Samuel Schirer won in State v. Dickey, No. 110,325 (Kan. App. Oct. 14, 2016), obtaining a new sentence for Mr. Dickey on his second trip to the KSC. In the first case, blogged about here, the KSC held that a later factual determination regarding whether a prior burglary conviction was a person or nonperson offense was not permitted. After the first case, Mr. Dickey also had several probation revocation cases. The state argued that Mr. Dickey could not attack those sentences as illegal. The KSC held that misclassification of a prior conviction as a person felony resulted in an illegal sentence, which he could raise any time:
Our holding in Dickey I demonstrates that the proper classification of a prior crime is exclusively a matter of state statutory law. Which is simply to reiterate that "[b]ecause burglary of a 'dwelling' . . . was not included within the statutory elements making up the defendant's burglary adjudication . . . [it] should have been classified as a nonperson felony for criminal history purposes."
Having clarified that the challenge presented to Dickey's sentences in both Dickey I and here are challenges to the statutory propriety of the classification at issue—albeit with a thick overlay of constitutional law occasioned by the State's unconstitutional efforts to "save" Dickey's prior conviction as a person felony—there is no impediment to Dickey's claim that the underlying sentences he received after his probation was revoked in the three underlying cases are illegal. 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. The State's remaining efforts to impose a procedural bar to the relief Dickey seeks—arguments concerning retroactivity and res judicata—are all unavailing in the context of a motion to correct an illegal sentence which can be made at any time. Dickey's prior 1992 conviction was misclassified as a person felony, and the resulting sentences are illegal.
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