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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 114,350

STATE OF KANSAS,

Appellee,

v.

MICHAEL A. BROWN,

Appellant.

SYLLABUS BY THE COURT

1.

A claim that a sentence was imposed in violation 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.

2.

K.S.A. 2013 Supp. 21-6620(d)(2) excludes convictions and sentences that were 

final prior to June 17, 2013, from that statute's hard 50 sentencing procedures, except for 

those cases in which the conviction or sentence is subsequently vacated in a collateral 

proceeding for some reason unrelated to the provisions of K.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.

Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed May 12, 2017. 

Judgment of the district court is affirmed. 

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, was on the brief for appellant. 
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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 denial 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 

sentence illegal. The district court rejected Brown's argument that K.S.A. 2013 Supp. 21-

6620 mandates retroactive application of Alleyne and accordingly denied postconviction 

relief. We affirm. 

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 and 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 K.S.A. 60-1507 motion, which was denied in 2004, and a K.S.A. 22-3504 

motion to correct an illegal sentence, which was denied in 2011. Brown v. State, No. 

90,900, 2004 WL 2694255 (Kan. App. 2004) (unpublished opinion), rev. denied 279 

Kan. 1005 (2005); State v. Brown, No. 101,275, 2011 WL 1344637 (Kan. App. 2011) 

(unpublished opinion). Brown has also unsuccessfully sought habeas relief in the United 

States District Court on two occasions. Brown v. McKune, No. 05-3437-SAC, 2006 WL 

2037394 (D. Kan. 2006) (unpublished opinion); Brown v. McKune, No. 11-3147-SAC, 

2013 WL 823317 (D. Kan. 2013) (unpublished opinion), appeal dismissed 517 Fed.

Appx. 623 (10th Cir. 2013) (unpublished opinion).
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The current action began in 2013 when Brown filed a pro se K.S.A. 22-3504 

motion to correct an illegal sentence. After appointing counsel and hearing arguments, 

the district court denied relief under K.S.A. 22-3504, finding that Alleyne did not apply 

retroactively to cases that were final when it was decided. 

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 sentence 

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 Kansas 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 K.S.A. 22-3504. We held that, because the definition of an illegal 

sentence does not include a claim that the sentence violates a constitutional provision, a 

defendant cannot use a motion to correct an illegal sentence under K.S.A. 22-3504 to 
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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 K.S.A. 2013 Supp. 21-6620 that 

would mandate the retroactive application of Alleyne. Brown recognizes that he could 

have brought his motion under K.S.A. 60-1507 but chose not to, given his confidence in 

this statutory argument. It is unlikely Brown would have found success with a K.S.A. 60-

1507 motion, given the dual barriers of untimeliness and successiveness. See Kirtdoll, 

306 Kan. at ___, slip op. at 7-8; Verge v. State, 50 Kan. App. 2d 591, 335 P.3d 679 

(2014), rev. denied 302 Kan. 1022 (2015). 

The hard 40/50 sentencing statute, K.S.A. 2013 Supp. 21-6620, was amended by 

special legislative session after Alleyne was decided. See L. 2013, ch. 1, § 1 (Special 

Session); Soto, 299 Kan. at 128. We exercise de novo review to interpret its provisions. 

See State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015) (statutory interpretation 

of a legal question subject to unlimited review). In relevant part, K.S.A. 2013 Supp. 21-

6620 provides:

"(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 were final prior to June 17, 2013, unless the 

conviction or sentence has been vacated in a collateral proceeding, including, but not 

limited to, K.S.A. 22-3504 or 60-1507, and amendments thereto; and (3) shall apply only 

in sentencing proceedings otherwise authorized by law.
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"(e) Notwithstanding the provisions of subsection (f), for all cases on appeal on 

or after 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 to 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 

K.S.A. 2013 Supp. 21-6620 are not triggered. 

Brown's argument puts the cart before the horse. K.S.A. 2013 Supp. 21-6620(d)(2) 

lays out the procedure to be followed if the sentence in a case that was final before June 

17, 2013, is later vacated in a collateral proceeding. But the statute does not provide an 

independent basis for vacating those sentences; nor does it mandate vacating those 

sentences. 

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 vacated 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, K.S.A. 2013 Supp. 21-6620 was simply not 

applicable to the resolution of the case. Brown's confusion apparently stems from Soto's 

declination of the invitation to give an advisory opinion on whether K.S.A. 2013 Supp. 
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21-6620 could be used by the State to attempt to resentence Brown to a hard 40 life 

sentence after remand to the district court. Given that Brown's sentence is not being 

vacated, the validity of the retroactivity provisions in K.S.A. 2013 Supp. 21-6620 are 

definitely not germane in his case. 

Brown's statutory 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 K.S.A. 60-

1507 collateral attack). 

Affirmed.