1 NOT DESIGNATED FOR PUBLICATION

No

. 1 21 , 374

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appell ee ,

v.

R

AUL M ANUEL M AGALLANEZ , Appell ant

.

MEMORANDUM OPINION

Appeal from Lyon D istr ict Court; W. L EE F OWLER , judge. O pinion filed Se ptember 2 5 , 20 20

. Affirmed in part, reversed in part , sentence vacated, and remanded w ith directions.

Gerald E. Wells , of Jerry Wells Attorney

- at

- Law, of Lawrence , f or appellant.

Amy L. Aranda , first assistant county attorney , Marc Goodman , county attorney, and Derek
Schmidt , attorney general, for appellee.

Before W ARNER , P.J., S TANDRIDGE and G ARDNER , J J

.

P ER C URIAM : Following his no

- contest pleas to two counts of aggravated indecent liberties with a child, Raul Manuel Magallanez appeals the district court's decision to deny three pro se postsentence motions. Magallanez argues the district court erred in denying his mo tion to correct an illegal sentence, claiming that his sentence was calculated using an incorrect criminal history score. He also contends the district court erred in denying his motion to dismiss, alleging he is entitled to resentencing based on the
ident ical offense doctrine and a violation of his constitutional right to a speedy trial. Finally, Magallanez asserts the district court erred in denying the motion to withdraw his2 pleas based on ineffective assistance of counsel. For the reasons stated below, we affirm the district court's denial of Magallanez' motion to dismiss and motion to withdraw his pleas. But we agree that Magallanez' criminal history score was incorrect, which we find
rendered his sentence illegal as alleged . We therefore reverse the di strict court's denial of Mallaganez' motion to correct an illegal sentence, vacate his sentence, and remand for resentencing with a criminal history score of G.

F ACTUAL AND P ROCEDURAL H ISTORY

In 2007, a jury convicted Magallanez of 49 counts in three chi ld sexual abuse cases tried together by the district court. On direct appeal, the Kansas Supreme Court found the cumulative effect of five errors substantially prejudiced Magallanez' right to a fair trial. As a result, the court remanded all but two convic tions , which were reversed on jurisdictional grounds. State v. Magallanez , 290 Kan. 906, 926

- 27, 235 P.3d 460 (2010).

On remand, Magallanez entered no

- contest pleas to two counts of aggravated indecent liberties with a child. In exchange, the State agree d to dismiss the remaining charges in all three cases. The district court sentenced Magallanez to a controlling term of 144 months in prison. We affirmed Magallanez' sentence on appeal. See State v. Magallanez , No. 106,255, 2013 WL 646477 (Kan. App. 2013) (unpublished opinion).

In February 2018, Magallanez filed a pro se motion to correct an illegal sentence. In the motion, Magallanez sought application of the identical offense doctrine and suggested that instead of being sentenced for the offense of aggr avated indecent liberties with a child, a severity level 3 person felony, he should have been sentenced for the offense of indecent solicitation of a child, which is a severity level 6 person felony. The district court denied Magallanez' motion on grounds that the two offenses were not identical. Magallanez did not appeal this ruling.3 On March 7, 2019, Magallanez filed a pro se motion to dismiss, alleging a violation of his constitutional right to a speedy trial and reasserting that he should be

resentenc ed under the identical offense doctrine. On March 8, 2019, the district court filed a written order denying the motion. The court rejected Magallanez' speedy trial
claim , finding the claim was based on a typographical error . The court also rejected his
i de ntical offense argument , again finding the crimes of aggravated indecent liberties with
a child and indecent solicitation of a child are not identical.

On March 29, 2019, Magallanez filed an untimely notice of appeal. See K.S.A. 2019 Supp. 22

- 3603(c) (not ice of appeal in criminal case must be filed within 14 days after entry of order or judgment being appealed). The district court later granted Magallanez' request to permit him to file an appeal out of time

. See State v. Ortiz , 230 Kan. 733, 640 P.2d 1255 (1982) (setting forth judicial exceptions to general rule barring untimely appeals).

On March 29, 2019, the same day he filed his untimely notice of appeal, Magallanez filed a motion to withdraw his pleas on grounds that his plea counsel was
ineffective i n failing to inform him that any good time credit earned while incarcerated would be added to his postrelease supervision term under K.S.A. 2019 Supp. 21

- 6821(c). Magallanez claimed that if counsel had so advised him, he would not have entered his pleas. O n April 2, 2019, the district court filed a written order denying Magallanez'
motion

. Magallanez filed a timely appeal.

On April 16, 2019, Magallanez filed another pro se motion to correct an illegal sentence. In this motion, Magallanez alleged that one of his prior convictions was improperly classified as a felony rather than a misdemeanor, which resulted in a criminal history score of F instead of G. Magallanez sought to have his sentence reduced accordingly. On June 4, 2019, the district court filed a written order summarily denying Magallanez' motion. Magallanez filed a timely appeal.4 A NALYSIS

Magallanez raises three issues on appeal. First, he argues the district court erred in denying his April 2019 motion to correct an illegal sentence. Second, he contends the court erred in denying his motion to dismiss. Third, he alleges the court erred in denying his motion to withdraw his pleas. We note that although Magallanez filed two of these motions at the same time or after his notice of appeal of the dis trict court's denial of his motion to dismiss, the district court did not lose jurisdiction over Magallanez' case after he filed that notice of appeal on March 29, 2019. This is because his appeal had not yet
been docketed when the district court considere d the other two motions. See State v.
McDaniel , 255 Kan. 756, 761, 877 P.2d 961 (1994) (district court does not lose jurisdiction over case to appellate courts until case is docketed or motion to docket appeal is filed with clerk of appellate courts). We a ddress each motion separately below.

1. Motion to correct illegal sentence

Magallanez argues that his sentence is illegal because one of his prior convictions was improperly classified as a felony rather than a misdemeanor, which resulted in a
criminal history score of F instead of G. The State concedes that Magallanez' prior conviction was improperly classified.

Magallanez did not object to his criminal history score at sentencing. But Magallanez ' failure to do so does not prevent him from raising a subsequent challenge
under K.S.A. 22

- 3504 regarding the legal effect of his prior convictions and how those convictions should be classified and counted for purposes of determining his criminal history score. See State v. Dickey , 301 Kan. 1018, Syl. ¶ 4, 350 P.3d 1054 (2015).

Under K.S.A. 2019 Supp. 22

- 3504(a), an illegal sentence may be corrected at any time while a defendant is serving that sentence. An illegal sentence is a sentence that is5 "[i]mpo sed 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). When a district court improperly classifies a prior conviction for the purpose of determining a defendant's criminal history score, an illegal sentence
results. Dickey , 301 Kan. at 1034. Whether a sentence is illegal within the me aning of K.S.A. 2019 Supp. 22

- 3504 is a question of law over which appellate courts exercise
unlimited review. See State v. Lee , 304 Kan. 416, 417, 372 P.3d 415 (2016).

To place Magallanez' argument in context, we review some of the basic rules of
the revised Ka nsas Sentencing Guidelines Act. A defendant's presumptive sentence is
based on two factors: the severity level of the current offense and the criminal history score of the defendant. See K.S.A. 2019 Supp. 21

- 6804(a) (containing sentencing grid for nondrug crimes); K.S.A. 2019 Supp. 21

- 6805(a) (containing sentencing grid for drug crimes). Crime severity levels range from levels 1 (the most serious) to 10 (the least serious). Criminal history scores range from I (no criminal history or one misdemeanor)
to A (three or more person felonies). See K.S.A. 2019 Supp. 21

- 6809; K.S.A. 2019 Supp.
21

- 6804(a) ; K.S.A. 2019 Supp. 21

- 6805(a)

.

To calculate a defendant's criminal history score, a court examines the defendant's past convictions and then classifies each conviction in two ways

— as a felony or a misdemeanor offense, and as a person or nonperson offense. Felonies are weighted more heavily and lead to higher presumptive sentences. Crimes that are person offenses are also weighted more heavily; nonperson offenses are weighted less heavily. See S tate v. Keel , 302 Kan. 560, 574

- 75, 357 P.3d 251 (2015). Relevant here, a defendant with two nonperson felonies will have a criminal history score of F and a defendant with one nonperson felony will have a criminal history score of G. See K.S.A. 2019 Supp. 21

- 6809.6 The presentence investigation (PSI) report provided that Magallanez had been convicted of two nonperson felonies, which gave him a criminal history score of F. See K.S.A. 2019 Supp. 21

- 6809. Relevant here, the PSI report listed a 1998 driving w hile suspended conviction that was classified as a nonperson felony. At the time of Magallanez' 1998 conviction, driving while suspended was a felony under K.S.A. 8

- 262 only on a third or subsequent conviction. See L. 1994, ch. 353, § 4. Magallanez appears to concede that his 1998 driving while suspended conviction was his third such offense. But the PSI report showed that Magallanez had only one other driving while suspended conviction from 1995. A second driving while suspended conviction was a class A

no nperson misdemeanor. See L. 1994, ch. 353, § 4.

If Magallanez' 1998 driving while suspended conviction had been properly classified as a misdemeanor rather than a felony, his criminal history score would have
been G instead of F because there would have been only one nonperson felony listed on the PSI report. See K.S.A. 2019 Supp. 21

- 6809. As a result, we must vacate Magallanez' sentence and remand the case to the district court for resentencing using the correct criminal history score.

2. Motion to dism iss

Magallanez contends that the district court erred in denying his motion to dismiss. He reasserts his arguments that he is entitled to resentencing under the identical offense doctrine and that his constitutional speedy trial rights were violated.

a. Identical offense doctrine

Magallanez first raised the identical offense doctrine argument in his February 2018 motion to correct an illegal sentence. The district court rejected this argument, finding that aggravated indecent liberties with a child and i ndecent solicitation of a child7 did not share the same elements. Magallanez did not appeal this ruling. As a result, Magallanez' attempt to relitigate this issue in his motion to dismiss is barred by the law of
the case doctrine.

The law of the case doctr ine bars a party from relitigating an issue that a court already decided in earlier stages of the same proceeding. State v. Parry , 305 Kan. 1189, Syl. ¶ 1, 390 P.3d 879 (2017). "The doctrine of the law of the case is not an inexorable command, or a constit utional requirement, but is, rather, a discretionary policy which expresses the practice of the courts generally to refuse to reopen a matter already decided, without limiting their power to do so." State v. Collier , 263 Kan. 629, Syl. ¶ 2, 952 P.2d 1326 ( 1998). Litigants are not entitled to have their cases decided on a piecemeal basis but must proceed in accordance with the mandates and legal rulings as established in previous cases. The doctrine promotes judicial efficiency while allowing litigants a ful l and fair opportunity to present their arguments on a particular point. Parry , 305 Kan. at
1194

- 95.

Because Magallanez did not seek review of the district court's denial of his February 2018 motion to correct an illegal sentence, the legal conclusions announced by
the court now serve as the law of the case. Magallanez cannot now relitigate the legality
of his sentence und er the identical offense doctrine in his motion to dismiss.

b. Speedy trial

Magallanez argues that the charges against him should have been dismissed before trial based on a violation of his constitutional right to a speedy trial

.

Notably, Magallanez did not raise a speedy trial argument in either the direct appeal of his convictions or his sentence. See Magallanez , 290 Kan. 906; Magallanez ,8 2013 WL 646477. But even if we were to overlook Magallanez' unexplained failure to do so, he is not e ntitled to relief on this basis.

The Sixth Amendment to the United States Constitution and s ection 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a public and speedy trial. Unlike the statutory right to a speedy trial, which attaches when a defendant is arraigned or waives his or her arraignment, the constitutional speedy trial right attaches "'when one becomes accused and the criminal prosecution begins, usually by either an indictment, an information, or an arre st, whichever first occurs.'" State v.
Rivera , 277 Kan. 109, 112, 83 P.3d 169 (2004); see K.S.A. 2019 Supp. 22

- 3402(a).

The State filed the complaint in this case on February 21, 2007. The record reflects that the warrant was personally served on Magallan ez in court the next day. Because the complaint was filed before Magallanez' arrest for this case, his constitutional speedy trial right attached on February 21, 2007. Magallanez' trial began 174 days later, on August 13, 2007.

Magallanez bases his speedy trial argument on a notation in the record showing that a judge signed his arrest warrant on January 21, 2007. Magallanez appears to argue that because he was already in jail on other charges on that date, the State could have
served the warrant on Januar y 21 rather than wait until February 22.

The district court rejected Mallaganez' argument after concluding that the January 21, 2007 date on the arrest warrant was a clerical error. But the date on the warrant is irrelevant to the issue of Mallaganez' co nstitutional speedy trial rights. These rights attach at formal charging or arrest, not when a judge signs the arrest warrant. See
Rivera , 277 Kan. at 112. Magallanez' entire argument turns on this faulty logic, and he
addresses none of the other factors c ourts must consider when determining whether a defendant's constitutional right to a speedy trial has been violated. See Barker v. Wingo ,9 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Magallanez' argument necessarily
fails.

The district court di d not err in denying Magallanez' motion to dismiss. See State
v. Overman , 301 Kan. 704, 712, 348 P.3d 516 (2015) (if district court reaches correct result, its decision will be upheld even though it relied on wrong ground or assigned
erroneous reasons for its decision).

3. Motion to withdraw pleas

Finally, Magallanez argues that the district court erred in denying his motion to withdraw his pleas based on ineffective assistance of counsel.

"To correct manifest injustice the court after sentence may set a side the judgment of conviction and permit the defendant to withdraw the plea." K.S.A. 2019 Supp. 22

- 3210(d)(2). Generally, an appellate court will not disturb a district court's denial of a postsentence motion to withdraw plea absent an abuse of discretio n. State v. Johnson , 307 Kan. 436, 443, 410 P.3d 913 (2018). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is
based on an error of fact. State v. Ingham , 308 Kan. 1466, 1469, 430 P.3d 931 (2018).

A postsentence motion to withdraw a plea must be filed within one year of either:

"(A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (B) the denial of a petition for a writ of certiorari to the United States supreme court or issuance of such court's final order following the granting of such petition." K.S.A. 2019 Supp. 22

- 3210(e)(1).10 This one

- year tim e limitation may be extended "only upon an additional, affirmative showing of excusable neglect by the defendant." K.S.A. 2019 Supp. 22

- 3210(e)(2). When a defendant fails to make a showing of excusable neglect, an appellate court may
consider the motion un timely and deny relief. See State v. Williams , 303 Kan. 605, 608, 366 P.3d 1101 (2016).

After Mallaganez filed a direct appeal of the plea proceedings, we affirmed his

sentence

. Mallaganez , 2013 WL 646477. The Kansas Supreme Court denied his petition
for review , and the mandate issued on August 20, 2013. Magallanez moved to withdraw his pleas on March 29, 2018, well outside the one

- year time limitation . See K.S.A. 2019 Supp. 22

- 3210(e). Magallanez fails to acknowledge the untimeliness of his motion and
has made no attempt to show excusable neglect. His motion presented no reasons to excuse the delay, nor does his appellate brief.

Because the failure to argue excusable neglect after filing an untimely postsentencing motion to withdraw a plea is fatal, Magallanez' motion is procedurally
barred. See State v. Moses , 296 Kan. 1126, 1128, 297 P.3d 1174 (2013). The district
court correctl y denied the motion, albeit for the wrong reasons. See Overman , 301 Kan.
at 712.

C ONCLUSION

In summary, we affirm the district court's denial of Magallanez' motion to dismiss and motion to withdraw his pleas. We reverse the district court's denial of Mal laganez' motion to correct an illegal sentence, vacate his sentence, and remand for resentencing with a criminal history score of G.

Affirmed in part, reversed in part, sentence vacated , and remand ed with directions

.