ROBERT L. VERGE, Appellant, v. STATE OF KANSAS, Appellee.
No. 110,421
Court of Appeals of Kansas
July 18, 2014
335 P.3d 679 | 51 Kan. App. 2d 591
Ralph J. De Zago, of Herington, for appellant.
Kristafer R. Ailslieger, deputy solicitor general, for appellee.
Before ARNOLD-BURGER, P.J., BUSER and SCHROEDER, JJ.
ARNOLD-BURGER, J.: In 1997, Robert L. Verge was convicted of capital murder, but the jury was unable to unanimously agree on the death penalty. Accordingly, under the statute in effect at the time, he was given a life sentence and the sentencing court was given the responsibility to determine if Verge was eligible for parole after serving the minimum 25 years or whether he was going to be required to serve 40 years in prison before he could be considered for parole.
FACTUAL AND PROCEDURAL HISTORY
In November 1998, Verge was convicted of capital murder, aggravated robbery, aggravated burglary, and two-counts of felony theft. He was sentenced by the court to life imprisonment with no chance of parole for 40 years on the capital murder conviction, which was upheld by our Supreme Court in Verge I, 272 Kan. 501.
In December 2002, Verge filed a motion to correct an illegal sentence, which the district court denied. This court construed Verge‘s motion as a
In April 2010, Verge filed a second motion to correct an illegal sentence, which the district court construed as a
On August 5, 2013, Verge filed his most recent
The district court summarily dismissed Verge‘s
Verge filed a timely notice of appeal.
ANALYSIS
When the district court summarily denies a
The success of Verge‘s
The Retroactive Application of Apprendi and Alleyne in General
Our discussion of Alleyne must begin with the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). There the Court examined a New Jersey hate crime statute that allowed the maximum sentence for a crime to be enhanced if the judge found by a preponderance of the evidence that the defendant acted to intimidate on the basis of race, color, gender, handicap, religion, sexual ori-
Our Supreme Court recognized the ruling from Apprendi in State v. Gould, 271 Kan. 394, 406, 23 P.3d 801 (2001). Because
Just a few months later our Supreme Court was faced with the question of whether Apprendi applied retroactively to cases on collateral review. In Whisler v. State, 272 Kan. 864, 879, 36 P.3d 290 (2001), after a thorough review of the rules regarding retroactive application of legal decisions, the court found that Apprendi was “not a watershed rule of criminal procedure that implicates the fundamental fairness of trial” and, therefore, it did not apply retroactively to cases on collateral review.
Thirteen years later, the United States Supreme Court was faced with a similar issue, but this time as it related to the enhancement of a mandatory minimum sentence. In Alleyne, the United States Supreme Court extended Apprendi by holding that any fact that increases the mandatory minimum sentence is an element and must be submitted to a jury and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2158.
The Kansas Supreme Court first addressed the application of Alleyne to the Kansas sentencing scheme in State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014), a direct appeal. Soto was found guilty of first-degree premeditated murder. See
The Alleyne decision was filed after briefing in Soto. But cognizant of Alleyne‘s impact, the Kansas Supreme Court requested supplemental briefing to address its application to Soto‘s case. See Soto, 299 Kan. at 115. Subsequently, the court found that the hard 50 sentencing scheme was contrary to the ruling in Alleyne and declared it unconstitutional “because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.” Soto, 299 Kan. at 124. The court vacated Soto‘s sentence and remanded the case for resentencing.
Accordingly, in Soto and several cases decided after Soto, the Kansas Supreme Court has clearly applied the procedural rule announced in the Alleyne decision to cases pending on direct appeal at the time the Alleyne decision was filed. See State v. Lloyd, 299 Kan. 620, 325 P.3d 1122 (2014); State v. Astorga, 299 Kan. 395, 324 P.3d 1046 (2014); State v. DeAnda, 299 Kan. 594, 324 P.3d 1115 (2014); State v. Hilt, 299 Kan. 176, 322 P.3d 367 (2014). This brings us to the real issue in this case: whether the rule announced in the Alleyne decision applies retroactively to cases that are already final but before the court on collateral review.
To reiterate, in order to avoid a determination that Verge‘s
“In sum, before Alleyne, the United States Supreme Court held that any additional facts necessary to increase the punishment for a crime beyond the maximum punishment a judge could impose based solely on the facts reflected in the jury verdict or admitted by the defendant must be submitted to a jury and proven beyond a reasonable doubt. In contrast, additional facts necessary to increase the mandatory minimum sentence were merely sentencing factors that could be found by a judge rather than a jury.” Soto, 299 Kan. at 119.
The court indicated that Alleyne “changed [the] landscape.” Soto, 299 Kan. at 120. The court cited a litany of cases in which it had upheld the hard 40/50 sentencing scheme based on pre-Alleyne United States Supreme Court precedent. Soto, 299 Kan. at 119-20. The Tenth Circuit Court of Appeals has also determined that Alleyne does create “a new rule of constitutional law.” In re Payne, 733 F.3d 1027, 1029 (10th Cir. 2013).
However, the inquiry does not end there. Even though Alleyne is an intervening change in the law, it still needs to be determined whether Alleyne would apply retroactively to Verge‘s case, a collateral action. The general rule is that “new law will not be applied to cases on collateral attack.” Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 8, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007). But neither the United States Supreme Court, nor the Kansas Supreme Court has specifically addressed this issue as it relates to the Alleyne decision. Several Circuit Courts of Appeal, including the Second, Fourth, Seventh, and Tenth Circuits, have determined that Alleyne, as an extension of Apprendi, does not apply retroactively in collateral appeals. However, we are compelled to take note of the fact these courts base their analysis on the language of
Kansas does not have a similar statute. Our statute does not specifically refer to changes in the law as a basis for allowing successive or untimely motions for postconviction relief. Instead, the statute allows the 1-year time limitation to be disregarded to prevent “manifest injustice.”
Even though Kansas does not have the same federal statutory language, our Supreme Court has made it clear, consistent with rulings from the United States Supreme Court, that “[a] new constitutional rule of criminal procedure generally will not be applied retroactively to cases on collateral review.” (Emphasis added.) State v. Neer, 247 Kan. 137, Syl. ¶ 3, 795 P.2d 362 (1990). In Whisler, the Kansas Supreme Court noted that “the Apprendi rule (along with nearly all ground-breaking constitutional rules from the last 50 years) are matters of criminal procedure.” 272 Kan. at 878. However, there are certain exceptions to this rule.
In both Neer and Whisler our Supreme Court quoted with approval Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), which analyzed which types of new constitutional rules may be applied retroactively to cases on collateral review and concluded that only two types of constitutional rules implicate retroactivity: (1) rules that place certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe, or (2) rules that require the observance of
Alleyne is an extension of Apprendi. The United States Supreme Court has decided that other rules based on Apprendi do not apply retroactively on collateral review. See Schriro v. Summerlin, 542 U.S. 348, 358, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004) (finding that Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 [2002], which held Arizona‘s death penalty sentencing scheme unconstitutional in light of Apprendi, did not apply retroactively to cases already final on direct review). This implies that the United States Supreme Court will not declare Alleyne to be retroactive to cases that are already final on direct review. Likewise, our Supreme Court has found that Apprendi does not apply retroactively to cases on collateral review. We can find nothing that distinguishes this case from Apprendi and the analysis in Whisler when it comes to retroactivity.
In conclusion, although Alleyne created a new constitutional rule, we find that it does not apply retroactively to cases before the court on collateral review. Accordingly, the district court did not err when it summarily dismissed Verge‘s
The Retroactive Application of Alleyne in a Motion to Correct Illegal Sentence
Even if we were to liberally construe Verge‘s pro se
Determining whether a sentence is illegal is a question of law over which this court has unlimited review. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011). A motion to correct an illegal sentence may be raised at any time. 292 Kan. at 631. An “illegal” sentence, as contemplated by
Moreover, as already discussed, our Supreme Court has made clear that the procedural sentencing rule outlined in Apprendi only applies to cases that were not final at the time Apprendi was decided. In State v. Synoracki, 280 Kan. 934, 935, 126 P.3d 1121 (2006), our Supreme Court relied on the rule enunciated in Whisler, when denying a motion to correct an illegal sentence based on a case that was final several years before Apprendi was decided. Again, Alleyne is simply an extension of Apprendi, and we can conceive of no reason why the same rule would not apply.
Affirmed.