STATE OF KANSAS, Appellee, v. MICHAEL A. BROWN, Appellant.
No. 114,350
IN THE SUPREME COURT OF THE STATE OF KANSAS
May 12, 2017
JOHNSON, J.
Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Judgment of the district court is affirmed.
- A claim that a sentence was imposed in viоlation of the constitutional holding in Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), does not fit within the definition of an illegal sentence that may be addressed with a
K.S.A. 22-3504(1) motion to correct an illegal sentence. K.S.A. 2013 Supp. 21-6620(d)(2) еxcludes convictions and sentences that were final prior to June 17, 2013, from that statute‘s hard 50 sentencing procеdures, except for those cases in which the conviction or sentence is subsequently vacated in a collateral proceeding for some reason unrelated to the provisions ofK.S.A. 2013 Supp. 21-6620(d)(2) .This statute, K.S.A. 2013 Supp. 21-6620(d)(2) , does not provide an independent reason to correct a hard 50 life sentence that was final prior to June 17, 2013.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, was on the brief for appellant.
Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
JOHNSON, J.: Michael Brown appeals the district court‘s deniаl of his motion to correct an illegal sentence, in which he argued that Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), renders his judicially enhanced life sentеnce illegal. The district court rejected Brown‘s argument that
FACTUAL AND PROCEDURAL OVERVIEW
Brown was convicted in 1999 of first-degree murder and sentenced to an imprisonment term of life without possibility of parole for 40 years (hard 40 life sentence). His conviction аnd sentence were affirmed on direct appeal. State v. Brown, 272 Kan. 809, 822, 37 P.3d 31 (2001).
Brown has previously mounted two collateral attacks on his conviction or sentence: a
The current action began in 2013 when Brown filed a pro se
Brown timely appeals.
RETROACTIVE APPLICATION OF ALLEYNE HOLDING TO FINAL CASES
In Alleyne, the United States Supreme Court expanded the reach of the Sixth Amendment‘s right to a jury trial by requiring that any fact which increases a sentеnce beyond the mandatory minimum be submitted to a jury and proven beyond a reasonable doubt. 133 S. Ct. at 2162-63. In State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014), we found that Alleyne rendered the Kansаs hard 50 sentencing scheme unconstitutional and applied it to cases not yet final when Alleyne was decided. See State v. Moore, 302 Kan. 685, 710-11, 357 P.3d 275 (2015); State v. Killings, 301 Kan. 214, 243-44, 340 P.3d 1186 (2015); State v. Holt, 300 Kan. 985, 1009-10, 336 P.3d 312 (2014); State v. Roeder, 300 Kan. 901, 940-43, 336 P.3d 831 (2014); State v. Hayes, 299 Kan. 861, 867-68, 327 P.3d 414 (2014); State v. Lloyd, 299 Kan. 620, 643-45, 325 P.3d 1122 (2014); State v. DeAnda, 299 Kan. 594, 594-95, 324 P.3d 1115 (2014); State v. Astorga, 299 Kan. 395, 401-04, 324 P.3d 1046 (2014); State v. Hilt, 299 Kan. 176, 202-05, 322 P.3d 367 (2014). The same rationale applies to the previously imposed hard 40 sentences.
In State v. Moncla, 301 Kan. 594, 553-54, 343 P.3d 1161 (2015), we considered the propriety of raising the issue of the retroactive application of Alleyne in a collateral attack brought under
seek relief based on the constitutional holding in Alleyne. See State v. Kirtdoll, 306 Kan. ___, ___ P.3d ___ (No. 114,465, this day decided), slip op. at 8; State v. Dickey, 305 Kan. 217, 221, 380 P.3d 230 (2016); State v. Lee, 304 Kan. 416, 418, 372 P.3d 415 (2016); State v. Warrior, 303 Kan. 1008, 1010, 368 P.3d 1111 (2016); State v. Noyce, 301 Kan. 408, 410, 343 P.3d 105 (2015).
But Brown attempts to craft an interpretation of
The hard 40/50 sentencing statute,
“(d) The amendments to subsection (c) by this act:
“(1) Establish a procedural rule for sentencing proceedings, and as such shall be construed and applied retroactively to all crimes committed prior to the effective date of this act, except as provided further in this subsection; (2) shall not apply to cases in which the defendant‘s conviction and sentence wеre final prior to June 17, 2013, unless the conviction or sentence has been vacated in a collateral рroceeding, including, but not limited to,
K.S.A. 22-3504 or60-1507 , and amendments thereto; and (3) shall apply only in sentencing proceedings othеrwise authorized by law.
“(e) Notwithstanding the provisions of subsection (f), for all cases on appeal on or aftеr the effective date of this act, if a sentence imposed under this section, prior to amendment by this act, or under
K.S.A. 21-4635 , prior to its repeal, is vacated for any reason other than sufficiency of the evidence as tо all aggravating circumstances, resentencing shall be required under this section, as amended by this act, unless the prosecuting attorney chooses not to pursue such a sentence.”
Brown argues that the language in subsection (e) mandates application of the amended hard 40/50 sentencing statute and its requirement that factors that increase a sentence above its mandatory minimum be found by a jury. However, his argument ignores the condition precedent within that subsection: “if a sentence ... is vacated.” Brown‘s sentence has not been vacated; therefore, the retroactivity provisions within
Brown‘s argument puts the cart before the horse.
Brown also attempts to distinguish the posture of his case from that of the defendants in Moncla and its progeny by declaring that in Soto, we declined to rule on the retroactivity of Alleyne, deeming the issue as not ripe until resentencing was attempted. This misstates our holding in Soto. That case invalidated Kansas’ hard 50 sentencing scheme and vаcated the defendant‘s sentence by applying Alleyne‘s new rule of law in a case that was not yet final. Soto, 299 Kan. at 124. In other words, Soto applied Alleyne‘s holding prospectively, and, therefore,
Brown‘s stаtutory arguments are unavailing. Consequently, pursuant to Moncla, Brown chose the wrong vehicle with which to mount his constitutionality challenge to his hard 40 life sentence, albeit he did not have any better remedial path. See Kirtdoll, 306 Kan. at ___, slip op. at 8 (Alleyne holding cannot be retroactively applied in a
Affirmed.