1 IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,888
S TATE OF K ANSAS , Appellee ,

v.
B RIAN C. B AILEY , Appellant

. SYLLABUS BY THE COURT

1. A clerical error in sentencing may be corrected at any time.

2. A pre
- K ansas S entencing G uidelines A ct conviction must be classified as either a person or nonperson offense by comparing the criminal statute under which the prior offense arose to the comparable post

- KSGA criminal statute

.

Appeal from Johnson D istrict C ourt; J AMES F RANKLIN D AVIS , judge . Opi nion filed May 19 , 20 17. Affirmed and remanded with direction s
.
Catherine A. Zigtema , of Law Office of Kate Zigtema LC , of Lenexa , argued the cause and was on the brief for appellant.

Steven J. Obermeier , senior deputy district attorney , argued the cause , and Stephen M. Howe , district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by2

S TEGALL , J.: Brian C. Bailey is serving a life sentence for felony murder. He appeals the summary denial of three pro se motions, arguing restitution has been wrongfully collected from him and his sentence is illegal. We hold no enforceable restitution judgment exist s against Bailey and the wrongful collection of restitution likely arises from a clerical error

. We also hold Bailey's offenses were properly classified as person felonies and his sentence is not illegal. Therefore, we affirm and remand for a hearing and c orrection of the clerical mistake.

F ACTUAL AND P ROCEDURAL B ACKGROUND

In December 1986, Bailey and Kohler Jeffries committed a series of armed robberies of gas stations and a liquor store in Johnson County

. During one robbery, they killed a gas station attendant. Bailey was convicted of one count of first

- degree felony murder , fou r counts of aggravated robbery , and sentenced to life imprisonment

. The district court found restitution in the amount of $37,521.07.

This is the fifth time Bailey's case has come before this court. In 1990, w e affirmed Bailey's convictions on direct appeal

. State v. Bailey , 247 Kan. 330, 340, 799 P.2d 977 (1990), cert. denied 500 U.S. 920 (1991). In 1992, we vacated Bailey's sentences and remanded the case for resentencing and consideration of the disparity between Bailey's and Jeffries' sentences. State v. Bailey , 251 Kan. 527, 531, 834 P.2d 1353 (1992)

. The district court resentenced Bailey to life imprisonm ent for felony murder and ordered three of his four aggravated robbery convictions to be served concurrently. The court again found restitution in the amount of $37,521.07

.
In 1993, we remanded the case for computation of Bailey's Kansas Sentencing Guidelines Act (KSGA) sentence. State v. Bailey , No. 79,803, 1998 WL 982911 (Kan. 1998) (unpublished opinion)

. In 2005, we affirmed the summary denial of Bailey's third3

motion to correct an illegal sentence. State v. Bailey , N o. 88,639, 2005 WL 991913, at *3 (Kan. 2005) (unpublished opinion)

.
The present appeal arises from three pro se motions

. In 2013 and 2014, Bailey filed two motions for release of restitution, arguing the restitution judgment against him was dormant and seeking reimbursement for money already paid toward restitution. T he district court summarily denied the motions , concluding there was no enforceable restitution judgment that could become dormant.

In 2014, Bailey also filed a pro se motion to correct an illegal sentence. He argued the distri ct court incorrectly classified his pre

- KSG A offenses as person felonies in violation of State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014) , overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015) , cert. denied 136 S. Ct. 865 (2016) , and miscalculated his criminal history score as a result

. T he district court summarily denied the motion, concluding Murdock did not apply to Bailey's in

- state offenses

.
Bailey appeals the summary denial of the se three motions pursuant to K.S.A. 2016 Supp. 22

- 3601(b)(3), which permits appeal from a district court judgment directl y to the Supreme Court in "any [ criminal ] case in which a maximum sentence of life imprisonment has been imposed." See State v. Thomas , 239 Kan. 457, Syl. ¶ 2 , 720 P.2d 1059 (1986) (" An appeal of a 22

- 3504 motion

. . . falls within the appellate jurisdiction of the appellate court that has jurisdiction to hear the original appeal. ").

For the first time on appeal, Bailey now claims restitution has been wrongfully collected during his imprisonment because, according to the restitution statute in effect when Bailey committed his offenses , restitution cannot be collected until he is released if and when payment of restitution is made a condition of parole. Thus, Bailey argues the district court's restitution determination at sentencing and resentencing was an advisory finding of fact rather than an enforceable order.4

Bailey concedes this argument is unpreserved b ut contends the collection of restitution in his case stems from a clerical error in the Johnson County District C ourt computer system and such mistake may be corrected at "any time" pursuant to K.S.A. 22

- 3504. The record indicates that in 2012 a restitution order wa s entered into the computer system . It also appears, however, that no such order from the district court exists

. Thus, it appears at least likely that restitution is being collected from Bailey due to a clerical

error. He now asks us to remand for fact

- fin ding and correction of any clerical error
.

A NALYSIS

In his two motions for release of restitution, Bailey argued his restitution order is dormant pursuant to K.S.A. 60

- 2403 and 60

- 2404 and any restitution collected under the dormant judgment s hould be reimbursed to him. However, the district court correctly concluded there is no restitution judgment to become dormant.

Whether Bailey is currently subject to the trial court's restitution finding is a question of law subject to unlimited review. State v. Alderson , 299 Kan. 148, 149, 322 P.3d 364 (2014)

.

The district court summarily denied Bailey's motion s to release restitution, finding his case was "nearly identical" to Alderson

. It ruled that t he s entencing court did not enter an enforceable judgment against Bailey but instead provided a n advisory calculation of restitution to be used by the Kansas Prisoner Review Board (formerly the Kansas Adult Authority) upon commencement of Bailey's parole

. Thus, the court concluded, "T here never being an actual judgment of restitution set by the district court, the judgment could not become dormant."5

In Alderson , this court considered whether a defendant's restitution order was dormant under K.S.A. 2013 Su pp. 60

- 2403

. 299 Kan. at 149. The district court's order in Alderson stated : "' T he Court finds that restitution is owed in this case, as set out below, and advises the Secretary of Corrections' Board of Pardon and Parole that defendant's release from incarceration should be made contingent upon defendant making restitution.'" 299 Kan. at 150. We concluded this language was too ambiguous to subject the defendant to restitution collection during imprisonment and the district court did not have authority to impose parole conditions. 299 Kan. at 15 0

- 5 1. Therefore, we held that "the district court did not enter an enforceable restitution judgment when it sentenced Alderson. It instead provided an advisory calculation of damages for the benefit of the Kansas Prisoner Review Board. There being no judgment of restitution, the judgment could not become dormant." 299 Kan. at 151.

Likewise here, the sentencing court provided an advisory calculation of restitution for the parole board rather than an enforceable ju dgment of restitution. At Bailey's original sentencing in 1989 ( and his resentencing in 1993 ) the district court found that restitution totaled $37,521.07. The 1993 sentencing journal entry stated, "F or the benefit of the Kansas Adult Authority, restitutio n is found to be in the amount of $37,521.07

. " Thus, t he plain language of the entry indicates the restitution calculation was advisory in
nature

— for the parole board's benefit when de ciding the terms of Bailey's future probation.

Furthermore, the sentencing court did not have the statutory authority to impose restitution and imprisonment simultaneously on Bailey

. Because Bailey committed his offenses in December 1986, K.S.A. 1986 Supp. 21

- 4603 governed the imposition of restitution orders at his sentencing and resentencing. See State v. Denney , 278 Kan. 643, 646, 101 P.3d 1257 (2004) ("Criminal statutes and penalties in effect at the time of a criminal offense are controlling."). K.S.A. 1986 Su pp. 21

- 4603 states, in relevant part:6 "(2) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:

. . . .
"(f) . . . If the court commits the defendant to the custody of the secretary of corrections or to jai l, the court may specify in its order the amount of restitution to be paid and the person to whom it shall be paid if restitution is later ordered as a condition of parole or conditional release. " (Emphasis added.)
This court interpreted identical provisions of K.S.A

. 1991 Supp. 21

- 4603 in State v. DeHerrera , 251 Kan. 143, 834 P.2d 918 (1992) , and held a sentencing court could not order a defendant to pay restitution during incarceration

. 251 Kan. at 155 . The DeHerrera decision relied upon a series of cases that interpreted similar versions of K.S.A. 21

- 4603 to arrive at the same conclusion. See State v. Bowers , 239 Kan. 417, 427, 721 P.2d 268 (1986) ; State v. McNaught , 238 Kan . 567, 588, 713 P

. 2d 457 (1986) ; State v. Chilcote , 7 Kan. App. 2d 685, 690, 647 P.2d 1349 (1982)

. The restitution statutory scheme has since changed , allowing courts to order defendants to serve a sentence of imprisonment and pay restitution simultaneously

. Alderson , 299 Kan. at 150.

A ccording to the restitution law applicable to Bailey, the district court could not impose both incarceratio n and restitution . Instead, when the district court sentenced Bailey to imprisonment, it could only "specify in its order the amount of restitution to be paid and the person to whom it shall be paid if restitution is later ordered as a condition of parole or conditional release ." K.S.A. 1986 Supp. 21

- 4603 (2) (f)

. Therefore, no enforceable restitution judgment exists against Bailey , and the dormancy st atutes do not apply.

But this conclusion leads logically to the same end Bailey seeks

— i.e. , how is it that the state is collecting restitution when there is no enforceable restitution order or judgment? In light of this, Bailey argues for the first time on appeal that it appears a7

clerical error triggered the wrongful collection of Bailey's money, and such error may be corrected at any time pursuant to K.S.A. 22

- 3504. We agree

.

" K.S.A. 22

- 3504 provides a method for correcting

. . . a clerical mistake in judgments, orders or other parts of the record ." Thomas , 239 Kan. at 459

. K.S.A. 22

- 3504(2) states: " Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders. " (Emphasis added.) Clerical mistakes include , " typographical errors, incorrect statute numbers, failure to include the statute number, failure to state additional tr ue matter, formal or clerical errors and entries concerning matters of procedure" and are correctable by nunc pro tunc orders. 239 Kan.
at 460

.
The record reveals that a restitution order was entered into the Johnson County District Court computer system and the debt sent to collections. However, no such order exists

— the sentencing courts only provided advisory calculations of restitution in 1989 and 1993. This entry mistake likely constitutes a clerical error that may be corrected at any time. K.S.A. 22

- 3504(2). Therefore, while we affirm the district court's denial of Bailey's pro se motions for release of restitution, we remand the case for a hearing to find and correct any clerical error affecting the current collection of restitut ion from Bailey.

Finally , Bailey asks this court to apply Murdock ' s holding

— that all out

- of

- state pre
- KSGA crimes should be classified as nonperson felonies , Murdock, 299 Kan. at 319

— to his in

- state pre
- KSGA crimes of aggravated robbery and felony murder. The State contends that res judicata precludes consideration of this motion , but regardless , Keel dictates that Bailey's offenses were correctly classified as person felonies.

"When, as here, a district court summarily denies a motion to correct an illegal sentence under K.S.A. 22

- 3504 , this court applies a de novo standard of review." State v.8

Trotter , 296 Kan. 898, 90 1 , 295 P.3d 1039 (2013)

. This court ha s the same access to t he motion , records, and files as the district court and must determine if such documents conclusively show that the appellant is entitled to no relief. 296 Kan. at 901

- 02

.
This is Bailey's fifth motion to correct an illegal sentence. However, this is the first time Bailey has challenged the classification of his offenses . As we stated in State v. Dickey , 305 Kan. 217, 380 P.3d 230 (2016) , " The classification of a prior crime as a person or nonperson felony for criminal history purposes is a question of state statutory law. A misclassification results in an illegal sentence that can be corrected at any time. " 305 Kan. 217, Syl. ¶ 2 ; see K.S.A 22

- 3 504 (1). Therefore, res judicata does not bar Bailey's motion.

Though Bailey clears the res judicata hurdle, his claim fails on the merits. W hile Bailey's appeal was pending, this court overruled Murdock and held that "a pre
- KSGA conviction and/or adjudication must be classified as either a person or nonperson offense by comparing the criminal statute under which the prior offense arose to the comparable post

- KSGA criminal statute

. " Keel , 302 Kan. at 581

. In light of Keel , Bailey's offenses of felony murder and aggravated robbery were properly classified as person crimes under the KSGA in effect when Bailey was resentenced in 1993. See K.S.A. 1993 Supp. 21

- 3401(b) (felony murder classified as a person felony) ; K.S.A. 1993 Supp. 21

- 3427 (aggravated robbery classified as a person felony)

.
Therefore, we hold B ailey's sentence is not illegal and affirm the district court's

s ummary denial of Bailey's motion to correct an illegal sentence

.

Affirmed and remanded for further proceedings consistent with this opinion.