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Kansas Supreme Court: Claim of Illegal Sentence Raised for First Time on Appeal Entitled to Merits Review

by Michael Berk

The Supreme Court of Kansas held that a court of appeals must consider a claim that a criminal defendant’s sentence is illegal even when raised for the first time in the appellate court.

In 1995, Billy Sartin was convicted of several crimes in Kansas. His sentence was enhanced under the Kansas Sentencing Guidelines, K.S.A. 21-4701 et seq., based on five prior convictions in Illinois.

In Kansas v. Murdock, 323 P.3d 846 (Kan. 2014) (Murdock I), overruled by Kansas v. Keel, 357 P.3d 251 (Kan. 2015), the Kansas Supreme Court ruled that all prior out-of-state convictions must be scored under the Guidelines as “nonperson,” rather than “person,” crimes. Before Keel, in June of 2015, Sartin filed a motion to correct an illegal sentence under K.S.A. 22-3504(1), alleging that his Illinois conviction for “aggravated criminal sexual abuse” should have received less weight in determining his lengthy sentence.

The district court denied Sartin’s motion because the holding in Murdock I, on which his argument depended, had been abrogated. On appeal, Sartin expanded his claim to contest all five of his prior convictions on constitutional grounds, relying on decisions of the U.S. Supreme Court restricting judicial fact-finding in certain sentence-enhancement contexts.

The Court of Appeals affirmed the denial as to the single prior conviction Sartin had attacked in the district court but declined to consider Sartin’s other claims raised for the first time on appeal. The Kansas Supreme Court subsequently granted Sartin’s petition for review.

“Normally issues raised for the first time on appeal are not considered,” the Kansas Supreme Court wrote. But appellate courts in Kansas “have statutory authority to consider illegal sentence issues for the first time on appeal” under K.S.A. 22-3504(1), which states that an illegal sentence may be corrected at any time. 

Under K.S.A. 22-3504, an “illegal sentence” is one that was imposed in the absence of jurisdiction, is ambiguous with respect to the time and manner to be served, or “does not conform to statutory provisions in character or term of punishment authorized,” Kansas v. Noyce, 343 P.3d 105 (Kan. 2015). And, as the Kansas Supreme Court explained, such claims—whether a sentence is illegal and how the Kansas Sentencing Guidelines, as “statutory provisions,” are interpreted—are matters of law subject to unlimited review. State v. Jamerson, 433 P.3d 698 (Kan. 2019).

In State v. Murdock, 439 P.3d 307 (Kan. 2019) (Murdock II), the court ruled that “a subsequent change in the law cannot transform a legal sentence into an illegal sentence.” However, Murdock II made it clear that a defendant can still “receive the benefit of a change in the law that occurs while his or her case is pending on direct appeal” but requires subsequent claims under K.S.A. 22-3504(1) attacking “the original legality of the sentence at the time of pronouncement” to be based on “true changes in the law.” Thus, the Court concluded, “[t]he legality of Sartin’s sentence must be assessed by the comparability test applicable when his sentence was pronounced.”

The Court rejected the Court of Appeals’ narrow view of its jurisdiction as limited to Sartin’s appeal of the district court’s denial. Effectively, Sartin’s motion under K.S.A. 22-3504(1) opened the door to original review of any “illegal sentence” claims he made in his appellate brief, regardless of what was raised below.

Consequently, although Sartin’s motion in the district court had not addressed his four other prior Illinois convictions, he asserted on appeal that “if any one of the prior convictions was misclassified, the resulting criminal history score would not have conformed to statutory provisions and the Kansas sentence would have been illegal.” 

Accordingly, since the Court of Appeals had erred in refusing to consider these claims raised in his appellate brief, the Kansas Supreme Court remanded with instructions that it review them on the merits. See: State v. Sartin, 446 p.3d 1068 (Kan. 2019). 

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Related legal case

State v. Sartin

 

 

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