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NOT DESIGNATED FOR PUBLICATION

No. 123,811

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

MARQUATESZ R. REDMON,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge. Opinion filed 

October 7, 2022. Affirmed.

David L. Miller, of The Law Office of David L. Miller, of Wichita, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before HURST, P.J., HILL and ATCHESON, JJ.

PER CURIAM: Dressed up as a motion to correct an illegal sentence—treated by 

the district court as a prisoner's motion for habeas corpus relief—Marquatesz Redmon 

returns to this court claiming once again that his 732-month sentence for rape and other 

serious felonies violates the Eighth Amendment to the United States Constitution. 

If we consider Redmon's motion as a motion to correct an illegal sentence, then he loses 

because such a motion is not the correct way to attack a constitutional question. 

If we consider Redmon's motion as a prisoner's motion for habeas corpus relief, he loses 

because the issue could have been raised in his direct appeal, but was not. 
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Redmon's crimes

In 2014, a jury convicted Redmon of rape, aggravated burglary, aggravated 

robbery, and aggravated intimidation of a witness. The facts of Redmon's crimes are in 

the opinion from his direct appeal to this court and are not pertinent here. See State v. 

Redmon, No. 113,145, 2016 WL 5344034, at *1-3 (Kan. App. 2016) (unpublished 

opinion). At the time Redmon committed these crimes, he was 17. He was charged as a 

juvenile but later was certified for prosecution as an adult. The sentencing court 

sentenced him to a controlling sentence of 732 months' imprisonment. The district court 

also imposed lifetime postrelease supervision.

Redmon appealed his convictions, raising several issues on direct appeal. One of 

the issues was that his aggregated sentence of 732 months was categorically 

unconstitutional under the Eighth Amendment to the United States Constitution when 

imposed on a juvenile in adult court. Because Redmon had not raised this issue in district 

court and failed to explain in his brief why the matter should be heard for the first time on 

appeal, the panel that heard Redmon's direct appeal held that this issue was not properly 

preserved under Kansas Supreme Court Rule 6.02(a)(5) (2022 Kan. S. Ct. R. at 35) and 

found it abandoned. Redmon, 2016 WL 5344034, at *4-5. 

Despite so ruling, the panel continued to analyze the merits of Redmon's 

argument. The panel concluded, "Thus, we are unwilling to hold that, as a matter of law, 

Redmon's 732-month aggregate sentence is a de facto sentence of life without the 

possibility of parole. Accordingly, it cannot be said to categorically violate the Eighth 

Amendment." 2016 WL 5344034, at *6. Additionally, the panel concluded that the 

district court's discretionary sentencing exempted Redmon's sentence from any violations 

of the Eighth Amendment. The court held:
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"Even if we were to hold that Redmon's aggregate sentences of 732 months are the 

functional equivalent of a life sentence without parole for juveniles, the trial court 

afforded Redmon the full benefit of the individualized sentencing considerations required 

by Miller [v. Alabama, 567 U.S. 460, 465, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)]. 

Before imposing the aggravated presumptive sentences for Redmon's crimes, the trial 

court exercised its individualized sentencing jurisprudence by considering Redmon's 

motion for a downward dispositional or durational departure from the presumptive 

sentences, which included his mitigating qualities of his youth." 2016 WL 5344034, at 

*6.

Ultimately, the panel affirmed his convictions and sentences. 2016 WL 5344034, 

at *13. The Kansas Supreme Court denied Redmon's petition for review. 

Redmon takes a new path to attack his sentence.

In 2018, without benefit of legal counsel, Redmon moved to correct illegal 

sentence. He asserted his 732-month prison sentence violated the Eighth Amendment to 

the United States Constitution as interpreted in Graham v. Florida, 560 U.S. 48, 130 S. 

Ct. 2011, 176 L. Ed. 2d 825 (2010), and in the cases it spawned. Redmon argued that he 

will not become eligible for release until he is 79, which is the functional equivalent of a 

life sentence, in violation of Graham.

In support of this assertion, Redmon attached two documents: 

• a study suggesting that each year spent in prison translated to a two-year 

decline in life expectancy; and 

• an article which revealed that Black males suffer worse health outcomes 

and have a lower life expectancy than other demographic groups, and that 

incarceration exacerbates their health and life expectancy. 
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Redmon also argued his lifetime postrelease supervision was unconstitutional and must 

be vacated.

The district court denied Redmon's motion to correct illegal sentence. First, the 

court held that Redmon's motion to correct illegal sentence was not the proper vehicle to 

bring a constitutional challenge to a sentence. Following the ruling in State v. Moncla,

301 Kan. 549, 553-54, 343 P.3d 1161 (2015), the court held that such a challenge does 

not fall within the definition of an illegal sentence found in K.S.A. 2017 Supp. 22-3504.

The district court then construed Redmon's motion as a K.S.A. 60-1507 motion 

because he was a prisoner attacking his sentence. The court held that his Eighth 

Amendment argument was barred by res judicata because this court in his direct appeal 

rejected Redmon's challenge to his sentence on the same grounds. 

Redmon did secure some relief when the district court held that Redmon's lifetime 

postrelease supervision was unconstitutional and vacated that order.

Redmon makes no argument about the court's ruling that the constitutionality of a 

sentence does not fall within the definition of an illegal sentence that could be contested 

under K.S.A. 2017 Supp. 22-3504. But he does argue that the district court erred in 

holding that his Eighth Amendment claim was barred by res judicata. We consider this to 

be a question of law and will exercise unlimited review over it. See Herington v. City of 

Wichita, 314 Kan. 447, 450, 500 P.3d 1168 (2021). 

We do not agree with the district court that res judicata bars Redmon's claim. But 

that does not mean that Redmon prevails. 

The panel ruling on Redmon's direct appeal held that his Eighth Amendment claim 

failed because it was abandoned since he did not comply with Rule 6.02(a)(5). Simply 
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put, Redmon failed to preserve the issue. But the court spoke at length on the merits of 

the issue and stated that it was unconvinced that his sentence violated the United States 

Constitution. 

That raises a question like that in Marks v. State, No. 122,291, 2022 WL 333600, 

at *3 (Kan. App. 2022) (unpublished opinion): "When an appellate court holds a claim is 

unpreserved but observes it is, nevertheless, without merit, is the issue properly 

considered decided 'on the merits' and barred by res judicata in future proceedings?" 

Since the issue in the direct appeal here was abandoned, then all that followed was 

an advisory opinion. It was judicial dictum. 

We rely on several authorities. Judicial dictum is defined in Black's Law 

Dictionary 569 (11th ed. 2019), as "[a]n opinion by a court on a question that is directly 

involved, briefed, and argued by counsel, and even passed on by the court, but that is not 

essential to the decision and therefore not binding even if it may later be accorded some 

weight." In Schmidt v. Trademark, Inc., 315 Kan. 196, Syl. ¶ 3, 506 P.3d 267 (2022), the 

court held:

"Judicial dictum is an expression of opinion on a question directly involved in a 

particular case, argued by counsel, and deliberately ruled on by the court, although not 

necessary to a decision. While not binding as a decision, judicial dictum is entitled to 

greater weight than obiter dictum and should not be lightly disregarded." 

See State v. Spagnola, 295 Kan. 1098, 1101, 289 P.3d 68 (2012). Thus, we hold that the 

panel of Redmon's direct appeal did not decide the Eighth Amendment issue on the 

merits. For that reason, the district court was incorrect in its holding.
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But claim preclusion under the doctrine of res judicata is not limited only to a 

prior decision on the merits. If a movant could have made an argument at trial or on 

direct appeal but neglected to properly do so, they waive the opportunity to challenge the 

issue in a collateral attack. State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990). As 

discussed in Marks, the Kansas Supreme Court in Neer affirmed Neer's conviction on 

direct appeal. He later moved to correct his sentence on the grounds there was not 

sufficient evidence to sustain his conviction. The district court refused to alter Neer's 

sentence, and he appealed. On appeal, the Kansas Supreme Court declined to review 

Neer's claim based on res judicata, holding that Neer could have challenged the 

sufficiency of the evidence in his direct appeal but did not. 247 Kan. at 141-45. As in 

Neer, Redmon could have included his constitutional claim in his direct appeal, but he 

failed to properly do so, rendering this collateral attack improper.

Finally, to add to the judicial dictum, we must observe that a recent ruling of the 

Kansas Supreme Court eliminates any question about Redmon's sentence. In State v.

Gulley, 315 Kan. 86, 102, 505 P.3d 354 (2022), the court held: "Unlike life without 

parole and the death penalty, life with parole offers 'hope of restoration' because it 

provides an opportunity for release within an offender's lifetime. Consequently, Miller is 

inapplicable. With our decision, we join courts across the country that have concluded the 

same. [Citation omitted.]"

Redmon's sentence is long but there is a chance for parole. The ruling in Miller is 

inapplicable.

Since the district court reached the right result here, we uphold its ruling even 

though it relied on the wrong ground. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 

516 (2015). 

Affirmed.
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* * *

ATCHESON, J., concurring: I join in the majority's ultimate conclusion denying 

Marquatesz R. Redmon's quest for relief from the controlling 732-month sentence he 

received for his convictions on rape and other felony charges following a jury trial in 

Sedgwick County District Court. As a juvenile who had been referred for adult 

prosecution, Redmon contends the overall term of imprisonment is tantamount to a life 

sentence without parole and, therefore, amounts to cruel and unusual punishment 

violating the protections afforded criminal defendants in the Eighth Amendment to the 

United States Constitution. I would cut through the predicate procedural issues and reach 

the merits of Redmon's claim. 

Based primarily on the Kansas Supreme Court's recent decision in State v. Gulley, 

315 Kan. 86, 102-03, 505 P.3d 354 (2022), neither the overall sentence nor the 618-

month sentence on the rape conviction can be considered the legal equivalent of life 

without parole. The Eighth Amendment does preclude life without parole sentences for 

juvenile offenders convicted of crimes other than murder (or some comparable form of 

homicide). Graham v. Florida, 560 U.S. 48, 74-75, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010). Given his age and the period of incarceration, Redmon retains the actuarial 

possibility of being released from prison. Under Gulley, that is good enough to find that 

an extended sentence for a term of years does not equate to imprisonment for life without 

the possibility parole. 

Although Gulley involved a murder conviction, the court's discussion of if or when 

a sentence for a term of years might be considered comparable to imprisonment for life 

without parole under the Eighth Amendment is applicable here and undercuts Redmon's 

substantive argument. For that reason, I join in the majority's conclusion affirming the 

district court's denial of relief to Redmon and that portion of the majority opinion 

applying Gulley in coming to that conclusion.