carolina burglary conviction as a person felony. Because it was
a direct appeal, the panel applied Dickey and Mathis, decisions issued in 2015 and 2016
respectively, to conclude Smith's 1993 South Carolina burglary conviction had to be
29
scored as a nonperson felony—consistent with Murdock II's holding that "a defendant
will receive the benefit of any change in the law that occurs while the direct appeal is
pending." See 309 Kan. at 591; Smith, 2017 WL 3113188, at *4. The case before us
involves Smith's motion to correct an illegal sentence originally imposed in 2006, which,
as I have explained, requires us to examine the legality of Smith's sentence under the law
as it existed in 2006. Res judicata and collateral estoppel cannot transform Smith's 2006
legal sentence into an illegal one.

Second, the majority takes the position that Smith's resentencing in 2017 now
makes this appeal a direct appeal from that sentence, thus entitling Smith to the benefit of
subsequent changes in the law occurring after his sentence, most notably, Wetrich's
identical-or-narrower method of comparing an out-of-state conviction with a Kansas
crime for criminal history purposes. I disagree with this thinking as well for the simple
reason it is contrary to Murdock II and amounts to moving the sentencing law goalposts. I
concur with the State's argument that the appeal before us is not a direct appeal case but
an appeal in a motion to correct an illegal sentence case, which is a collateral attack on a
sentence. I submit my view is bolstered by our illegal sentence statute, which describes a
direct appeal as "an appeal from the judgment of conviction." K.S.A. 2019 Supp. 22-
3504(c).

I also disagree with the majority because the district court's resentencing in 2017
was a result of the mandate from our Smith II decision and should not be characterized as
a resentencing. See State v. Tafoya, 304 Kan. 663, 669, 372 P.3d 1247 (2016) (remand
from appellate court to district court to correct error is not remand for resentencing). I
agree with the view that any corrections to a sentence as part of a motion to correct an
illegal sentence should be considered just that—a correction of a sentence and not a
resentencing. See State v. Jamerson, 309 Kan. 211, 219-223, 433 P.3d 698 (2019)
(Johnson, J., concurring and dissenting).

30
 Finally, even if I were to grudgingly agree that Smith was "resentenced" by the
district court in 2017 as a result of Smith's original sentence being vacated by the Smith II
panel, the resentencing has no force or effect because, as I have explained, Smith's
original sentence from 2006 is a legal one and cannot be modified. See Jamerson, 309
Kan. at 218 (no authority to modify legal sentences). The Smith II panel never declared
Smith's sentence to be illegal; therefore, any language in the opinion vacating the
sentence was both superfluous and improper as it should have merely remanded the case.
See Tafoya, 304 Kan. at 670 (substance of appellate court ruling controls over form).
Also, the district court on remand never declared Smith's sentence illegal and merely
reimposed the original sentence in an attempt to comply with the Smith II mandate. Both
our prior opinions in Smith II and Smith III were wrongly decided in light of Murdock II's
command that we judge the legality of a sentence by the law in existence at the time the
sentence was imposed. Moreover, to the extent Smith II became the law of the case
because the Kansas Supreme Court denied the State's petition for review of that decision,
any binding effect of Smith II dissolves because an exception to the law of the case
doctrine exists where "a controlling authority has made a contrary decision regarding the
law applicable to the issues." See State v. Kleypas, 305 Kan. 224, 245, 382 P.3d 373
(2016). Murdock II is the new and subsequent controlling legal authority which compels
the result that Smith's 2006 sentence is legal because according to the law in effect in
2006 his 1993 South Carolina burglary conviction was correctly classified as a person
felony.

I would affirm the district court.

31