1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 123,211

S TATE OF K ANSAS , Appell ee ,

v

.
R OBERT L EWIS J ACKSON , Appell ant

.

SYLLABUS BY THE COURT

K.S.A. 1993 Supp. 21

- 4624( 1 )'s requirement that the State must file and serve "at the time of arraignment" a written notice of intent to seek a hard 40 sentence when a defendant is charged with murder in the first degree is satisfied when the State files and
serves the notice before the arraignment hearing.

Appeal from Shawnee District Court; S TEVEN R. E BBERTS , judge. Opinion filed October 8
, 20 21

. Affirm ed

.

Joseph A. Desch , of Law Office of Joseph A. Desch , of Topeka , was on the briefs for appellant.

Kurtis Wiard
, assistant solicitor general, and Derek Schmidt , attorney general, were on the brief
for appellee.

The opinion of the court was delivered by

B ILES , J.: Robert L. Jackson appeals a district court's decision denying his motion to correct an illegal sentence. He argues the hard 40 life sentence he received for a 1994 Topeka murder could not be imposed because the State did not timely file and serve its2

notic e of int ent to seek that penalty at the time of his arraignment. See K.S.A. 1993 Supp.
21

- 4624(1). Jackson correctly notes the State filed and served the required notice 50 days
before his arraignment , but we reject his claim because our caselaw holds th e statute is
satisfied when th e State files and serves this notice before arraignment

. See State v.
Richardson , 256 Kan. 69, 77, 883 P.2d 1107 (1994). We affirm the district court.

F ACTUAL AND P ROCEDURAL B ACKGROUND

A jury convicted Jackson of two coun ts of first

- degree murder and six additional offenses, all arising from a 1994 Topeka nightclub shooting

. S ee State v. Jackson , 262 Kan. 119, 120, 936 P.2d 761 (1997). T he jury recommended a hard 40 sentence for one
of the first

- degree murders after findin g Jackson "knowingly or purposely killed or created a risk of death to more than one person," that he killed the victim "in an especially heinous, atrocious or cruel manner," and that the aggravating circumstances were not outweighed by mitigat ors

. The jur y recommended a hard 15 life sentence for the
other first

- degree murder. The trial court imposed the recommended sentences to run
consecutive and ordered consecutive prison terms for the remaining felony convictions.
Jackson , 262 Kan. at 120.

In 2019, Jackson filed a pro se motion to correct an illegal sentence . He claimed
the hard 40 sentence must be vacated because the State did not provide the proper n otice of its intent to seek that penalty as required by law

. He premise d t his argument on K.S.A. 1993 Supp. 21

- 4624(1) . It provided that the State was to file and serve its notice "at the time of arraignment" if the State intended to seek a hard 40 sentenc e for first

- degree
murder. The statute also noted that the defendant "shall be sentenced as otherwise provided by law, and no mandatory term of imprison ment shall be imposed hereunder " if proper notice was not given

. I n Jackson's murder case, the parties a gree the State filed3

and served the notice on May 5, 1994

— several weeks before the June 24, 1994 arraignment.

The district court conducted a non

- evidentiary hearing on Jackson's current motion

to correct an illegal sentence

. Jackson's counsel argued the May 5, 1994 notice did not strictly comply with the statutory language . The State countered that the notice was sufficient and would not render the sentence illegal even if the early notice fell short of
strict adherence becaus e that would not deprive the sentencing court of jurisdiction or render the sentence ambiguous. The court denied the motion , noting the caselaw permits
notice at or before arraignment. Jackson appealed.

Jurisdiction is proper. See K.S.A. 2020 Supp. 22

- 360 1(b)(3); State v. Sims , 294 Kan. 821, 823

- 24 , 280 P.3d 780 (2012) ( holding Supreme C ourt has jurisdiction over motion to correct an illegal sentence filed in a case in which defendant received a life

sentence ).

S TANDARD OF R EVIEW

An appellate court reviews a district court's summary denial of a motion to correct an illegal sentence de novo because the appellate court has the same access to the motion, records, and files as the district court. Whether a sentence is illegal is a question of law subject to unlimited review. State v. R. H. , 313 Kan. 699 , 701, 490 P.3d 1157 (2021).

D ISCUSSION

As mentioned, Jackson's motion relies on K.S.A. 1993 Supp. 21

- 4624(1)

. It states :

"If a defendant is charged with murder in the first degree, the county or district attorney shall file written notice if such attorney intends, upon conviction or adjudication4

of guilt of the defendant, to request a separate sentencing proceeding to determ ine whether the defendant should be required to serve a mandatory term of imprisonment of 40 years. Such notice shall be filed with the court and served on the defendant or the defendant's attorney at the time of arraignment. If such notice is not filed an d served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of murder in the first degree, shall be sentenced as otherwise provided by law, and no mandatory term of i mprisonment shall be imposed hereunder ." (Emphasis added.)

"If faced with a hard 40 prospect, a defendant should be aware of it and be able to plan his or her strategy accordingly. Notice at the time of arraignment serves this purpose." State v. Bailey , 2 51 Kan. 156, 169, 834 P.2d 342 (1992). N otice is mandatory,
and the failure to comply strictly with the statute requires vacating the sentence. State v.
Duke , 263 Kan. 193, 197, 946 P.2d 1375 (1997)

.

In State v. Deavers , 252 Kan. 149, 168, 843 P.2d 695 (1992) , the court vacated the
defendant's hard 40 sentence because the State 's service was "beyond the requirement of
the statute
, " rejecting the State's argument that strict compliance should be excused when the prosecutor provided the notice two hours an d 20 minutes after the arraignment. In
State v. Peckham , 255 Kan. 310, 316, 875 P.2d 257 (1994)
, disapproved in part on other grounds by State v. Marsh , 278 Kan. 520, 102 P.3d 445 (2004)
, rev'd and remanded 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006), the court held the "at the time of arraignment" requirement applied to both service and filing . There, the State served its notice on the defendant at arraignment but did not file it with the court u ntil the next day

. The Peckham court vacated the defendant's hard 40 sentence. 255 Kan. at 318.

But u nlike a late notice or filing
, one filed and served before arraignment has been
held to satisfy the statute. Richardson , 256 Kan. at 77

- 78 . In that case
, the State filed and
served the notice a month before the arraignment , so t he defendant argued this did not5

meet the statut ory requirement , r elying on Deavers

. But t he Richardson c ourt upheld the
hard 40 sentence , noting the "rationale in Deavers

. . . would not require that the notice in the present case be invalidated unless 'at the time of arraignment' .

. . is construed to mean 'at the arraignment.'" 256 Kan. at 77. The Richardson c ourt rejected this construction as

" hyperliteral

. " 256 Kan. at 77. The court noted that

"notice filed and served before the time of arraignment serves the purpose of alerting a
defendant to a hard

- 40 prospect so that he or she may plan strategy accordingly. And it may be said that no prejud ice to a defendant may be shown and no legislative purpose may be shown to have been defeated or impaired by notice filed or served before the time of arraignment." Richardson , 256 Kan. at 76

- 77.

Jackson argues Richardson was not decided until after his 1 994 arraignment and substantially chang ed the strict compliance standard applied in Deavers and Peckham

. H e suggests applying Richardson would have a prohibited "ex post facto effect." There are at least three problems with this contention

.

First, any suggestion Richardson abandoned a previous strict

- compliance standard
misconstrues the caselaw. Richardson simply interpreted the statutory standard the State must strictly comply with to conclude t hat filing and service before the arraignment met the stat utory requirement that "notice shall be filed with the court and served on the defendant or the defendant's attorney at the time of arraignment." Richardson , 256 Kan.
at 77

- 78.

S econd
, even if Richardson change d the law, it was decided while Jackson's cas e

was still at the district court. "The general rule . . . is that a change in the law acts prospectively, applying only 'to all cases, state or federal, pending on direct review or not6

yet final.'" State v. Mitchell , 297 Kan. 118, 124

- 25, 298 P.3d 349 (20 13). Jackson is
bound by Richardson ' s interpretation under our general rule

.

Third, Richardson has no ex post facto effect on Jackson

. State v. Campbell , 307 Kan. 130, 135, 407 P.3d 240 (2017) ("Relying on statutes in effect at the time a crime is committed eliminates the need for an ex post facto analysis."). The Campbell court held no ex post facto problem arose when the lower court rejected a motion to correct an illegal sentence based on a recently decided case that overruled an earlier decision about the prior

- crime classification for criminal history purposes . And this was true even though the overruling decision effectively subjected the defendant to a more severe

sentence as compared to the result the movant might have obtained under the earlier
decision

. T he statute interpreted in the overruling decision was the same statute in effect
when the defendant committed the crimes , and not a law "that increased the potential punishment after [t he defendant's] crimes were committed." 307 Kan. at 136.
Richardson 's application in Jackson's case raises no ex post facto problem.

Affirmed.