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March 13, 2026 Get Citation Alerts Download PDF Add Note

State v. Denney

Court of Appeals of Kansas

• Citations: None known
• Docket Number: 127469

• Precedential Status: Non-Precedential

• Opinion

• Authorities (14)

• Cited By (0)

• Summaries (0)

• Similar Cases (32.5K)

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Combined Opinion

NOT DESIGNATED FOR PUBLICATION

No. 127,469

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DALE M.L. DENNEY,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Submitted without oral
argument. Opinion filed March 13, 2026. Affirmed.

Wendie C. Miller, of Kechi, for appellant.

Robin L. Sommer, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general, for appellee.

Before ARNOLD-BURGER, P.J., BRUNS and SCHROEDER, JJ.

PER CURIAM: Dale M.L. Denney appeals from the district court's summary denial
of his latest motion to correct illegal sentence. He also appeals from the district court's
denial of his motion to reconsider. Based on our review of the record on appeal, we find
that the district court did not err in denying his motion to correct illegal sentence.
Likewise, we find that the district court did not abuse its discretion by denying his motion
to reconsider. Thus, we affirm both the summary denial of Denney's motion to correct
illegal sentence and the denial of his motion to reconsider.

1
FACTS

In 1993, a jury convicted Denney of two counts of aggravated criminal sodomy,
two counts of aggravated sexual battery, two counts of aggravated weapons violations,
and one count of aggravated battery in two separate criminal cases consolidated for trial.
Denney was sentenced to a term of 36 years to life in one case and was originally
sentenced to a consecutive term of 289 months in the other. However, the district court
resentenced Denney the following day and reduced the controlling term in the second
case to 228 months. After he was sentenced, Denney filed a direct appeal, and the Kansas
Supreme Court affirmed his convictions. State v. Denney, 258 Kan. 437, 448, 905 P.2d
657 (1995).

Over the years, Denney has filed numerous motions and related appeals. See State
v. Denney, No. 128,401, 2026 WL 119994 (Kan. 2026) (motion to correct illegal
sentence); Denney v. Zmuda, No. 128,536, 2025 WL 2427759 (Kan. App. 2025)
(unpublished opinion) (K.S.A. 60-1501 petition); Denney v. State, No. 126,784, 2024 WL
3738410 (Kan. App. 2024) (unpublished opinion) (K.S.A. 60-1507 motion); State v.
Denney, No. 125,436, 2024 WL 1231154 (Kan. App. 2024) (unpublished opinion)
(motion for DNA testing); State v. Denney, No. 105,681, 2012 WL 402012 (Kan. App.
2012) (unpublished opinion) (motion to correct illegal sentence); Denney v. State, No.
82,220, 2000 WL 36745715 (Kan. App. 2000) (unpublished opinion).

On December 17, 2021, Denney filed a pro se motion to correct illegal sentence
that is the subject of this appeal. In the motion, Denney asserted that his sentences did not
conform to the applicable statutory provisions because his convictions represented a
single event for sentencing purposes. As such, he claimed that his sentences violated the
"double rule" as set forth in K.S.A. 1993 Supp. 21-4720(b)(4). He also claimed that his
sentences were illegal because the district court allegedly believed that it was required to
impose consecutive sentences.

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Denney also filed multiple supplemental filings, including one on May 11, 2022,
in which he argued that his sentence violated the double rule. In response to Denney's
motion, the State asserted that an evidentiary hearing was unnecessary. After appointing
counsel to represent Denney on his motion to correct illegal sentence, the district court
held a nonevidentiary hearing. At the end of the hearing, the district court granted leave
to the parties to file supplemental briefing. After receiving the supplemental briefs from
the parties, the district court issued a journal entry summarily denying Denney's motion.
In doing so, the district court found:

(1) Denney's argument that the district court thought he was still on parole for his
1987 conviction was based on speculation and was not supported by the record;
(2) the district court appropriately sentenced Denney under the sentencing statutes
in effect at the time his offenses were committed;
(3) K.S.A. 1993 Supp. 21-4720(b) did not apply to the 1992 crimes because the
Kansas Sentencing Guidelines Act (KSGA) was not in effect at the time the crimes were
committed;
(4) the holding in State v. Dixon, 60 Kan. App. 2d 100, 492 P.3d 455 (2021), did
not apply retroactively;
(5) Denney's sentence decreased rather than increased at the March 3, 1993,
resentencing; and
(6) the record did not show any vindictiveness on the part of the sentencing judge.

In denying a motion to reconsider subsequently filed by Denney, the district court
found that his arguments in support of his motion to correct illegal sentence had been
thoroughly considered. Thereafter, Denney filed a timely notice of appeal both from the
district court's denial of his motion to correct illegal sentence and from the district court's
denial of his motion to reconsider.

3
ANALYSIS

Summary Denial of Motion to Correct Illegal Sentence

On appeal, Denney first contends that his sentences were illegal. In particular,
Denny argues that (1) the convictions in the 1993 cases constituted a "single conviction
event," and—as a result—the sentences imposed by the district court violated the "double
rule"; (2) the district court erroneously believed that he was on parole when he committed
the crimes charged in the 1993 cases and—as a result—unlawfully imposed mandatory
consecutive sentences; (3) the district court erred by resentencing him to a harsher
penalty on the day after he was originally sentenced; and (4) the district court was
vindictive in resentencing him.

When a district court summarily denies a motion to correct illegal sentence, our
review is de novo because we have the same access to the motion, records, and files as
the district court. State v. Mitchell, 315 Kan. 156, 158, 505 P.3d 739 (2022). In addition,
the determination of whether a sentence is illegal is a question of law over which we
exercise unlimited review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024).

An illegal sentence is one that (1) is imposed by a court without jurisdiction; (2)
does not conform to the applicable statutory provision, either in character or the term of
punishment; or (3) is ambiguous with respect to the time and manner in which it is to be
served. K.S.A. 22-3504(c)(1); see State v. Cook, 319 Kan. 777, 779, 560 P.3d 1188
(2024). Because the interpretation of statutes is a question of law, our review is also
unlimited. Daniels, 319 Kan. at 342. As used in K.S.A. 22-3504, the term "applicable
statutory provision" means one defining the crime, setting the category of punishment, or
involving the defendant's criminal history classification. 319 Kan. at 779.

4
Kansas courts may correct an illegal sentence at any time while a defendant is
serving the sentence. K.S.A. 22-3504(a). Still, the circumstances under which a sentence
is deemed illegal under K.S.A. 22-3504 are "'narrowly and specifically defined.'" State v.
Donahue, 309 Kan. 265, 267, 434 P.3d 230 (2019). While a defendant is generally
sentenced under the laws in effect at the time the crime was convicted, the legality of a
sentence is controlled by the law in effect at the time it was pronounced. State v.
Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019). Furthermore, a sentence does not
become illegal because of a change in the law that occurs after the sentence is
pronounced. K.S.A. 22-3504(c)(1).

We note that Denney's arguments are more complex than in most cases involving
a motion to correct illegal sentence. This is because his sentence in Case No. 1993 CR
1343 is controlled by the sentencing statutes in effect prior to the KSGA becoming
effective on July 1, 1993. But his sentence in Case No. 1993 CR 1268 is controlled by the
KSGA.

Denney argues that his consecutive sentences violated the "double rule" set forth
in K.S.A. 1993 Supp. 21-4720(b) because his convictions should have been classified as
a "single conviction event" under K.S.A. 1993 Supp. 21-4703(c). As such, Denney
suggests his total sentence cannot exceed 288 months. In support of his position, he cites
State v. Riley, 259 Kan. 774, Syl. ¶ 5, 915 P.2d 774 (1996), in which the Kansas Supreme
Court held that "[m]ultiple convictions in several cases on a single day in a single court
are a single 'conviction event' under the 1993 version of the Kansas Sentencing
Guidelines Act."

In denying Denney's motion to correct illegal sentence, the district court found:

"Denney's reliance on Riley is misplaced. The State correctly points out that the 1993
sentencing statutes apply to only the 93CR1268. The crimes of the other case, 93CR1343,

5
being committed in October, 1992, prior to the July 01, 1993, implementation date of the
sentencing guidelines, were sentenced under the law in effect in October, 1992, namely
1992 Supp. 21-4601. Put simply, the 1993 statute was not law when the 1992 crimes
were committed and the Court declines Denney's invitation to apply it to the 1992
crimes."

We agree with the district court's analysis.

"It is well established that criminal statutes in effect at the time of the offense
control the charge as well as the sentence resulting therefrom." State v. Patry, 266 Kan.
108, 111, 967 P.2d 737 (1998). In other words, a defendant convicted of a crime is
sentenced under the sentencing laws in effect at the time the crime was committed. State
v. McLinn, 307 Kan. 307, 337, 409 P.3d 1 (2018). Based on our review of the record on
appeal, we find that the district court followed this fundamental rule in sentencing
Denney.

The record reveals that the crimes in Case No. 1993 CR 1343 were committed
before July 1, 1993; and the crimes in Case No. 1993 CR 1268 were committed after July
1, 1993. As a result, K.S.A. 1993 Supp. 21-4720(b)(4) applies only to the sentencing in
Case No. 1993 CR 1268. On the other hand, the sentencing in Case No. 1993 CR 1343
was controlled by K.S.A. 1992 Supp. 21-4601. See State v. Denney, 278 Kan. 643, 101
P.3d 1257 (2004) (denying Denney's motion to correct an illegal sentence and finding
that the KSGA did not apply to his crimes committed in October 1992).

Although Denney seems to suggest that he is somehow entitled to relief under
State v. Dixon, 60 Kan. App. 2d 100, 492 P.3d 455 (2021), he acknowledges that he
merely cites Dixon to help explain the history of the double rule. Because Denney is not
arguing that the change in the law reflected in Dixon should apply retroactively to his
1993 convictions, he has waived any argument that it should apply here.

6
Denney does argue that both of his 1993 cases should be treated as a "single
conviction event" and that the "double rule" should have been applied to his sentences.
Again, our Supreme Court has explained that "'[t]he legality of a sentence is fixed at a
discrete moment in time—the moment the sentence was pronounced'" and that "'a
pronounced sentence is either legal or illegal according to then-existing law.'" State v.
Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019) (quoting State v. Murdock, 309 Kan.
585, 591, 439 P.3d 307 [2019]). But the actual sentence and punishment is set by the
statutory framework in effect at the time the crime was committed. McLinn, 307 Kan. at
337.

We find as a matter of law that the "double rule" set forth in K.S.A. 1993 Supp.
21-4720(b)(4) does not apply to Denney's sentence in Case No. 1993 CR 1343. This is
because the crimes of conviction in Case No. 1993 CR 1343 occurred before the effective
date of the statute. Accordingly, we conclude that Denney has failed to show that his
sentences were illegal.

In addition, Denney argues that the district court ordered him to serve consecutive
sentences because it erroneously believed that he was on parole or probation in a 1987
case at the time he committed the crimes in his 1993 cases. However, Denney cites
nothing in the record to establish that the district court believed consecutive sentences
were mandatory. Although Denney asserts that "it is likely that the sentencing court
believed he was on parole at the time," a review of the transcripts from the sentencing
proceedings does not confirm this assertion. In fact, at the sentencing hearings, the
district court did not mention Denney's 1987 case nor was the question of whether he was
on parole or probation discussed.

Under both K.S.A. 1992 Supp. 21-4608(1) and K.S.A. 1993 Supp. 21-4608(a), the
district court had the discretion to order the sentences to run concurrent or consecutive.
Since Denney is unable to point to anything in the record on appeal to support his

7
assertion that the district court erroneously exercised its discretion in imposing
consecutive sentences, we find that he fails to meet his burden to show his sentence was
illegal for this reason.

Denney also suggests that the district court resentenced him to a harsher sentence
in Case No. 1993 CR 1268 than the original sentence it imposed the previous day. Once
again, this argument is not supported by the record on appeal. Rather, a review of the
record reveals that the district court actually imposed a shorter sentence in Case No. 1993
CR 1268 when it resentenced Denney.

Originally, the district court imposed a controlling sentence of 289 months in 1993
CR 1268 to run consecutive to a 36 years to life sentence imposed in Case No. 1993 CR
1343. The next day, on March 3, 1994, the district court resentenced Denney after it
recognized that the original sentence was incorrect because it used a criminal history
score of B for all the crimes of conviction in Case No. 1993 CR 1268 instead of just for
the base crime. Significantly, the district court did not change the sentence in Case No.
1993 CR 1343, but it did reduce the controlling sentence in Case No. 1993 CR 1268 from
289 months to 228 months.

In other words, the district court caught its mistake and appropriately made the
decision to correct the mistake the day after Denney was originally sentenced. In doing
so, the district court did not impose a harsher sentence. Instead, the district court reduced
the controlling sentence in one case while leaving the sentence in the other case in place.
As noted above, Kansas courts may correct an illegal sentence at any time. K.S.A. 22-
3504(a).

In summary, the district court initially sentenced Denney in Case No. 1993 CR
1268 using an incorrect criminal history score. The following day, the district court
corrected its error and imposed a controlling sentence that was shorter than the

8
controlling sentence that was initially imposed. Denney has failed to show that the district
court imposed an illegal sentence by imposing a greater sentence than the one previously
imposed. Under these circumstances, we conclude that Denney has failed to meet his
burden to show his sentence was illegal for this reason.

Next, Denney argues that the district court vindictively sentenced him without
considering mitigating factors. But a review of the record reveals that Denney received a
presumptive sentence within the parameters established by Kansas law. As discussed
above, a sentence is illegal under K.S.A. 22-3504(c)(1) only if it: (1) was imposed by a
court lacking jurisdiction; (2) does not conform to statutory provisions in character or
term of punishment authorized; or (3) is ambiguous with regard to the time and manner it
is to be served. Cook, 319 Kan. at 779. As our Supreme court has "'repeatedly held . . .
K.S.A. 22-3504(1) has very limited applicability.' [Citations omitted.]" Makthepharak v.
State, 298 Kan. 573, 581, 314 P.3d 876 (2013).

A panel of this court has found that a motion to correct illegal sentence under
K.S.A. 22-3504 is not a proper vehicle for asserting a claim of judicial vindictiveness.
See State v. Lewis, No. 122,848, 2021 WL 1704344, at *2 (Kan. App. 2021) (unpublished
opinion). This is because a claim that a district court has acted vindictively is derived
from the right to due process under the Fourteenth Amendment to the United States
Constitution, and a claim of constitutional error in sentencing is not appropriately raised
in a motion to correct illegal sentence under K.S.A. 22-3504. 2021 WL 1704344, at *3.

Here, in denying Denney's motion to correct illegal sentence, the district court
appropriately found that Denney's "sentence was not increased upon resentencing, but
decreased, defeating any claim of retaliatory behavior by the sentencing judge." As
addressed above, the record on appeal confirms this fact. Additionally, we note that
Denney fails to provide any support for his claim that the district court acted vindictively.
Even though Denney attached several documents to his motion to correct illegal sentence

9
that he claims show that the district court ignored mitigating factors at sentencing, he
acknowledges that the district court did not have this purported "mitigating evidence" at
the time of sentencing.

Because a motion to correct illegal sentence is not an appropriate procedural
vehicle to resolve a claim of judicial vindictiveness and Denny has failed to show that the
district court was either vindictive or failed to consider mitigating factors, we find that
the district court properly denied the motion on this contention. In conclusion, we find
that Denney has failed to show that his sentences were illegal for any of the reasons
raised on appeal.

Denial of Motion to Reconsider

Denney contends that the district court erred by denying his motion to reconsider
the denial of his motion to correct illegal sentence. A motion to reconsider provides the
district court with an opportunity to reexamine its rulings, and such motions are generally
treated as motions to alter or amend judgment. See K.S.A. 60-259(f); Exploration Place,
Inc. v. Midwest Drywall Co., 277 Kan. 898, 900, 89 P.3d 536 (2004). We review a denial
of a motion to reconsider or alter or amend judgment for an abuse of discretion. State v.
Campbell, 317 Kan. 511, 529, 532 P.3d 425 (2023).

Here, Denny's motion to reconsider merely repeated the arguments asserted in his
motion to correct illegal sentence. The district court denied the motion to reconsider for
this reason. Similarly, given the fact that Denney did not raise new arguments—and we
have found that the district court properly denied his motion to correct illegal sentence—
we find that the district court appropriately exercised its discretion in denying Denney's
motion to reconsider.

Affirmed.

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