STATE OF KANSAS v. BENJAMIN A. APPLEBY
No. 122,281
IN THE SUPREME COURT OF THE STATE OF KANSAS
April 30, 2021
SYLLABUS BY THE COURT
1. In postconviction sentence modification proceedings, there must be a procedural vehicle for presenting an argument to the court.
2. Applying State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020), to the circumstances of this case, there is no procedural vehicle that allows a court to revisit a sentence that was final when Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), was decided.
Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed April 30, 2021. Affirmed.
Wendie C. Miller, of Wichita, was on the briefs for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.
PER CURIAM: Benjamin Appleby attacks the portion of his life sentence for capital murder that sets a minimum sentence of 50 years. Appleby argues he is entitled to resentencing under
FACTS AND PROCEDURAL BACKGROUND
A jury convicted Appleby of capital murder and attempted rape committed in June 2002. State v. Appleby, 289 Kan. 1017, 1025, 221 P.3d 525 (2009). The district court judge, without jury findings, imposed a hard 50 life sentence for capital murder and a 228-month consecutive sentence for attempted rape. This court reversed the attempted rape conviction as multiplicitous of the capital murder count on direct appeal. 289 Kan. at 1026-33, 1069. We also rejected Appleby‘s other challenges, including a constitutional challenge to his hard 50 sentence based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). See Appleby, 289 Kan. at 1021, 1069.
Appleby has since sought relief through several avenues. He first filed a motion under
Appleby later petitioned for federal habeas relief. These claims were also denied. See Appleby v. Cline, No. 15-3038-JTM, 2016 WL 7440821 (D. Kan. 2016) (unpublished opinion); Appleby v. Cline, No. 17-2003, 711 Fed. Appx. 459 (10th Cir. 2017) (unpublished opinion) (denying certificate of appealability and dismissing appeal), cert. denied 138 S. Ct. 1173 (2018).
Appleby then moved to correct an illegal sentence. The State moved to summarily deny the motion. The district court ruled against Appleby, and Appleby then brought this appeal.
While his appeal was pending, this court decided State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020). There, we held that
The State also moved for summary disposition, arguing Coleman is a controlling decision dispositive of the appeal. See
This court has jurisdiction under
ANALYSIS
Standard of Review
This case involves issues of statutory interpretation and constitutional claims. Both are questions of law subject to de novo or unlimited review. Coleman, 312 Kan. at 117.
History of Caselaw on Judicial Fact-finding
Appleby raises the same complaint as had Curtis L. Coleman Jr.: A judge, not a jury, found aggravating factors that served as the basis for increasing the minimum term of their life sentences from 25 years to either 40 years in Coleman‘s case or 50 years in Appleby‘s. Like Coleman, Appleby contends his sentence should be vacated because the Sixth Amendment to the United States Constitution requires a jury determine these aggravating factors. See Coleman, 312 Kan. at 117-18; Appleby, 289 Kan. at 1065-69.
When judges sentenced Appleby and Coleman, Kansas law allowed judicial fact-finding. And this court upheld judicial fact-finding in Appleby‘s and many other cases. Appleby, 289 Kan. at 1069 (citing cases reaching same holding). But, about five years
This court in Coleman detailed this history. 312 Kan. at 118-19. We need not discuss all the detail here; a short history provides context for our holding that, like Coleman, Appleby has no right to relief.
Coleman began with a discussion of Apprendi, 530 U.S. 466. In Apprendi, the United States Supreme Court held that any fact other than the existence of a prior conviction “that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. That holding applied explicitly only to the determination of statutory maximum sentences and, that same year, this court declined to extend the Apprendi rule to findings made by a district court judge before imposing a mandatory minimum—the complaint Appleby makes. See State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000) (relying on McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 [1986]).
Two years later, the United States Supreme Court walked the line between Apprendi and McMillan by characterizing a judge‘s finding that a defendant possessed, brandished, or discharged a firearm during the commission of an offense as a judicial sentencing factor rather than an element of the crime. Harris v. United States, 536 U.S. 545, 556, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). And that same year, the Supreme Court held unconstitutional Arizona‘s capital sentencing statutes that allowed a judge to find and balance mitigating circumstances in determining whether to impose a death sentence. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
Ten years later, the United States Supreme Court overruled Harris in Alleyne. The Court found “no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum.” Alleyne, 570 U.S. at 116. Thus, the Court held that any fact that increases the minimum sentence must “be submitted to the jury and found beyond a reasonable doubt.” 570 U.S. at 116.
This court extended Alleyne to Kansas’ hard 50 sentencing statutes (hard 40 for crimes committed before July 1, 1999) in Soto, 299 Kan. at 122-24. We later held the rule of law declared in Alleyne cannot be applied retroactively to invalidate a sentence that was final before the date of the Alleyne decision. Kirtdoll v. State, 306 Kan. 335, Syl. ¶ 1, 393 P.3d 1053 (2017).
Modification of Appleby‘s Sentence
While that history explains the legal basis for Appleby‘s complaint, it does not address the pivotal question in his appeal: Can he obtain relief from his sentence given that it was final several years before our decision in Soto and the United State Supreme Court‘s decision in Alleyne? The finality of his sentence means no court has jurisdiction to modify the sentence unless there is a jurisdictional basis for presenting the argument to the court. Coleman, 312 Kan. at 119-20 (quoting State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039 [2013]). Requests for a sentence modification must be “dismissed for lack of jurisdiction unless there is statutory language authorizing the specific requested relief.” 312 Kan. at 120 (citing State v. Anthony, 274 Kan. 998, 1002, 58 P.3d 742 [2002]).
Given that, the Coleman decision explored the potential ways a court could have jurisdiction to hear the claim of someone like Appleby or Coleman who seeks relief from the hard 40 or 50 minimum term of his or her life sentence. We considered options, even if not raised by Coleman, because “pro se postconviction pleadings must be analyzed by their content, not necessarily by their label.” Coleman, 312 Kan. at 120. But we concluded no procedure offers a path to jurisdiction. See Coleman, 312 Kan. at 121-24. Appleby‘s briefing does not
One of the procedural mechanisms discussed in Coleman is a motion to correct an illegal sentence. Appleby filed his motion as one to correct an illegal sentence under
Coleman also discussed and rejected another mechanism that can lead to post-judgment relief from a sentence: a motion for habeas relief under
Coleman filed his 60-1507 motion seeking to set aside his hard 50 sentence more than one year after the conclusion of his final appeal and after he had filed two previous 60-1507 motions. He claimed manifest injustice and exceptional circumstances justified allowing him to file this third motion more than a year after his appeal was final. But this court rejected his argument based on Kirtdoll, 306 Kan. at 341. There, this court had held “for 60-1507 motions to be considered hereafter, Alleyne‘s prospective-only change in the law cannot provide the exceptional circumstances that would justify a successive 60-1507
motion or the manifest injustice necessary to excuse the untimeliness of a 60-1507 motion.” Kirtdoll, 306 Kan. At 341. We thus held that Coleman could not obtain relief through a 60-1507 motion. Coleman, 312 Kan. at 120-21.
Perhaps because of this line of cases and the fact a 60-1507 motion would be successive and out-of-time, Appleby advances no argument to counter Kirtdoll‘s or Coleman‘s holding on this point. But we still mention this procedural mechanism because courts sometimes treat a pro se motion as a motion filed under 60-1507 even if labeled as something else. Yet, consistent with Coleman and Kirtdoll, converting his motion to correct an illegal sentence to a 60-1507 motion would not benefit Appleby because he has no right to relief under
Finally, like Coleman, Appleby offers
Appleby disagrees with Coleman‘s statutory analysis. He argues
Thus,
CONCLUSION
The district court properly denied Appleby‘s motion for sentence modification. There is no procedural mechanism by which a Kansas court may reconsider his sentence. Appleby and Soto do not operate retroactively to afford a remedy. And
* * *
LUCKERT, C.J., concurring: In State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020), I joined this court‘s statutory analysis of
“In the event the mandatory term of imprisonment or any provision of chapter 341 of the 1994 Session Laws of Kansas authorizing such mandatory term is held to be unconstitutional by the supreme court of Kansas or the United States supreme court, the court having jurisdiction over a person previously sentenced shall cause such person to be brought before the court and shall modify the sentence to require no mandatory term of imprisonment and shall sentence the defendant as otherwise provided by law.”
Appleby asks us to focus on the meaning of the word “authorizing.” This court previously did so in Smith v. Printup, 254 Kan. 315, 339, 866 P.2d 985 (1993). Printup included two definitions. First, Webster‘s New International Dictionary defined “authorize” as: “‘to endorse, empower, justify, or permit by or as if by some recognized or proper authority (as custom, evidence, personal right, or regulating power) . . . : SANCTION.‘“‘” Printup, 254 Kan. at 339 (quoting Webster‘s Third New International Dictionary 146 [1986]). Second, Black‘s Law Dictionary‘s defined it to mean:
““To empower; to give a right or authority to act. To endow with authority or effective legal power, warrant, or right. [Citation omitted.] To permit a thing to be done in the future. It has a mandatory effect or meaning, implying a direction to act.
““Authorized” is sometimes construed as equivalent to “permitted“; or “directed“, or to similar mandatory language. Possessed of authority; that is, possessed of legal or rightful power, the synonym of which is “competency.” [Citation omitted.]‘‘‘” Printup, 254 Kan. at 339 (quoting Black‘s Law Dictionary 133 [6th ed. 1990]).
Current definitions are consistent. E.g., Black‘s Law Dictionary 165 (11th ed. 2019) (“To give legal authority; to empower <he authorized the employee to act for him>. 2. To formally approve; to sanction <the city authorized the construction
project>.“); Merriam Webster (“1: to endorse, empower, justify, or permit by or as if by some recognized or proper authority such as custom, evidence, personal right, or regulating power) a custom authorized by time [;] 2: to invest especially with legal authority: EMPOWER//She is authorized to act for her husband.“), at https://www.merriam-webster.com/dictionary/ authorize.
Under these definitions, “authorizing” as used in
The statutory framework in June 2002 when Appleby committed capital murder was a life sentence. See
These statutes only authorized or empowered the district court to impose a hard 50 life sentence on Appleby after the district court weighed aggravating and mitigating circumstances as provided in
This court held
My analysis does not end there, however. Instead, it circles back to the jurisdiction issue discussed by the majority opinion. I make this circle because
itself contain any language granting jurisdiction; the language just quoted refers to a court having jurisdiction, meaning one that already has jurisdiction. Because the court that had jurisdiction to impose sentence lost jurisdiction once the judgment became final, I look back to statutes that provide jurisdiction through collateral proceedings.
As the majority discusses, only two possibilities exist as a procedure authorizing Appleby‘s collateral attack on his sentence: a motion to correct an illegal sentence under
Appleby did not meet the requirements imposed by
Speaking generally, it is easy to imagine situations in which a court could find exceptional circumstances exist or that the time limitation should be extended to prevent a manifest injustice and
Appleby does not present a situation that demands an extension to prevent manifest injustice, however. See Kirtdoll, 306 Kan. at 341. Nothing in
The Legislature sent this signal after the United States Supreme Court issued its Alleyne opinion and the Governor called a special session to address the hard 50 sentencing statutes. The Legislature acted expeditiously to assure courts could constitutionally impose hard 50 sentences in pending criminal cases. The Legislature‘s
staff advised the Legislature that the Alleyne rule did not apply to sentences final before the Alleyne decision. See Preliminary Report of the 2013 Special Committee on Judiciary, 3; Revisor Office‘s Memorandum on the Potential Impact of Alleyne v. United States on Kansas Law (Aug. 16, 2013), 4. And the Legislature took no action to provide relief in those cases. While legislative inaction is not always indicative of legislative intent, see State v. Quested, 302 Kan. 262, 279, 352 P.3d 553 (2015), a failure to act when addressing the subject matter provides some indication the Legislature did not intend there to be relief.
Appleby failed to establish exceptional circumstances or manifest injustice as necessary to allow a court to have jurisdiction to grant him relief under
Appleby makes an argument that could avoid or change the Kirtdoll holding, however. He contends his request for relief is based not on Alleyne but on Apprendi, which the United States Supreme Court decided before he was sentenced. He asserts we need not apply Alleyne retroactively to provide him relief.
His argument requires a conclusion that Alleyne was a mere extension of Apprendi. But, as discussed in Coleman, it was not. See Coleman, 312 Kan. at 117-19. The
In conclusion, while I now depart from one portion of the analysis in Coleman, I still conclude
I therefore concur in the result.
WILSON and STANDRIDGE, JJ., join the foregoing concurrence.