State v. Allen

NOT DESIGNATED FOR PUBLICATION

No. 123,273

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOSEPH LEE ALLEN,
Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed August 27, 2021.
Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Kurtis Wiard, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., HILL and ISHERWOOD, JJ.

PER CURIAM: Joseph Lee Allen appeals from the denial of his pro se motion to
correct an illegal sentence. A trial court sentenced Allen in 2008 after a jury found him
guilty of attempted first-degree murder and criminal possession of a firearm. Allen now
argues that his sentence is illegal because the trial court improperly classified his 1983
conviction for battery of a law enforcement officer as a person misdemeanor which
yielded an erroneous criminal history score. We find the trial court's classification of the
1983 conviction as a person misdemeanor was proper and affirm its denial of Allen's
motion to correct an illegal sentence.

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 FACTUAL AND PROCEDURAL BACKGROUND

In February 2006, Allen shot Wayne Brandon Jr. in the abdomen. Shortly before
Brandon lost consciousness, he identified Allen as the shooter to police. In November
2006, a jury found Allen guilty of attempted first-degree murder and criminal possession
of a firearm.

The district court sentenced Allen in September 2008, at which time it found that
he had a B criminal history score. Allen's criminal history included a person felony from
2000 and the aggregation of three prior person misdemeanors, including a 1983
conviction for battery of a law enforcement officer. The court imposed a sentence of 586
months in prison for attempted murder, concurrent with 8 months in prison for criminal
possession of a firearm.

Allen pursued a direct appeal, and this court remanded his case to the trial court
with directions to conduct a hearing under State v. Van Cleave, 239 Kan. 117, 716 P.2d
580 (1986), and evaluate Allen's claim of ineffective assistance of counsel. State v. Allen,
No. 101,367, 2010 WL 3636269 (Kan. App. 2010) (unpublished opinion) (Allen I). After
the Van Cleave proceeding, the trial court denied Allen's ineffective assistance of counsel
claims and this court affirmed. State v. Allen, No. 110,353, 2014 WL 6775823 (Kan.
App. 2014) (unpublished opinion) (Allen II).

While Allen II was pending before this court, Allen moved the trial court to correct
what Allen thought to be an illegal sentence. Allen claimed that his criminal history score
should have been C rather than B because the district court incorrectly classified his 1983
misdemeanor conviction for battery against a law enforcement officer as a person crime,
leading to the higher score. Following a hearing, the trial court denied Allen's motion and
this court summarily affirmed under Supreme Court Rule 7.041 (2015 Kan. Ct. R. Annot.

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67) and State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015) (overruling Murdock I). Our
Supreme Court denied review.

In October 2019, Allen again moved the trial court to correct an illegal sentence.
Allen argued that State v. Murdock, 309 Kan. 585, 439 P.3d 307 (2019) (Murdock II),
should be applied to enable him to derive the benefit from State v. Murdock, 299 Kan.
312, 323 P.3d 846 (2014) (Murdock I), without incurring the detriment of Keel, which
overruled Murdock I. The trial court summarily denied his motion. Allen now appeals to
this court for resolution of the claim.

ANALYSIS

DID THE TRIAL COURT ERR IN DENYING ALLEN'S MOTION TO CORRECT AN ILLEGAL
SENTENCE?

Allen argues that misdemeanor battery of a law enforcement officer was not
considered a person misdemeanor in 1983 because Kansas did not begin assigning the
person/nonperson distinctions until 1993. Thus, according to Allen, that misdemeanor
conviction in his criminal history qualifies as a nonperson crime because under K.S.A.
21-4710(d)(8), unclassified crimes default to a nonperson classification. The State
responds that Allen is stuck with the law in effect when the court imposed his sentence
and, at that time, "designation of a Kansas crime as person or nonperson depend[ed] on
the nature of the offense." State v. Fifer, 20 Kan. App. 2d 12, 15, 881 P.2d 589 (1994).
The State offers the corresponding argument that the nature of Allen's battery conviction
reveals it falls under the classification of a person crime, given that battery inflicts or
could inflict physical or emotional harm to another.

Whether a sentence is illegal under K.S.A. 22-3504 is a question of law over
which the appellate court has unlimited review. State v. Sartin, 310 Kan. 367, 369, 446
P.3d 1068 (2019). When a trial court summarily denies a motion to correct an illegal

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sentence, the appellate court applies a de novo standard of review because the appellate
court has the same access to the motion, records, and files as the trial court. State v.
Alford, 308 Kan. 1336, 1338, 429 P.3d 197 (2018).

A sentence is illegal under K.S.A. 2020 Supp. 22-3504(c)(1) when: (1) it is
imposed by a court without jurisdiction; (2) it does not conform to the applicable
statutory provisions, either in character or the term of punishment; or (3) it is ambiguous
about the time and manner in which it is to be served. State v. Hambright, 310 Kan. 408,
411, 447 P.3d 972 (2019). The illegal sentence statute, however, has minimal
applicability. Alford, 308 Kan. at 1338. A change in the law that occurs after the sentence
is pronounced and after any direct appeal concludes does not render that sentence illegal.
K.S.A. 2020 Supp. 22-3504(c)(2).

A court may correct an illegal sentence at any time while the defendant is serving
the sentence. K.S.A. 2020 Supp. 22-3504(a). A defendant who stipulates to his or her
criminal history at sentencing cannot later challenge the existence of convictions listed in
that criminal history, but he or she may later claim that the sentence was illegal because
the person or nonperson classification of a prior conviction was incorrect. State v. Dickey,
301 Kan. 1018, 1032, 350 P.3d 1054 (2015).

The law in effect when the court pronounces an offender's sentence determines the
legality of such sentence under K.S.A. 2020 Supp. 22-3504. Murdock II, 309 Kan. at 591.
Thus, neither the defendant nor the State can rely on later changes in the law for a motion
to correct an illegal sentence. This rule does not affect the longstanding rule that "a
defendant will receive the benefit of any change in the law that occurs while the direct
appeal is pending." 309 Kan. at 591.

Allen claims that his criminal history score is incorrect because three of his prior
misdemeanors were erroneously aggregated into one person felony. Under K.S.A. 21-

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4711(a) every three prior adult convictions of class A and class B person misdemeanors
must be rated as one adult conviction of a person felony. Allen argues that the
aggregation which occurred in his case is incorrect because his prior misdemeanor
convictions consisted of one nonperson and two person offenses, rather than three person
misdemeanors. He asserts that the one nonperson misdemeanor is his 1983 conviction for
battery against a law enforcement officer. The provision in effect when Allen committed
that offense, K.S.A. 21-3413 (Weeks 1974), stated the following: "Battery against a law
enforcement officer is a class A misdemeanor." The statute did not specify whether it was
a person or nonperson offense. In 1993, Kansas enacted the Kansas Sentencing
Guidelines Act (KSGA), which adopted the classifications of person and nonperson
crimes. State v. McAlister, 310 Kan. 86, 89, 444 P.3d 923 (2019).

"The legality of a sentence is fixed at a discrete moment in time—the moment the
sentence was pronounced. At that moment, a pronounced sentence is either legal or
illegal according to then-existing law." Murdock II, 309 Kan. at 591. Thus, Allen's
sentence is legal if his criminal history score is in alignment with the law in effect on
September 19, 2008, when pronouncement of sentence occurred in the current case.

Allen's 1983 conviction was properly classified as a person misdemeanor by the
sentencing court in accordance with the relevant law when it imposed Allen's sentence.
The language from Fifer offers a measure of guidance where that court stated:
"Designation of a crime as person or nonperson depends on the nature of the offense.
Crimes which inflict, or could inflict, physical or emotional harm to another are generally
designated as person crimes." Fifer, 20 Kan. App. 2d at 15. Battery of a law enforcement
officer as it existed in both 1983 when Allen committed that crime, and in 2006 when he
committed his current crimes of conviction, contemplated harm to another person. That
is, the 1983 version of the statute under which Allen was convicted, described the crime
as "battery, as defined in section 21-3412, committed against a uniformed or properly
identified state, county or city law enforcement officer while such officer is engaged in

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the performance of his duty" and classified the crime as a class A misdemeanor. K.S.A.
21-3413 (Weeks 1974). Battery was defined as "the unlawful, intentional touching or
application of force to the person of another, when done in a rude, insolent or angry
manner." K.S.A. 21-3412 (Weeks 1974).

In February 2006, when Allen committed his current crimes of conviction, battery
was defined as "(1) intentionally or recklessly causing bodily harm to another person; or
(2) intentionally causing physical contact with another person when done in a rude,
insulting or angry manner." K.S.A. 2005 Supp. 21-3412. Battery against a law
enforcement officer had evolved to distinguish between different types of law
enforcement officers. At that point, the crime could either be a class A person
misdemeanor or a severity level 5 person felony, depending on which type of law
enforcement officer a defendant battered. The only change in language between the 1983
and 2005 versions of the class A misdemeanor was the later clarification of which
officers were not included. The battery would be a class A person misdemeanor if
"[c]ommitted against a uniformed or properly identified state, county or city law
enforcement officer, other than a state correctional officer or employee, a city or county
correctional officer or employee, a juvenile correctional facility officer or employee or a
juvenile detention facility officer or employee, while such officer is engaged in the
performance of such officer's duty." (Emphasis added.) K.S.A. 2005 Supp. 21-3413(a)(1).

Battery of a law enforcement officer, under either version of the provision
involves harm to another person. Thus, Allen's 1983 conviction was properly classified as
a person crime when the court sentenced him in 2008, and his sentence was legal at the
time of that pronouncement.

This court applied Fifer in deciding State v. Davis, 22 Kan. App. 2d 776, 777, 922
P.2d 453 (1996). The Davis court ruled that Davis' class B misdemeanor for furnishing
cereal malt beverage to a minor was correctly classified as a class B person misdemeanor.

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"Under current state statutes, furnishing alcoholic liquor to a minor is classified as a class
B person misdemeanor." 22 Kan. App. 2d at 777. The Davis court ruled that classifying
pre-KSGA crimes as person crimes based on their current, post-KSGA classification was
"consistent with the general design of the guidelines." 22 Kan. App. 2d at 777. It cited
Fifer's reasoning that the Legislature intended to designate crimes which inflict or could
inflict physical or emotional harm to another as person crimes. Kansas courts then
continued to classify pre-KSGA convictions as either person or nonperson crimes for
criminal history purposes by comparing the prior offense to the classification in effect
when the current crime was committed. See State v. Smith, 49 Kan. App. 2d 19, 21, 303
P.3d 716 (2013).

Allen seeks to avail himself of a different rule, however, by citing our Supreme
Court's opinion in Murdock II. The Murdock II court began its analysis by stating: "The
threshold question in this case is whether the legality of a sentence under K.S.A. 22-3504
is fixed at a discrete moment in time or is a moving target. Put another way, can a legal
sentence become illegal when the law changes?" 309 Kan. at 589. The Murdock II court
answered this question with a firm "no." A sentence is either legal or illegal at the
moment it is imposed and later changes in the law will not affect that sentence. 309 Kan.
at 591. But the court added that its holding did not disturb the longstanding rule that, in a
direct appeal, a defendant will receive the benefit of any change in the law while the
direct appeal is pending. 309 Kan. at 591. It is this latter statement that Allen relies on as
the foundation for his request for relief.

Allen contends that his direct appeal was pending when our Supreme Court
decided Murdock I, therefore, this court should now apply Murdock I to find that the
appropriate designation for his 1983 conviction is a nonperson misdemeanor. In Murdock
I, our Supreme Court focused on K.S.A. 21-4710(d)(8), which stated the following about
out-of-state convictions: "'[U]nclassified felonies and misdemeanors shall be considered
and scored as nonperson crimes for the purpose of determining criminal history.'" 299

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Kan. at 318. Again, before 1993, the person or nonperson classification largely did not
exist. Thus, the Murdock I court stated, "We hold that Murdock's two prior out-of-state
convictions must be scored as nonperson offenses under K.S.A. 21-4710(d)(8) following
our Williams precedent. We recognize this rule results in the classification of all out-of-
state pre-1993 crimes as nonperson felonies . . . ." Allen argues that this Murdock I rule
changed the law while his direct appeal was pending and thus he should benefit from the
change.

Two problems plague Allen's analysis. First, Allen's case was not on direct appeal
when Murdock I was issued. Rather, he litigated his direct appeal in 2010. Allen I, 2010
WL 3636269. Murdock I was not decided until roughly four years later. Murdock I, 299
Kan. 312, overruled by Keel, 302 Kan. 560. "[F]or purposes of a motion to correct an
illegal sentence, neither party can avail itself of subsequent changes in the law." Murdock
II, 309 Kan. at 591. The plain, unambiguous language from the Murdock II court is that
Allen is stuck with the law in effect at the time of his sentencing on September 19, 2008.
As a result, he may not avail himself of the benefit of Murdock I.

The second problem arising from Allen's reasoning is that Murdock I simply does
not apply to him. In State v. Waggoner, 51 Kan. App. 2d 144, 155-57, 343 P.3d 530
(2015), this court determined that Murdock I did not apply to in-state convictions. The
misdemeanor Allen is challenging was committed in Kansas. Waggoner confirmed that
in-state convictions were classified as person crimes if they inflicted or could inflict
physical or emotional harm on a person, noting that this determination arose out of a
comparison of the offense against current guidelines offenses. 51 Kan. App. 2d at 153,
155 (citing Fifer, 20 Kan. App. 2d at 15); see also State v. Coppage, No. 115,585, 2019
WL 1976427, at *3 (Kan. App. 2019) (unpublished opinion); State v. Meek, No. 114,979,
2016 WL 4413759, at *2 (Kan. App. 2016) (unpublished opinion); State v. Denney, No.
113,958, 2016 WL 4161334, at *2-3 (Kan. App. 2016) (unpublished opinion); State v.
Antalek, No. 114,033, 2016 WL 4063971, at *3 (Kan. App. 2016 (unpublished opinion).

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Thus, although Allen correctly argues that Murdock I was a change in the law, it is not
one which impacts him given that his challenge targets an in-state conviction.

We recognize that the district court did not cite Waggoner as authority in deciding
whether to classify Allen's prior conviction as a person or nonperson offense. Instead, the
trial court cited Keel as its basis for denying Allen's motion to correct an illegal sentence.
Allen stresses that the trial court erred in its chronology. The trial court incorrectly stated:
"Keel was issued before the Kansas Court of Appeals issued its decision on Defendant's
direct appeal, and, therefore, applies." Allen correctly notes that the court did not issue
Keel until after his direct appeal concluded. While Keel does not apply to Allen, the trial
court could have correctly cited Waggoner instead for essentially the same result. If a
trial court reaches the correct result, its decision will be upheld even though it relied on
the wrong ground or assigned erroneous reasons for its decision. See State v. Overman,
301 Kan. 704, 712, 348 P.3d 516 (2015). Here, the trial court's correct result did not rely
on erroneous reasoning, it simply cited the wrong case as the foundation for its legally
sound conclusion. The district court did not err in summarily denying Allen's motion to
correct an illegal sentence.

Affirmed.

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