IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 124,861
STATE OF KANSAS,
Appellee,
v.
CHRISTOPHER MICHAEL JACOBSON,
Appellant.
SYLLABUS BY THE COURT
The law existing at the time of the original sentencing determines a sentence's
legality when a case arises from a motion to correct an illegal sentence.
Review of the judgment of the Court of Appeals in an unpublished opinion filed September 22,
2023. Appeal from Johnson District Court; CHRISTINA DUNN GYLLENBORG, judge. Oral argument held
March 28, 2024. Opinion filed July 26, 2024. Judgment of the Court of Appeals reversing the district
court, vacating the sentence, and remanding the case with directions is reversed. Judgment of the district
court is affirmed.
Emily Brandt, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.
Daniel G. Obermeier, assistant district attorney, argued the cause, and Shawn E. Minihan,
assistant district attorney, Stephen M. Howe, district attorney, and Kris W. Kobach, attorney general, were
on the briefs for appellee.
The opinion of the court was delivered by
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BILES, J.: The State seeks review of a Court of Appeals panel's decision ordering
resentencing of Christopher Michael Jacobson, who appealed the denial of his motion to
correct an illegal sentence. See State v. Jacobson, No. 124,861, 2023 WL 6171951, at *4
(Kan. App. 2023) (unpublished opinion). The State argues the panel's opinion conflicts
with State v. Clark,
313 Kan. 556, 572-73,
486 P.3d 591 (2021), which held the date of
original sentencing determines the applicable law for a motion to correct sentence. We
agree with the State.
Our law distinguishes between a direct appeal from sentencing and an appeal from
denial of a motion to correct an illegal sentence. In a direct appeal, the defendant benefits
from changes in the law occurring during the appeal process. But that is not true for the
latter, which is where Jacobson's case falls. See Clark, 313 Kan. at 572-73. The panel
mistakenly treated the appeal of his motion to correct an illegal sentence like a direct
appeal. We reverse the panel.
FACTUAL AND PROCEDURAL BACKGROUND
Jacobson pled guilty to one count of robbery, a severity level five, person felony,
for his conduct of knowingly taking a vehicle by force on December 13, 2013. See
K.S.A. 21-5420(a) ("Robbery is knowingly taking property from the person or presence
of another by force or by threat of bodily harm to any person."). The district court
accepted his plea and sentenced him in May 2015 to 130 months in prison based on a
criminal history score of A.
In 2019, Jacobson moved to correct an illegal sentence, claiming his criminal
history score was wrong when he was sentenced four years earlier. The district court
denied the motion and he appealed. During the appeal process, the parties agreed his
sentence was illegal. The Court of Appeals granted a joint motion to remand in a
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dispositional order, relying on State v. Smith, 309 Kan. 929, 930,
441 P.3d 472 (2019)
(remanding for resentencing to exclude defendant's Missouri municipal ordinance
violation because municipal ordinance violations are not crimes in Missouri). The order
directed the district court to exclude Jacobson's Missouri municipal ordinance violations
from his criminal history score. It also noted the parties could raise other criminal history
issues at resentencing.
Based on that invitation, Jacobson sought to reclassify his two attempted first-degree robbery convictions in Missouri as nonperson felonies. At the resentencing
hearing, the parties debated whether the district court should apply State v. Vandervort,
276 Kan. 164,
72 P.3d 925 (2003), or State v. Wetrich,
307 Kan. 552,
412 P.3d 984
(2018). See Clark, 313 Kan. at 571 (noting Wetrich altered Vandervort's interpretation of
how K.S.A. 21-6811[e] classifies out-of-state convictions for calculating an offender's
criminal history score). Jacobson argued Wetrich applied and required classification as
nonperson crimes.
The district court ultimately followed Vandervort and declined to reclassify the
Missouri convictions because Missouri first-degree robbery most closely compared to
Kansas robbery and aggravated robbery under Vandervort's test. It then excluded
Jacobson's Missouri municipal ordinance violations as directed by the earlier panel,
reduced his criminal history score to B, and resentenced him to 120 months'
imprisonment.
Jacobson appealed, insisting that Wetrich required the district court to classify the
Missouri convictions as nonperson crimes. The new panel agreed, vacated the sentence,
and remanded the case once again—this time ordering the district court apply Wetrich.
Jacobson, 2023 WL 6171951, at *6. The State petitioned our court for review, which we
granted. Jurisdiction is proper. K.S.A. 20-3018(b) (providing for petitions for review of
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Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to
review Court of Appeals decisions upon petition for review).
ANALYSIS
To decide whether Vandervort or Wetrich applies to Jacobson's case, we must
determine if the panel correctly categorized his resentencing challenge as a direct appeal
from sentencing instead of an illegal sentence proceeding's continuation. If not, the law in
effect at his original sentencing hearing controls. See Clark, 313 Kan. at 572-73. We hold
the panel erred, and that Vandervort, the law in effect when Jacobson was originally
sentenced, controls.
Standard of review
"Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question
of law over which the appellate court has unlimited review." State v. Claiborne, 315 Kan.
399, 400,
508 P.3d 1286 (2022).
Discussion
K.S.A. 22-3504(a) allows courts to "correct an illegal sentence at any time while
the defendant is serving such sentence." A sentence "that does not conform to the
applicable statutory provision" is illegal. K.S.A. 22-3504(c)(1). So, Jacobson's sentence,
which is partially based on the classification of his Missouri convictions, must conform to
K.S.A. 2013 Supp. 21-6811(e) ("The state of Kansas shall classify the crime as person or
nonperson."). See State v. Gales, 312 Kan. 475, Syl. ¶ 2,
476 P.3d 412 (2020) ("The
penalty parameters for an offense are fixed on the date the offense was committed.").
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To classify out-of-state convictions under K.S.A. 2013 Supp. 21-6811(e), a court
refers to "comparable offenses" in Kansas—but how to compare offenses changes based
on whether Vandervort or Wetrich governs. Under Vandervort, the "closest
approximation test" required comparable offenses "need only be comparable, not
identical." Vandervort, 276 Kan. at 179. This test was in effect from its publication on
July 25, 2003, to March 9, 2018, when the court reinterpreted K.S.A. 21-6118(e) in
Wetrich. See Wetrich,
307 Kan. at 562. Under Wetrich, an out-of-state conviction is
comparable to a Kansas offense only if the crime's elements are not broader than the
Kansas crime's elements.
307 Kan. at 562 ("In other words, the elements of the out-ofstate crime must be identical to, or narrower than, the elements of the Kansas crime to
which it is being referenced."); see also State v. Weber, 309 Kan. 1203, 1209,
442 P.3d
1044 (2019) (confirming Wetrich was a change in the law); K.S.A. 22-3504(c)(2)
("'Change in the law' means a statutory change or an opinion by an appellate court of the
state of Kansas, unless the opinion is issued while the sentence is pending an appeal from
the judgment of conviction.").
Deciding which caselaw applies requires separately determining what K.S.A. 22-
3504 means by "the sentence"—because Vandervort would govern Jacobson's original
2015 sentence, while Wetrich would govern his 2022 resentencing. See K.S.A. 22-
3504(c)(1) (An illegal sentence "does not conform to the applicable statutory
provision . . . at the time it is pronounced. A sentence is not an 'illegal sentence' because
of a change in the law that occurs after the sentence is pronounced."), (c)(2) (An appellate
court opinion "issued while the sentence is pending an appeal from the judgment of
conviction" is not a change in the law.).
In the Court of Appeals, Jacobson argued "the sentence" must be his resentencing
in 2022 because the original sentence was vacated. And from that perspective, he views
the current proceeding as a "direct appeal," rather than a continuation of his 2019 motion
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to correct an illegal sentence, citing State v. Smith, No. 118,042, 2020 WL 2504566, at
*10-11 (Kan. App. 2020) (unpublished opinion). The State countered that "the sentence"
means the one pronounced in 2015 and that a sentence's legality is always determined by
the law in effect on the original sentencing date, relying on Clark, 313 Kan. at 572, which
effectively overruled Smith.
The panel tried to distinguish Jacobson's case from Clark in order to follow Smith.
It was wrong to do so. In Smith, the defendant's original sentence in 2006 was upheld on
direct appeal. That sentence was later vacated in a separate appeal stemming from a
motion to correct an illegal sentence. On remand, the district court resentenced him in
2017. Smith appealed again, asking whether the law in effect at his original 2006
sentencing or at the 2017 resentencing should apply. The panel majority held the law in
2017 applied, reasoning:
"The order vacating Smith's original sentence became final when our Supreme Court
denied the State's petition for review. That action marked the end of the proceedings on
Smith's motion to correct illegal sentence. . . . Smith timely appealed from that
sentence—his only sentence that has any operative effect. This constitutes a direct appeal
of his sentence imposed by the district court on May 12, 2017." Smith, 2020 WL
2504566, at *11.
So, the Smith majority concluded the defendant should receive "'the benefit of a
change in the law during the pendency of a direct appeal'" and applied Wetrich. 2020 WL
2504566, at *11 (quoting State v. Murdock,
309 Kan. 585, 591-92,
439 P.3d 307 [2019]).
Judge Powell, however, dissented:
"I concur with the State's argument that the appeal before us is not a direct appeal case
but an appeal in a motion to correct an illegal sentence case, which is a collateral attack
on a sentence. I submit my view is bolstered by our illegal sentence statute, which
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describes a direct appeal as 'an appeal from the judgment of conviction.' K.S.A. 2019
Supp. 22-3504(c)." (Emphasis added.) 2020 WL 2504566, at *16 (Powell, J., dissenting).
About a year later, we examined that same question in Clark. There, the defendant
was originally sentenced in 2005 and moved to correct his sentence in 2017, which the
district court denied. On appeal, a Court of Appeals panel vacated the original sentence
and remanded for resentencing in line with Wetrich. See State v. Clark, No. 119,076,
2019 WL 1746772 (Kan. App. 2019) (unpublished opinion). But before resentencing,
new caselaw called the panel's decision into question. Still, the district court resentenced
Clark in 2019 under Wetrich based on the current law in effect, noting it was bound by
the appellate court's mandate. The State appealed, arguing the new caselaw clarified that
the sentence should be based on the law in effect in 2005. A different Court of Appeals
panel agreed this time with the State. See State v. Clark, No. 121,789,
2020 WL 1903820
(Kan. App. 2020) (unpublished opinion).
On review, we identified the issue as "whether Clark's sentence is controlled by
the law in effect at the time of his original sentence in 2005 or the law in effect at the
time of his resentencing in 2019." Clark, 313 Kan. at 558. We determined "the sentence"
in K.S.A. 22-3504(c) means the original sentence, explaining:
"[F]or purposes of determining the legality of Clark's sentence, the law from the date of
his original sentencing should control. After all, this case arose from Clark's 2017
motion to correct his 2005 sentence. Clark's resentencing in 2019 only occurred because
[the first panel] held his 2005 sentence was illegal—a holding that became erroneous as a
result of decisions we issued prior to Clark's resentencing in 2019. Thus, if Clark's
sentence was lawful in 2005, he should have never been resentenced in 2019.
....
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". . . The legality of Clark's sentence became 'fixed' when his sentence was
pronounced in 2005. Thus, whether his prior Oklahoma conviction is comparable to a
Kansas offense should be determined under the law as it existed in 2005." (Emphasis
added.) 313 Kan. at 572-73.
As the State correctly observes here, our conclusion in Clark effectively overruled
Smith. Compare Clark, 313 Kan. at 572 (determining the original sentencing date
controls the law in effect), with Smith, 2020 WL 2504566, at *11 (determining the
resentencing date controls the law in effect). But the Jacobson panel applied Smith
anyway, believing Clark to be inapplicable. It reasoned:
"[O]ur Supreme Court determined Clark's original sentence was lawful and he never
should have been resentenced. In other words, the legality of Clark's sentence became
'"fixed at a discrete moment in time'" when his lawful sentence was pronounced at his
original sentencing.
"Here, Jacobson's original sentence was illegal. Thus, it was necessary for
Jacobson's original sentence to be vacated and for the district court to resentence him.
The legality of Jacobson's sentence is controlled by the law in effect at the time of his
resentencing in 2022 for his current crime of conviction. The proceedings on Jacobson's
motion to correct illegal sentence and the order vacating Jacobson's original sentence
became final when we issued our mandate on August 20, 2021. This appeal is not a
continuation of the prior proceedings involving Jacobson's 2019 motion to correct illegal
sentence. On remand, the district court resentenced Jacobson as directed by this court.
Jacobson's current appeal is from the new sentence imposed in 2022—'the only sentence
that has any operative effect.' Because this is Jacobson's direct appeal from his new
sentence, he '"may seek and obtain the benefit of a change in the law during the pendency
of [his] direct appeal."' [Citations omitted.]" (Emphases added.) Jacobson, 2023 WL
6171951, at *4.
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The panel's logic misses the mark in several ways. First, it deviates from Clark's
unambiguous holding that a case arising from a motion to correct an illegal sentence
determines legality by the law existing at the time of the original sentencing. Clark noted
remand is part of the journey initiated by such a motion, which ends once the illegal
sentence is corrected. See Clark, 313 Kan. at 572-73 ("After all, this case arose from
Clark's 2017 motion to correct his 2005 sentence.").
Second, at no point does Clark suggest the law's application should vary based on
the original sentence's legality. The statutory language does not differentiate between
original sentencing and resentencing. See K.S.A. 22-3504. Instead, it merely provides a
sentence's legality is fixed at a discrete moment when it is pronounced. K.S.A. 22-
3504(c)(1). This is simple, fair, and consistent with K.S.A. 22-2103 ("[The Kansas Code
of Criminal Procedure] is intended to provide for the just determination of every criminal
proceeding. Its provisions shall be construed to secure simplicity in procedure, fairness in
administration and the elimination of unjustifiable expense and delay.").
Third, nothing justifies how the panel's decision results in different law applying
from one defendant to another, depending on their original sentence's legality. For
example, consider a hypothetical defendant in similar circumstances to Jacobson. In this
scenario, the defendant commits the same offense in 2013, was sentenced in 2015, and
subsequently moved to correct an illegal sentence in 2019. But unlike Jacobson, the
original sentencing court correctly sentenced the defendant in 2015 by excluding
Missouri municipal ordinance violations in the criminal history score. To classify our
hypothetical defendant's Missouri felony convictions, the Jacobson panel would apply
Vandervort, even though it applied Wetrich to Jacobson because the original sentencing
court mistakenly included the municipal violations. In other words, the panel's reasoning
allows Jacobson—but not our hypothetical defendant—to benefit from a change in the
law. How is this fair?
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Fourth, the Jacobson panel mistook the meaning of "direct appeal" when
categorizing Jacobson's case. Typically, criminal defendants challenge their sentence in
three ways: (1) a direct appeal from sentencing, (2) an appeal from a district court's
denial of a motion to correct an illegal sentence under K.S.A. 22-3504, and (3) a civil
proceeding collaterally challenging the sentence under K.S.A. 60-1507. State v. Phinney,
280 Kan. 394, 398-99,
122 P.3d 356 (2005). In Murdock, the court clarified:
"[F]or purposes of a motion to correct an illegal sentence, neither party can avail itself
of subsequent changes in the law.
"Here, we pause to note that today's holding does not disturb our longstanding
rule that in a direct appeal, a defendant will receive the benefit of any change in the law
that occurs while the direct appeal is pending. See, e.g., State v. Ford, 302 Kan. 455,
471,
353 P.3d 1143 (2015) ('[I]t is generally true that changes in the law apply
prospectively and only to cases on direct review.'). To the extent our prior caselaw
confused the procedural mechanism of a direct appeal with a motion to correct an illegal
sentence, we now clarify the distinction. Put simply, a party may seek and obtain the
benefit of a change in the law during the pendency of a direct appeal, but a party moving
to correct an illegal sentence is stuck with the law in effect at the time the sentence was
pronounced." (Emphases added.) Murdock, 309 Kan. at 591-92.
An appeal from sentencing or resentencing necessarily falls under the first method
when that appeal is directly "from the judgment of conviction," not an appeal of a district
court's ruling on a motion to correct an illegal sentence, which is the second method. See
K.S.A. 22-3504(c)(2). But the Jacobson panel categorized the present case as a direct
appeal based on an inapplicable statute by following Smith. Jacobson, 2023 WL
6171951, at *4; see also Smith,
2020 WL 2504566, at *11 (relying erroneously on an
interpretation of K.S.A. 60-1507 in Baker v. State,
297 Kan. 486, Syl.,
303 P.3d 675
[2013]). The panel's decision is inconsistent with K.S.A. 22-3504(c) and Clark.
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Judgment of the Court of Appeals vacating the sentence and remanding the case
for resentencing is reversed. Judgment of the district court is affirmed.
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