1

NOT DESIGNATED FOR PUBLICATION

No. 122,191

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JERRY STARK,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed September 25, 

2020. Affirmed.

Jerry Stark, appellant pro se.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before MALONE, P.J., BUSER and POWELL, JJ.

PER CURIAM: In 2000, a jury convicted Jerry Stark of aggravated indecent 

liberties with a child. Since his conviction, Stark has filed four motions to correct an 

illegal sentence. The most recent motion, filed in October 2019, is the subject of this 

appeal. The district court treated his motion as a K.S.A. 60-1507 motion and summarily 

denied it as untimely and successive. Stark appeals, arguing his sentence was illegal. We 

find that Stark is serving a legal sentence, so we affirm the district court's judgment.
2

FACTS AND PROCEDURAL HISTORY

We will set forth the facts and procedural history of Stark's case as best we can 

from the record on appeal. In October 2000, a jury convicted Stark of aggravated 

indecent liberties with a child. The crime was committed in July 2000. Stark's criminal 

history included four 1982 Florida convictions, three for sexual battery and one for lewd, 

lascivious, or indecent assault upon or in the presence of a child, which the district court 

scored as person felonies. The district court sentenced Stark to 494 months' imprisonment 

with 36 months' postrelease supervision. Stark appealed and this court affirmed his 

convictions. State v. Stark, No. 86,389 unpublished opinion filed March 8, 2002 (Kan. 

App.). The clerk issued the mandate in June 2002.

On June 2, 2014, Stark filed his first motion to correct an illegal sentence, arguing 

his prior Florida convictions should have been scored as nonperson felonies based on 

State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel, 302 

Kan. 560, ¶ 9, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016) (Murdock I). The 

motion was set for hearing on July 11, 2014, but it is unclear whether a hearing occurred.

Then on December 24, 2014, Stark filed his second motion to correct illegal 

sentence, again arguing that his prior Florida convictions should have been scored as 

nonperson felonies based on Murdock I. The district court denied his motion. Stark 

appealed and a panel of this court affirmed the district court's ruling. State v. Stark, No. 

113,583, 2015 WL 7436045 (Kan. App. 2015) (unpublished opinion). This court 

explained that Stark was not entitled to relief under Murdock I because that decision had 

been overruled by the Kansas Supreme Court in Keel. Stark, 2015 WL 7436045, at *2.

On June 6, 2019, Stark filed his third motion to correct illegal sentence, again 

arguing Murdock I required his Florida convictions to be scored as nonperson crimes. On 

June 28, 2019, the district court denied Stark's motion, stating the Court of Appeals had 
3

previously ruled on this issue. Stark filed a notice of appeal on July 15, 2019. On 

September 10, 2019, the deputy clerk of this court sent Stark a letter stating his appeal 

had not been docketed because he had not paid the docketing fee or presented an order 

stating he was indigent. On November 18, 2019, Stark filed a motion in district court to 

dismiss his appeal. The district court set his motion to dismiss for hearing on December 

17, 2019, but nothing further on this matter appears in the record.

Meanwhile, on October 21, 2019, Stark filed the instant "K.S.A. 60-1507 Motion 

to Correct an Illegal Sentence." Stark again argued that the district court should have 

classified his prior Florida convictions as nonperson felonies but cited new authority in 

support: State v. Murdock, 309 Kan. 585, 439 P.3d 307 (2019) (Murdock II). Stark 

argued that his case was identical to Murdock II and, thus, should be subject to the same 

outcome, i.e., reclassification of his 1982 out-of-state convictions as nonperson crimes. 

On November 5, 2019, the district court treated Stark's motion as a K.S.A. 60-1507

motion and summarily denied it as both untimely and successive. Stark timely appealed.

ANALYSIS

Stark's appellate brief states that he is appealing his "Motion to Correct an [I]llegal 

[S]entence pursuant to K.S.A. 22-3504." His brief on appeal is essentially the same as the 

motion he filed before the district court. The first 11 pages are an almost verbatim 

recitation of the Kansas Supreme Court's opinion in Murdock II, with a few minor word 

changes. Stark then argues, in one paragraph, that because his prior out-of-state 

convictions occurred during the same time frame as Murdock's prior out-of-state 

convictions, he must be resentenced like Murdock was. The State argues the district court 

correctly denied Stark's K.S.A. 60-1507 motion as untimely and successive and that it 

could also be denied on the grounds of collateral estoppel.
4

Pro se pleadings must be liberally construed to "'giv[e] effect to the pleading's 

content rather than the labels and forms used to articulate the defendant's arguments.'"

State v. Ditges, 306 Kan. 454, 457, 394 P.3d 859 (2017). Stark titled his motion a "K.S.A. 

60-1507 Motion to Correct an Illegal Sentence." Although Stark used a habeas corpus 

motion form to file his motion, he barely filled in the preprinted sections of the form and 

instead included multiple typed pages containing his argument. He starts by citing K.S.A. 

22-3504 and stating that he can bring a motion to correct illegal sentence at any time 

because such a motion is not subject to the same time constraints as a K.S.A. 60-1507

motion. Thus, the district court should have treated Stark's motion as a motion to correct 

illegal sentence and not as a K.S.A. 60-1507 motion. See State v. Gilbert, 299 Kan. 797, 

802-03, 326 P.3d 1060 (2014) (finding the substance of pro se pleading to be a motion to 

correct illegal sentence when appellant stated he could raise an illegal sentence argument 

at any time). But the district court's failure to do so was harmless because Stark is not 

entitled to relief on his motion to correct illegal sentence.

Motions under K.S.A. 22-3504 and K.S.A. 60-1507 are treated the same for 

determining when an evidentiary hearing is required. Makthepharak v. State, 298 Kan. 

573, 577, 314 P.3d 876 (2013). Whether a sentence is illegal under K.S.A. 22-3504 is a 

question of law over which the appellate court has unlimited review. State v. Lee, 304 

Kan. 416, 417, 372 P.3d 415 (2016). An illegal sentence is one "[i]mposed by a court 

without jurisdiction; that does not conform to the applicable statutory provision, either in 

character or punishment; or that is ambiguous with respect to the time and manner in 

which it is to be served at the time it is pronounced." K.S.A. 2019 Supp. 22-3504(c)(1). A 

legal sentence does not become an illegal sentence "because of a change in the law that 

occurs after the sentence is pronounced." K.S.A. 2019 Supp. 22-3504(c)(1).

Stark's illegal sentence claim fails for two reasons. First, his case is not identical to 

Murdock II and it provides him no relief. Second, he does not advance any argument that 

his sentence was illegal when it was pronounced in November 2000. And even if this 
5

court were to address the classification issue, his Florida convictions were properly 

scored as person crimes under the laws in effect in 2000.

First, Stark's reliance on Murdock II is misplaced. Stark's entire illegal sentence 

claim is based on the fact that Murdock had prior out-of-state convictions from 1984 and 

Stark also has prior out-of-state convictions from 1982. Stark argues that because of this 

similarity, he is entitled to the same outcome that Murdock received in Murdock II, i.e.,

resentencing with the prior out-of-state convictions being scored as nonperson crimes.

But Murdock's prior convictions were only scored as nonperson crimes because of the 

unique procedural nature of his case, which is not present in Stark's case.

After Murdock prevailed in Murdock I, he was resentenced in 2015 during the 

brief period of time that the holding in Murdock I was still good law and before it was 

overruled in Keel. Thus, Murdock's sentence in 2015 was legal when it was imposed and 

did not become illegal when Keel later changed the law. Murdock II, 309 Kan. at 591. 

Stark is not in the same position as Murdock. Stark was sentenced in 2000 and his 

sentence was final when the mandate was issued in his direct appeal in June 2002. Stark 

has never been resentenced like Murdock was, so he does not receive the benefit of the 

holding in Murdock I, especially after that holding was overruled in Keel.

Second, Stark advances no argument that his sentence was illegal when it was 

pronounced in November 2000. See Murdock II, 309 Kan. at 591 (stating the legality of a 

sentence is controlled by the law in effect when the sentence was pronounced). Stark 

does not explain why his prior Florida convictions should have been scored as nonperson 

crimes based on the laws in effect in 2000. In this court's 2015 opinion denying Stark's 

appeal from his second motion to correct illegal sentence, we stated:

"Stark acknowledges that our Supreme Court's holding in Murdock has been 

overruled in Keel. In Keel, our Supreme Court held that when designating a pre-KSGA 
6

conviction as a person or nonperson crime for criminal history purposes, the court must 

determine the classification of the prior conviction as of the time the current crime of 

conviction was committed. 302 Kan. at 577. Sexual battery and lewd and lascivious 

behavior were scored as person crimes in Kansas at the time Stark's current crime of 

aggravated indecent liberties with a child was committed in 2000. See K.S.A. 21-3517 

(Furse 1995); K.S.A. 21-3508 (Furse 1995). Based on Keel, the district court did not err 

in classifying Stark's pre-KSGA convictions as person crimes for criminal history 

purposes. Thus, the district court did not err in denying Stark's motion to correct illegal 

sentence." Stark, 2015 WL 7436045, at *1.

At the time of Stark's sentencing, prior out-of-state convictions were classified as 

person or nonperson offenses by comparing the out-of-state conviction to the 

"comparable" Kansas offense. See K.S.A. 2000 Supp. 21-4711(e). A "comparable"

Kansas offense did not have to be identical to the out-of-state crime when the district 

court sentenced Stark. See State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003), 

overruled by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). As we stated in our 

2015 opinion addressing Stark's claim, his 1982 Florida convictions were properly scored

as person crimes because the comparable offenses in Kansas were person crimes at the 

time of Stark's current crime of conviction. Stark, 2015 WL 7436045, at *1. Thus, Stark's 

sentence was legal when it was pronounced in 2000 and it remains legal now.

In sum, although the district court erred in treating Stark's motion as a K.S.A. 60-

1507 motion, the error was harmless. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 

516 (2015) (finding the district court will be upheld on appeal even though it relied on the 

wrong ground or assigned erroneous reasons for its decision). Murdock II does not render 

Stark's sentence illegal. Stark fails to argue that his sentence was illegal when it was 

pronounced in 2000, and upon review, we find that his 1982 Florida convictions were 

properly scored as person crimes for criminal history purposes.

Affirmed.