1 IN THE SUPREME COURT OF THE STATE OF KANS AS

N o . 114,350
S TATE OF K ANSAS , Appellee ,

v
. M ICHAEL A. B ROWN , Appellant.
SYLLABUS BY THE COUR T

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 conviction s 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 provis ions of K.S.A. 2013 Supp. 21

- 6620(d)(2). Th is 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. W AYNE L AMPSON , judge. Opinion filed May 12 , 20 17

. Judgment of the district court is affirmed.

Gerald E. Wells , of Jerry Wells Attorney

- at

- Law , of Lawrence , was on the brief for appellant.2

Sheryl L. Lidtke , chief deputy district attorney , Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, w ere on the brief for appellee.
The opinion of the court was delivered by

J OHNSON , J.: Michael Brown appeals the district court's denial of h is motion to correct an illegal sentence, in which he ar gued 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.

F ACTUAL AND P ROCEDURAL O VERVIEW

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, 8 22 , 37 P.3d 31 (2001).

Brown has previously mounted two collateral attack s 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 un successfully sought habeas relief in the Unit ed States District C ourt 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 (1 0th Cir. 2013) (unpublished opinion).3

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.

R ETROACTIVE A PPLICATION OF A LLEYNE H OLDING TO F INAL C ASES

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. a t 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 unconstitu tional 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, 9 4 0

- 43, 336 P.3d 831 (2014); State v. Hayes , 299 Kan. 861, 867

- 68, 327 P.3d 41 4 (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, 40 1

- 04, 324 P.3 d 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 brou ght 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 to4

see k relief based on the constitutional holding in Alleyne

. See State v. Kirtdoll , 30 6 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 41 5 (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 a n 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 untimeli ness and successiveness. See Kirtdoll , 30 6 Kan. at ___ , slip op. at 7

- 8 ; Verge v. State , 50 Kan. App. 2d 59 1 , 335 P.3d 679 ( 2014), rev. denied 302 Kan. 1022 (2015).

The hard 40/50 sentencing statute, K.S.A. 2 013 Supp. 21

- 6620, was amended by spec ial legislative session after Alleyne was decided. See L. 2013, c h. 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 interpr etation 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, 2 013, 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.5 " (e) Notw ithstanding 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

rea son 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 langu age 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 t hat 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 v acating 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 v acated the defendant's sentence by applying Alleyne 's new rule of law in a case that was not yet final. Soto , 299 K an. 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 giv e an advisory opinion on whether K.S.A. 2013 Supp.6

21

- 6620 c ould be used by the State to attempt to resentence Brown to a hard 4 0 life
sentence after remand to the district court

. Given that Brown's sentence is not being vacated, the validity of the retroa ctivity 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 hi s hard 40 life sentence, albeit he did not have any better remedial path. See Kirtdoll , 30 6 Kan. at ___ , slip op. at 8 ( Alleyne holding cannot be retroactively applied in a K.S.A. 60

- 1507 collateral attack)

.

Affirmed.