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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 98,136 STATE OF KANSAS, Appellee,
v.

KEVIN J. LABELLE, Appellant. SYLLABUS BY THE COURT 1.

The question of whether a sentence is illegal is a question of law over which this court has unlimited review. An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.

2. A litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal.

3. A trial court cannot use the same prior criminal conviction to compute a defendant's criminal history score and to double the sentence as a persistent sex offender under K.S.A. 21-4704(j).

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4. Juvenile adjudications are not to be considered in the determination of persistent sex offender status under K.S.A. 21-4704(j).

5. Under the facts of this case, because the trial court was unclear on the basis it used for classifying defendant as a persistent sex offender, the sentence is vacated and the case remanded for resentencing.

6. Construction of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., and determination of the constitutionality of its provisions are questions of law.

7. A sentence to any term within the range stated in a Kansas sentencing guidelines presumptive grid block does not violate Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), or Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

8. Under K.S.A. 21-4721(c)(1), an appellate court is without jurisdiction to consider a challenge to a presumptive sentence, even if that sentence is to the highest term in a presumptive grid block.

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 22, 2008. Appeal from Sedgwick district court; WARREN M. WILBERT, judge. Opinion filed May 28, 2010. Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, vacated in part, and remanded for resentencing.

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Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Julie A. Koon, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, and Paul E. Morrison, former attorney general, joined her on the briefs for appellee.

The opinion of the court was delivered by

NUSS, J.: Kevin J. LaBelle appeals the Court of Appeals' affirmation of the district court's denial of his motion to correct an illegal sentence. We granted LaBelle's petition for review; our jurisdiction is under K.S.A. 20-3018(b).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court err in classifying LaBelle as a persistent sex offender and in ultimately doubling his sentence pursuant to K.S.A. 21-4704? Yes. 2. Did the district court violate LaBelle's Sixth Amendment rights under the United States Constitution by sentencing him to the aggravated term in the sentencing grid block without submitting the facts to a jury for proof beyond a reasonable doubt? No.

Accordingly, we vacate LaBelle's sentence and remand for resentencing.

FACTS Pursuant to a plea agreement, in 2005 Kevin J. LaBelle pled guilty to one count of sexual exploitation of a child, a severity level 5 person offense under K.S.A. 213516(a)(2). The agreement permitted the State to ask the court to double LaBelle's sentence under K.S.A. 21-4704(j), the persistent sex offender statute.

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The original presentence investigation report (PSI) scored LaBelle's criminal history as "A" and showed 122-130-136 months as the presumptive sentencing range for his current crime of conviction. For reasons unclear in the record, the presentence investigator prepared and filed an amended PSI the day after filing the original.

The criminal history score in both the original and amended PSI was based, in part, upon LaBelle's prior adult conviction for indecent liberties with a child in 91 CR 1043. The original PSI also included in its criminal history score LaBelle's prior juvenile adjudication for indecent liberties with a child in 88 JV 1252. But the amended PSI then deleted that adjudication from the criminal history computation, lowering LaBelle's criminal history score to "B." The amended PSI also showed 228-240-256 months as the presumptive sentencing range for a severity level 5, criminal history "B" grid block, which is double that grid block's presumptive range. The amended PSI does not explain why the presumptive sentencing range is doubled. While doubling would be authorized for a persistent sex offender, the district court had not yet classified LaBelle as one.

At LaBelle's later sentencing hearing, the district court judge stated, "The [amended] presentence investigation in this matter would indicate that the defendant is a Criminal History B and also meets the requirements of a persistent sex offender under the statute." While the amended PSI never explicitly states that LaBelle is a persistent sex offender, the judge presumably derived this classification from the PSI's doubling of the presumptive sentencing range. When asked by the court, both counsel agreed that the criminal history score and persistent sex offender classification were correct. The court then formally classified LaBelle as a persistent sex offender but did not specify which prior sexually violent crime, 88 JV 1252 or 91 CR 1043, supported this finding. Ultimately, the court sentenced LaBelle to 256 months' imprisonment, i.e., double the aggravated term of 128 months in the presumptive sentencing range for his grid block.

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LaBelle filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504. His argument assumed the district court used 91 CR 1043 to classify him as a persistent sex offender. He therefore challenged the use of 91 CR 1043 to also increase his criminal history score. The district court judge overruled LaBelle's motion, writing in the motion minutes sheet, "Defendant sentenced as a persistent sex offender. No constitutional issue of upward departure is at issue." There was no further mention of this issue.

LaBelle then filed a pro se motion to alter or amend judgment. He claimed the district court's order overruling the motion to correct an illegal sentence lacked specific findings and contained inadequate conclusions. He reasserted his claim that the dual use of 91 CR 1043 was improper. The State responded that there was no dual use because the court had classified LaBelle as a persistent sex offender using his 88 JV 1252 adjudication and not his 91 CR 1043 conviction. In a motion minutes sheet, the court overruled LaBelle's motion by writing, "Abuse of remedy. Court has already ruled on the issues." The Court of Appeals affirmed. State v. LaBelle, 2008 WL 3915985, at *1-2 (2008).

More facts will be added as necessary to the analysis.

ANALYSIS Issue 1: The district court erred in classifying LaBelle as a persistent sex offender and in ultimately doubling his sentence. LaBelle claims under K.S.A. 22-3504 that he received an illegal sentence because the district court improperly classified him as a persistent sex offender. Our standard of review is as follows:

"The question of whether a sentence is illegal is a question of law over which this court has unlimited review. An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in

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character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served." Deal v. State, 286 Kan. 528, Syl.

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