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NOT DESIGNATED FOR PUBLICATION

No. 121,789

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellant,

v.

SIDNEY W. CLARK,

Appellee.

MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed April 17, 2020.

Sentence vacated and case remanded with directions.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.

Before POWELL, P.J., HILL and STANDRIDGE, JJ.

POWELL, J.: This appeal marks the parties' second trip to our court to resolve how 

to properly score Sidney W. Clark's 2000 Oklahoma conviction for placing bodily fluids 

upon a government employee for criminal history purposes. For reasons we will explain, 

the district court got it right the first time when it scored this conviction as a person 

felony.

Shifting sentencing jurisprudence emanating from the Kansas Supreme Court 

compelled our earlier decision in State v. Clark, No. 119,076, 2019 WL 1746772, at *6 

(Kan. App. 2019) (unpublished opinion), which held, relying on State v. Wetrich, 307 
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Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018), that the identical-or-narrower rule required 

Clark's Oklahoma conviction to be scored as a nonperson felony. However, on the same 

day we issued our decision in Clark, our Supreme Court released State v. Murdock, 309 

Kan. 585, 439 P.3d 307 (2019) (Murdock II), which limited Wetrich's application by 

clarifying that the legality of a sentence under K.S.A. 2018 Supp. 22-3504 is controlled 

by the law in effect at the time the sentence was pronounced.

Because Wetrich's identical-or-narrower rule had not been issued at the time Clark 

was originally sentenced in 2005, it was inapplicable at both Clark’s original 2005 

sentencing and, our earlier decision notwithstanding, his August 2019 resentencing. 

Nevertheless, the district court felt bound by our mandate to reclassify Clark's Oklahoma 

conviction as a nonperson felony anyway, thus reducing Clark's criminal history score to 

a C. While we appreciate the district court's adherence to our mandate, a change in the 

law imposed by a controlling authority trumps any such mandate, and the district court 

erred in sentencing Clark in accordance with Wetrich. Accordingly, we must again vacate 

Clark's sentence and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to a plea agreement, on February 18, 2005, Clark pled guilty to one count 

of aggravated criminal sodomy, a severity level 2 person felony. In return for his guilty 

plea, the State dismissed the additional pending charges of one count of aggravated

kidnapping, two counts of rape, three counts of aggravated criminal sodomy, one count of 

aggravated burglary, and one count of robbery.

At Clark's sentencing on June 9, 2005, the district court determined his criminal 

history score was B based in part on a 2000 Oklahoma conviction for placing bodily 

fluids on a government employee, which the district court scored as a person felony. 
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After denying Clark's motion for a downward departure, the district court sentenced 

Clark to the aggravated term of 460 months in prison.

On April 25, 2017, Clark filed a pro se motion to correct illegal sentence under 

K.S.A. 22-3504. Clark argued his Oklahoma conviction for placing bodily fluids on a 

government employee under Okla. Stat. tit. 21, § 650.9 (1999), was not comparable to 

any Kansas criminal statute. Clark alleged that after law enforcement sprayed him with 

pepper foam spray, he was involuntarily spitting and retching. Clark claimed these

involuntary acts led to his conviction for placing bodily fluids on a government employee 

under the Oklahoma statute. Clark identified K.S.A. 2003 Supp. 21-3413(a)(1) as the 

Kansas statute most likely to be used for comparison, which criminalizes battery against a 

law enforcement officer and is a person crime. In arguing that the statutes were not 

comparable, Clark emphasized the fact the Kansas statute required intentional contact 

with another person when done in a rude, insulting, or angry manner. See K.S.A. 2003 

Supp. 21-3413; K.S.A. 2003 Supp. 21-3412(a)(2). Clark argued his accidental act of 

spitting would not likely have qualified as "rude, insulting, or angry behavior" under the 

Kansas statute.

The district court disagreed, holding Okla. Stat. tit. 21, § 650.9, is comparable to 

K.S.A. 2003 Supp. 21-3413(a)(3), battery against a law enforcement officer. In its written 

decision, the district court stated: "[T]he statutes do not need to be identical with 

identical elements. The statutes being compared must be comparable." The district court 

found the statutes comparable and ruled Clark's Oklahoma offense was properly 

classified as a person felony for criminal history purposes.

Clark successfully appealed to this court, and we vacated his sentence and 

remanded for resentencing with directions to reclassify his Oklahoma conviction as a 

nonperson offense for criminal history purposes in accordance with the ruling in Wetrich. 

Clark, 2019 WL 1746772, at *6.
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The State did not file a petition for review, and a mandate was issued. On remand, 

a new presentence investigation (PSI) report was prepared showing Clark's criminal 

history score to be C with a presumptive prison range of 194-216 months. Clark's prior 

Oklahoma conviction for placing bodily fluids upon a government employee was scored 

as a nonperson felony.

Resentencing was scheduled for the morning of July 12, 2019. At the start of the 

hearing, the district court expressed confusion as to the rapidly evolving caselaw 

regarding the applicability of Wetrich. The district court decided to continue the hearing 

to allow the parties to present their positions based on the new caselaw, stating:

"So what the court is going to do to make sure we do this correctly it's going to 

be set for a special setting and counsel will be prepared to present to the court what they 

think the present law is in regards to in state/out of state convictions based upon Wetrich 

and the multitude of decisions that have been handed down in the last month or so. Plus 

the new statutory amendment."

Both Clark and the State filed written memoranda regarding their arguments on 

the appropriate law for resentencing.

On August 16, 2019, the district court resentenced Clark to 216 months in prison. 

Over the State's objection, the district court applied the holding in Wetrich and ruled 

Clark's criminal history score should be C in accordance with the mandate from out court. 

The district judge stated:

"Just for purposes of the record, the Court of Appeals remanded with directions 

to this court to resentence the defendant as a criminal history score [C]. The court, when I 

originally sentenced Mr. Clark, believed the criminal history score was B as did both the 

state and defense counsel at that time.
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"There's been a number of changes in case law and the statutory law over the 

years concerning criminal history score including very recent. I asked both counsel to 

brief the issue of the effect of the new case law and/or new statutory law. The bottom line 

is, this court does not in its view have the authority to overrule the Kansas Court of 

Appeals and I was specifically directed by the Kansas Court of Appeals to sentence the 

defendant as a criminal history score C.

"I gave the maximum sentence I could before. The maximum sentence is clearly 

applicable now. But I think the only option the state has is to appeal the court's ruling to 

either the Court of Appeals and see if the Court of Appeals, a different panel thinks they 

can overrule themselves or the Kansas Supreme Court. But I do not find I have the 

authority to overrule the Kansas Court of Appeals."

The State timely appeals the district court's sentence.

The district court erred in applying the identical-or-narrower rule at resentencing.

The State argues Clark's sentence is illegal because the district court erroneously 

classified his 2000 Oklahoma conviction for placing bodily fluids upon a government 

employee under Okla. Stat. tit. 21, § 650.9 as a nonperson felony. The State contends the 

district court erroneously applied the identical-or-narrower rule as set forth in Wetrich, 

and it asks us to reinstate the original sentence.

The question of whether a district court has properly classified a prior conviction 

as a person or nonperson offense involves the interpretation of the Kansas Sentencing 

Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq. Issues of statutory 

interpretation and the classification of prior crimes for criminal history purposes, as well 

as the determination of whether a sentence is illegal, are all questions of law subject to 

unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019).
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Relevant here is the statute defining an illegal sentence, K.S.A. 2019 Supp. 22-

3504(c), which provides:

"(1) 'Illegal sentence' means a sentence: Imposed 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. A sentence is not an 'illegal sentence' because of a 

change in the law that occurs after the sentence is pronounced.

"(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."

Our Legislature has deemed the 2019 amendments to K.S.A. 22-3504(c) to be 

procedural and retroactive. See K.S.A. 2019 Supp. 22-3504(d). As noted, it also clarified 

a change in the law encompasses opinions "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." K.S.A 2019 Supp. 22-3504(c)(2). As such, our Legislature has clearly 

indicated a sentence that is legal when pronounced does not become illegal due to a 

change in the law.

The criminal history worksheet portion of Clark's PSI report includes a 2000 

Oklahoma conviction for "Placing Bodily Fluids upon Government Employee" under 

Okla. Stat. tit. 21, § 650.9. When classifying an out-of-state conviction for criminal 

history purposes, the first step is to determine whether the convicting jurisdiction 

classifies the prior conviction as a felony or misdemeanor. See K.S.A. 2019 Supp. 21-

6811(e)(2). The parties do not dispute the Oklahoma crime is a felony under Okla. Stat. 

tit. 21, § 650.9.
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The second step requires a determination of whether the crime should be classified 

as a person or nonperson offense. This is done by comparing the prior out-of-state 

conviction with the comparable Kansas offense in effect at the time the defendant 

committed the current crime of conviction. See K.S.A. 2019 Supp. 21-6811(e)(3); State v. 

Keel, 302 Kan. 560, 590, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). The 

comparable Kansas offense need not be identical. State v. Vandervort, 276 Kan. 164, 179, 

72 P.3d 925 (2003). If there is no comparable Kansas offense, then the prior out-of-state 

conviction must be classified as a nonperson crime. K.S.A. 2019 Supp. 21-6811(e)(3).

Here, neither party addresses the merits of the comparability of the Oklahoma 

crime to the Kansas crime. However, at Clark's original sentencing in 2005, the district 

court ruled Clark's 2000 Oklahoma conviction for placing bodily fluids upon a 

government employee, contrary to Okla. Stat. tit. 21, § 650.9, was comparable to K.S.A. 

2003 Supp. 21-3413 (now K.S.A. 2019 Supp. 21-5413 [c][1]), battery against a law 

enforcement officer, a person crime, thus requiring the Oklahoma crime to be classified 

as a person felony. We agree because even though Oklahoma's statute does not contain an 

intent element, it involves a touching comparable to our battery statute. See State v. 

Davis, No. 116,749, 2017 WL 6625550, at *3 (Kan. App. 2017) (unpublished opinion) 

(Oregon statute criminalizing throwing bodily substances at corrections officers 

comparable to Kansas person crime of battery). Thus, the district court got it right the 

first time when it classified the Oklahoma offense as a person felony.

Clark claims the district court's ruling should stand.

Nevertheless, Clark provides two reasons why we should allow the district court's 

resentencing order to stand.

First, Clark relies on the mandate rule, arguing that because the State did not file a 

petition for review from this court's holding in Clark and the mandate was subsequently 
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issued, the district court was bound to follow that mandate. The question of whether a 

district court properly complied with the mandate rule presents an issue of law subject to 

unlimited review. State v. Soto, 310 Kan. 242, 256, 445 P.3d 1161 (2019).

Under the mandate rule, an appellate court's mandate along with its accompanying 

opinion become part of the judgment of the court if it is determinative of the action or 

controls any further proceedings in the district court. K.S.A. 60-2106(c). Generally, a 

district court's jurisdiction on remand is limited to compliance with the holding as set 

forth in the appellate court's opinion. See 310 Kan. at 256. In State v Collier, 263 Kan. 

629, Syl. ¶ 4, 952 P.2d 1326 (1998), our Supreme Court pronounced a district court 

"must implement both the letter and spirit of the mandate, taking into account the 

appellate court's opinion and the circumstances it embraces."

However, another panel of our court noted:

"[T]he Tenth Circuit Court of Appeals recognizes an exception to . . . the mandate rule[] 

when there has been an intervening change of applicable law by a controlling authority. 

In Grigsby v. Barnhart, 294 F.3d 1215, 1218-19 (10th Cir. 2002), the court held that

intervening clarifying legislation justified a court's reconsideration of remand 

instructions." State v. Montanez, No. 114,473, 2017 WL 749031, at *2 (Kan. App. 2017) 

(unpublished opinion).

To the extent Clark is arguing the law of the case doctrine compelled the district court’s 

ruling, the same exception applies. See State v. Kleypas, 305 Kan. 224, Syl. ¶¶ 3, 4, 382 

P.3d 373 (2016) (recognizing exception to law-of-the-case doctrine—similar to mandate 

rule—when controlling authority has made contrary decision regarding law at issue after 

it was originally decided).

Clark's resentencing took place on August 16, 2019. Relying on State v. Dawson, 

310 Kan. 112, 444 P.3d 914 (2019), and State v. Tauer, 310 Kan. 1, 444 P.3d 936 (2019), 
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the State argues recent changes to caselaw compelled the district court to classify Clark's 

2000 Oklahoma conviction as a person felony and reimpose the original 460-month 

prison sentence. In those cases, our Supreme Court held the legality of a sentence is 

"determined by the law in effect at the time the sentence was pronounced." Dawson, 310 

Kan. at 112, Syl. ¶ 2; see Tauer, 310 Kan. 1, Syl.

Prior to Clark's resentencing, our Supreme Court's decisions in Murdock II, State 

v. Newton, 309 Kan. 1070, 442 P.3d 489 (2019), and State v. Weber, 309 Kan. 1203, 442 

P.3d 1044 (2019), clarified the proper application of the identical-or-narrower rule as set 

forth in Wetrich. In Murdock II, the Kansas Supreme Court clarified the legality of a 

sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence 

was pronounced. 309 Kan. at 592. And in Newton and Weber, our Supreme Court 

determined Wetrich was a change in the law as contemplated by Murdock II. See Newton, 

309 Kan. at 1073-74; Weber, 309 Kan. at 1049. As such, we apply an exception to the 

mandate rule here, finding our Supreme Court's clarified identical-or-narrower rule as set 

forth in Wetrich did not apply to the facts of this case. Accordingly, due to clarifying 

caselaw, we find the district court was no longer bound to follow our court's mandate 

when resentencing Clark.

Second, Clark alternatively argues even if Wetrich constituted a change in the law, 

the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 

S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which was decided five years before Clark's 

original sentencing, required the same interpretation of K.S.A. 21-4711(e) as set forth in 

Wetrich. Specifically, Clark claims the doctrine of constitutional avoidance mandates the 

use of the identical-or-narrower rule when comparing out-of-state crimes to Kansas 

crimes for criminal history classification because the court should try to avoid a 

subsequent decision that K.S.A. 21-4711(e) is unconstitutional. We reject Clark's 

argument because our Supreme Court has stated Wetrich was a change in the law and 

restricted its holding to sentences imposed after the holding in Wetrich or to those cases 
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pending on direct appeal. See Murdock II, 309 Kan. at 591-92 (distinguishing parties who 

may benefit from change in law during pendency of direct appeal from parties moving to 

correct an illegal sentence).

Clark's sentence is vacated, and the case is remanded for resentencing with the 

correct criminal history score. On remand, the district court should classify Clark's prior 

convictions in accordance with the law in effect on June 5, 2005, the date of his original 

sentence.

Sentence vacated and case remanded for resentencing.