State v. Weeks

S
                           NOT DESIGNATED FOR PUBLICATION

                                            No. 122,691


               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                          JOHN L. WEEKS,
                                            Appellant.


                                  MEMORANDUM OPINION


        Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed April 23, 2021.
Affirmed.


        Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.


        Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.


Before HILL, P.J., BRUNS and SCHROEDER, JJ.


        PER CURIAM: John L. Weeks appeals the denial of his motion to correct an illegal
sentence. His sentence is illegal, he argues, because the court scored his 1983 Arkansas
rape conviction as a person felony. Scoring person or nonperson out-of-state convictions
depends on a comparison of the elements of the out-of-state offense with the elements of
the comparable Kansas offenses. Weeks contends that since the elements of the Arkansas
rape statute were not identical to or narrower than the elements of the Kansas rape statute,



                                                   1
the two crimes are not comparable and therefore his Arkansas conviction was improperly
scored.


       But Weeks uses a test announced by our Supreme Court in 2018 when it changed
the law. That is not the test that should be used to decide this question. Under the law that
applied when Weeks' sentences were imposed, courts were to look for the comparable
Kansas offense that was the closest approximation to the out-of-state crime. The offense
that most closely approximated the Arkansas rape offense is the Kansas rape statute—a
person felony. Since rape in Kansas is a person felony, the court properly scored the
Arkansas conviction as a person crime when it computed Weeks' criminal history score.
We find no scoring error and affirm.


Weeks' convictions provide a context for our ruling.


       During a five-month span in 1999, Weeks committed three counts of aggravated
kidnapping, three counts of rape, and three counts of aggravated criminal sodomy. For
these crimes, he received an upward departure 1,856-month prison sentence. On appeal,
this court affirmed his convictions but vacated his upward departure sentence and
remanded for resentencing. State v. Weeks, No. 86,264, unpublished opinion filed June 7,
2002, slip op. at 3, 31 (Kan. App.). In December 2002, the court resentenced Weeks to
534 months' imprisonment. His criminal history score was found to be D based on a 1983
Arkansas rape conviction, which was scored as a person felony. He did not appeal that
sentence.


       In July 2014 and in March 2015, Weeks moved to correct an illegal sentence
based on State v. Murdock, 

299 Kan. 312

, 313, 

323 P.3d 846

(2014) (Murdock I),
overruled by State v. Keel, 

302 Kan. 560

, 

357 P.3d 251

(2015), cert. denied 

577 U.S.
1090

(2016). The district court denied his motions finding Murdock I did not apply
retroactively to his sentence. This court affirmed on appeal. State v. Weeks, No. 114,531,

                                              2

2017 WL 839516

, at *2 (Kan. App.) (unpublished opinion), cert. denied 

138 S. Ct. 450

(2017).


       Three years later, in 2020, Weeks filed another motion to correct an illegal
sentence arguing Murdock I and Murdock II mandated that his out-of-state conviction be
classified as a nonperson felony. See State v. Murdock, 

309 Kan. 585

, 591, 

439 P.3d 307

(2019) (Murdock II). The district court denied the motion finding both that res judicata
precluded Weeks' claim, that Murdock I did not apply retroactively, and that Weeks'
sentence was a legal sentence when imposed. Weeks appeals that decision.


       In this appeal, Weeks contends that res judicata does not apply. He also makes a
new argument that there was no single comparable Kansas statute to the Arkansas rape
statute because the Arkansas rape statute was broader than the Kansas rape statute by
encompassing acts such as sodomy (which were illegal in Kansas under a different
statute).


       Weeks cites no authority for his contention that courts can only look to one Kansas
offense when classifying an out-of-state crime. The statute states courts should look to
comparable "offenses." K.S.A. 1999 Supp. 21-4711(e). Both rape and aggravated
criminal sodomy in Kansas were classified as person crimes. But it is unnecessary to
decide that issue for this appeal.


How courts score out-of-state offenses has not remained static.


       We begin with some fundamental points of law. An illegal sentence may be
corrected at any time while the defendant is serving such sentence. K.S.A. 2020 Supp.
22-3504(a). Whether a sentence is illegal under K.S.A. 22-3504 is a question of law over
which we have unlimited review. State v. Sartin, 

310 Kan. 367

, 369-70, 

446 P.3d 1068

(2019).

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       The Murdock I court held that out-of-state convictions committed before 1993 had
to be classified as nonperson 

offenses. 299 Kan. at 319

. That decision was quickly
overruled by 

Keel. 302 Kan. at 589

. Murdock I was controlling law only "for a short
window of time." Murdock 

II, 309 Kan. at 593

; State v. Adams, 

58 Kan. App. 2d 933

,
944, 

476 P.3d 796

(2020). After that, the Murdock II court held that the legality of a
sentence is controlled by the law in effect when the sentence was 

pronounced. 309 Kan.
at 591

. We note that Weeks was sentenced in 2002 for crimes in 1999.


       Applicable here is K.S.A. 1999 Supp. 21-4711(e). To calculate an offender's
criminal history, out-of-state convictions should be scored as person or nonperson
offenses based on "comparable" Kansas offenses:


               "Out-of-state convictions and juvenile adjudications will be used in classifying
       the offender's criminal history. An out-of-state crime will be classified as either a felony
       or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in
       another state, it will be counted as a felony in Kansas. The state of Kansas shall classify
       the crime as person or nonperson. In designating a crime as person or nonperson
       comparable offenses shall be referred to. If the state of Kansas does not have a
       comparable offense, the out-of-state conviction shall be classified as a nonperson crime."
       K.S.A. 1999 Supp. 21-4711(e).


       Weeks' argument presumes that "comparable" means the elements of the out-of-
state crime must be identical to or narrower than the elements of a Kansas crime. But that
was not the law in Kansas until our Supreme Court decided State v. Wetrich, 

307 Kan.
552

, 562, 

412 P.3d 984

(2018). Wetrich was a change in the law. State v. Weber, 

309
Kan. 1203

, 1209, 

442 P.3d 1044

(2019).


       Before Wetrich, Kansas courts held that the comparable Kansas offense was the
"closest approximation" to the out-of-state crime. Under this test, the offenses "need only
be comparable, not identical." State v. Vandervort, 

276 Kan. 164

, 179, 

72 P.3d 925

                                                     4
(2003), overruled on other grounds by State v. Dickey, 

301 Kan. 1018

, 

350 P.3d 1054

(2015). The Vandervort court cited an earlier decision by this court that held the court
must look to the "most comparable" Kansas offense to determine whether a conviction is
classified as a person or nonperson 

crime. 276 Kan. at 179

(citing State v. Hernandez, 

24
Kan. App. 2d 285

, 287, 

944 P.2d 188

[1997]). The closest approximation test was the
applicable law when Weeks committed his crimes and was sentenced. See 

Sartin, 310
Kan. at 372

. The question is whether the gravamen of the out-of-state crime closely
approximates a Kansas crime. 

Sartin, 310 Kan. at 374

.


We compare two rape statutes.


       The Arkansas rape statute in effect at the time of Weeks' 1983 Arkansas
conviction has these elements:


       "(1) A person commits rape if he engages in sexual intercourse or deviate sexual activity
       with another person:
       (a) by forcible compulsion; or
       (b) who is incapable of consent because he is physically helpless; or
       (c) who is less than (11) years old.
       "(2) Rape is a class Y felony." Ark. Stat. Ann. § 41-1803 (Repl. 1977).


"Deviate sexual activity" included "[t]he penetration, however slight, of the vagina or
anus of one person by any body member or foreign instrument manipulated by another
person." Ark. Stat. Ann. § 41-1801(1)(b) (Repl. 1977).


       When Weeks committed these crimes in Kansas, the Kansas rape statute
provided:


               "(a) Rape is: (1) Sexual intercourse with a person who does not consent to the
       sexual intercourse, under any of the following circumstances:

                                                   5
               (A) When the victim is overcome by force or fear;
               (B) when the victim is unconscious or physically powerless; or
               (C) when the victim is incapable of giving consent because of mental deficiency
       or disease, or when the victim is incapable of giving consent because of the effect of any
       alcoholic liquor, narcotic, drug or other substance, which condition was known by the
       offender or was reasonably apparent to the offender;
               (2) sexual intercourse with a child who is under 14 years of age;
               (3) sexual intercourse with a victim when the victim's consent was obtained
       through a knowing misrepresentation made by the offender that the sexual intercourse
       was a medically or therapeutically necessary procedure; or
               (4) sexual intercourse with a victim when the victim's consent was obtained
       through a knowing misrepresentation made by the offender that the sexual intercourse
       was a legally required procedure within the scope of the offender's authority." K.S.A.
       1999 Supp. 21-3502.


"Sexual intercourse" meant "any penetration of the female sex organ by a finger, the male
sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual
intercourse." K.S.A. 1999 Supp. 21-3501(1).


       Rape was designated as a person felony. K.S.A. 1999 Supp. 21-3502(c).
Aggravated criminal sodomy was also a person felony in Kansas. K.S.A. 1999 Supp. 21-
3506. "Sodomy" meant "oral contact or oral penetration of the female genitalia or oral
contact of the male genitalia; anal penetration, however slight, of a male or female by any
body part or object; or oral or anal copulation or sexual intercourse between a person and
an animal." K.S.A. 1999 Supp. 21-3501(2).


       According to the directions given in Sartin, we are to look at the gravamen of each
statute. The gravamen, or essence, of the Arkansas rape statute closely approximates the
Kansas rape statute. It is true that the statutes are not identical, but that was not required
when Weeks was sentenced. The Kansas rape offense was the most comparable offense.



                                                   6
For that reason, his 1983 Arkansas rape conviction was properly classified as a person
crime. We need not consider the res judicata issue raised in the appeal.


       We hold there is no sentencing error here.


       Affirmed.




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