Opinion
Nos. 114 066 114 069 114 067 114 070 114 068.
04-29-2016
STATE of Kansas, Appellee, v. John E. PENN, Appellant.
MEMORANDUM OPINION
PER CURIAM.
John E. Penn appeals the district court's decision to deny his motion to correct an illegal sentence. We granted Penn's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2015 Kan. Ct. R. Annot. 67). The State has filed a response and requested that the district court's judgment be affirmed.
In 1981, Penn pled guilty in case No. 80 CR 2124 to one count of theft. The district court sentenced him to an indeterminate prison term of 1 to 10 years.
In 1982, Penn pled guilty in case No. 82 CR 1206 to one count each of burglary and theft. The district court sentenced him to concurrent indeterminate prison terms of 2 to 10 years.
In 1988, Penn pled guilty in case No. 88 CR 896 to one count of theft. The district court sentenced him to an indeterminate prison term of 1 to 2 years.
In 1990, Penn pled guilty in case No. 89 CR 2359 to one count of possession of cocaine. The district court imposed an indeterminate prison sentence of 3 to 10 years.
In 1993, Penn entered a no contest plea in case No. 93 CR 567 to one count each of robbery, making a false writing, and conspiracy to possess cocaine. The district court sentenced him to an indeterminate prison term of 3 to 10 years.
Penn subsequently sought to have his sentences converted to guidelines sentences under the Kansas Sentencing Guidelines Act. A panel of this court held that because Penn was ineligible for retroactive application of the guidelines for his 1989 and 1993 crimes, he was not eligible for retroactive application of the guidelines to his other offenses. State v. Penn, No. 71,689, unpublished opinion filed August 25, 1995, rev. denied 258 Kan. 862 (1995).
In 2014, Penn 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, Syl. ¶ 9, 357 P.3d 251 (2015), cert. denied 136 S.Ct. 865 (2016). In the motion, Penn requested that the district court convert all of his indeterminate sentences to guidelines sentences. The district court denied the motion, finding that the holding in Murdock “does not provide a basis for the relief requested by the defendant.” Penn timely appealed from that ruling.
On appeal, Penn challenges the district court's refusal to convert his indeterminate sentences to guidelines sentences. As the district court concluded, however, the holding in Murdock provided no authority for the district court to convert Penn's indeterminate sentences to guidelines sentences. Moreover, our Supreme Court's holding in Murdock has been overruled in Keel. Thus, the district court did not err in denying Penn's motion to correct an illegal sentence.
Affirmed.