State v. Long

NOT DESIGNATED FOR PUBLICATION

No. 114,699

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARLIN LONG,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed June 10, 2016.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h).

Before MALONE, C.J., LEBEN, J., and JOHNSON, S.J.

LEBEN, J.: Marlin Long appeals the district court's denial of his motion to correct
an illegal sentence. We granted his motion for summary disposition of the appeal under
K.S.A. 2015 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2015 Kan. Ct.
R. Annot. 67).

In a 1998 jury trial, Long was convicted on five counts of rape, two counts of
aggravated criminal sodomy, and one count of aggravated burglary. At sentencing, the
district court assigned Long a criminal-history score of A—the highest score possible—
because of four prior felony convictions that the court classified as person felonies, or
crimes against a person. Long was then sentenced to 1,487 months in prison.
2


In June 2014, acting without an attorney, Long filed a motion asking the district
court to set aside his conviction because it was illegal. Long argued that because he had
pled guilty to the four prior person felonies on the same day, they could not be viewed as
separate convictions. The district court then apparently appointed a public defender to
represent Long; in January 2015, that attorney filed two additional motions with the
district court arguing that Long's sentence was illegal under State v. Murdock, 299 Kan.
312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014,
overruled by State v. Keel, 302 Kan. 560, 589, 357 P.3d 251 (2015), cert. denied 136 S.
Ct. 865 (2016), and State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). The district
court denied Long's motions, and he appealed.

Whether a sentence is illegal is a question of law, so we review Long's appeal
independently and without any required deference to the district court. State v. Collins,
303 Kan. 472, 473, 362 P.3d 1098 (2015).

State v. Roderick, 259 Kan. 107, 911 P.2d 159 (1996), controls the motion Long
filed on his own behalf. There, the Kansas Supreme Court held that multiple convictions
entered on the same day in different cases are considered separate convictions when
calculating a defendant's criminal-history score. 259 Kan. at 116. On April 3, 1994, Long
pled guilty in four different burglary cases. So in light of Roderick, the district court
properly considered Long's prior person-felony convictions as four separate convictions.

The motions filed by Long's attorney fail as well. The cases cited to support
Long's position in those motions—Murdock and Dickey—do not apply here. Murdock
held that out-of-state convictions that occurred before July 1, 1993, could not be
classified as person felonies when determining a person's criminal-history score. 299
Kan. 312, Syl. ¶ 5. But the Kansas Supreme Court overruled Murdock last year. Keel, 302
Kan. at 589. And even if Murdock had not been overruled, it would not help Long. The
3

felony convictions leading to Long's criminal-history score were in-state convictions
from 1994 for conduct that occurred after July 1, 1993. Dickey is equally inapplicable. In
Dickey, the Kansas Supreme Court held that a district court was constitutionally
prohibited from classifying Dickey's prior burglary conviction as a person felony because
the burglary statute in effect at the time of his conviction (before July 1, 1993) did not
require the jury to find that he had committed an act that would make the burglary a
person felony under today's rules for classifying criminal convictions when determining
the guidelines sentence. 301 Kan. at 1039-40. Nothing in Long's motion explains why he
believes Dickey applies to his sentencing, and unlike in Dickey, the burglary statute in
effect at the time of Long's conviction (after July 1, 1993) did require the jury to find that
he'd committed an act that would make the burglary a person crime under today's rules
for classifying convictions.

We therefore conclude that the district court did not err in denying Long's motions
to correct an illegal sentence, and we affirm the district court's judgment.