Opinion
No. 112630.
04-03-2015
STATE of Kansas, Appellee, v. Kevin McCLUNEY, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Kevin McCluney appeals the district court's decision denying his motion to correct illegal sentence. We granted McCluney's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
McCluney was convicted of eight counts of burglary and eight counts of felony theft. His criminal history included a 1996 conviction of rape and a 1996 conviction of kidnapping, both from Wyandotte County, Kansas. Based on a criminal history score of B, the district court sentenced McCluney to 32 years' imprisonment.
On June 23, 2014, McCluney filed a pro se motion to correct illegal sentence, alleging that based upon the Kansas Supreme Court decision in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, his prior convictions must be scored as nonperson felonies for criminal history purposes. The district court summarily denied McCluney's motion, finding that Murdock did not apply to McCluney's case. McCluney timely appealed the denial of his motion to correct illegal sentence.
On appeal, McCluney, now represented by counsel, contends “the district court erred by failing to amend his criminal history.” However, McCluney's counsel acknowledges that our Supreme Court's decision in Murdock applies only to out-of-state convictions occurring prior to 1993.
In Murdock, our Supreme Court held that when calculating a defendant's criminal history that includes out-of-state convictions committed prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. , the out-of-state convictions must be classified as nonperson offenses. 299 Kan. 312, Syl. ¶ 5. Here, the prior convictions that place McCluney in criminal history category B include a 1996 rape conviction and a 1996 kidnapping conviction, both from Wyandotte County, Kansas. As the district court found, Murdock does not apply to McCluney's case because his prior convictions occurred after the enactment of the KSGA.
Affirmed.