State v. Ray

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NOT DESIGNATED FOR PUBLICATION

No. 114,621

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ORVAL NATHAN RAY,
Appellant.


MEMORANDUM OPINION

Appeal from Cowley District Court; JOHN E. SANDERS, judge. Opinion filed May 6, 2016.
Affirmed.

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

Before GARDNER, P.J., LEBEN, J., and HEBERT, S. J.

Per Curiam: Orval Nathan Ray appeals the district court's denial of his motion to
correct an illegal sentence. But Ray's motion is based on a case that has been overruled,
defeating his claim of error. Accordingly, we affirm the denial of his motion.

We accepted this appeal for summary disposition under K.S.A. 2015 Supp. 21-
6820(g) and (h) and Supreme Court Rule 7.041A (2015 Kan. Ct. R. Annot. 67), based on
Ray's unopposed motion for this non-briefing disposition.

On June 20, 1997, a jury convicted Ray of one count kidnapping (a severity level
3 person felony), one count aggravated robbery (a severity level 3 person felony), one
count conspiracy to commit aggravated robbery (a severity level 5 nonperson felony),
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and one count aggravated burglary (a severity level 5 person felony). The district court
initially sentenced Ray to a total of 275 months' imprisonment with 36 months'
postrelease supervision.

Ray's presentence investigation report included in his criminal history four 1980
Kansas convictions classified as person felonies, among other convictions. These person
felonies consisted of two counts aggravated robbery and two counts robbery. The
sentencing court found Ray's criminal history score was an A.

Then, in March 2000, the district court resentenced Ray to 194 months'
imprisonment for kidnapping, plus a consecutive sentence of 64 months for robbery and
aggravated burglary, with 36 months' postrelease supervision.

Ray filed a motion to correct an illegal sentence based on 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, 357 P.3d 251 (2015), cert. denied 136 S. Ct.
865 (2016). Ray claimed that all of his prior pre-Kansas Sentencing Guidelines Act
(KSGA) felony convictions should be reclassified for sentencing purposes as nonperson
felonies, even though all of his prior convictions were in-state convictions. The district
court correctly found that our Supreme Court modified its original ruling in Murdock. As
per the modification, in-state pre-KSGA crimes were excluded from the ruling that they
should be classified as nonperson felonies. The district court summarily denied Ray's
motion, finding Murdock did not apply. Ray timely appeals.

On appeal, Ray reasserts his argument that the district court erred by classifying
his pre-KSGA convictions as person crimes. He further contends the district court failed
to use the correct criminal history score of E for purposes of sentencing. As Ray
acknowledges, however, Keel is clear precedent contrary to his argument. This court is
duty-bound to follow Kansas Supreme Court precedent unless there is some indication
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the court is departing from its previous position. See State v. Hall, 298 Kan. 978, 983,
319 P.3d 506 (2014). There is no indication our Supreme Court is departing from its
position in Keel. Therefore, the district court did not err by denying Ray's motion to
correct an illegal sentence.

Furthermore, Murdock provides no basis for relief because it was specifically
overruled by Keel. See Keel, 302 Kan. 560, Syl. ¶ 9. The Keel court ruled that when
designating a pre-KSGA conviction as a person or nonperson crime in the criminal
history, the court must consider how the crimes would have been classified based on the
classification in effect for the comparable Kansas offense at the time the current crime of
conviction was committed. Keel, 302 Kan. 560, Syl. ¶¶ 8-9.

At the time Ray committed his current crime, both aggravated robbery and
robbery were scored as person offenses in Kansas. See K.S.A. 21-3427 (Furse 1995) and
K.S.A. 21-3426 (Furse 1995). Accordingly, we conclude the district court did not err by
denying Ray's motion to correct an illegal sentence.

Affirmed.