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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 117,270

STATE OF KANSAS,

Appellee,

v.

BRENT L. ALFORD,

Appellant.

SYLLABUS BY THE COURT

1.

An appellate court applies a de novo standard of review to a district court's 

summary denial of a motion to correct an illegal sentence under K.S.A. 22-3504.

2.

K.S.A. 22-3504 only applies if a sentence is illegal. Whether a sentence is illegal 

is a question of law over which an appellate court has unlimited review. An illegal 

sentence under the statute is one imposed by a court without jurisdiction, a sentence that 

does not conform to the statutory provision, either in the character or the term of the 

punishment authorized, or a sentence that is ambiguous with respect to the time and 

manner in which it is to be served.

3.

A sentence that conforms to the applicable statutory provision in both character 

and term of authorized punishment is not illegal.

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed October 26, 

2018. Affirmed.
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Brent L. Alford, appellant, was on the briefs pro se.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, were on the brief for appellee.

The decision of the court was delivered by

NUSS, C.J.: Brent L. Alford appeals the district court's summary denial of his 

motion to correct an illegal sentence. Alford argues his hard 40 sentence is illegal 

because the sentencing jury considered inadmissible hearsay evidence and was wrongly 

instructed that it needed to unanimously recommend the hard 15 sentence. Because his

claims cannot be raised in a motion to correct an illegal sentence, we affirm the decision 

of the district court.

FACTS AND PROCEDURAL HISTORY

In 1993, Alford was convicted of first-degree murder, aggravated kidnapping, and 

unlawful possession of a firearm for shooting his ex-girlfriend seven times while she was 

at work. After convicting Alford of first-degree murder, the jury reconvened to determine 

whether he should receive a hard 40 sentence, i.e., a life sentence with a mandatory 

minimum of 40 years.

At sentencing, the jury was instructed to recommend a hard 40 sentence if it found 

beyond a reasonable doubt that "there are one or more aggravating circumstances and that 

they outweigh mitigating circumstances," and it was the jury's duty to return a hard 15 

verdict if "you have a reasonable doubt that aggravating circumstances outweigh 

mitigating circumstances." The jury was also instructed "[i]n order to reach a verdict in 

this case, your decision must be unanimous." Alford's jury checked its verdict form's box 

next to the aggravating circumstance that Alford committed the crime in an especially 
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heinous, atrocious, or cruel manner. Based on the jury's findings, the district court 

imposed the hard 40 sentence.

We affirmed Alford's convictions and sentence on direct appeal. State v. Alford, 

257 Kan. 830, 896 P.2d 1059 (1995). There, we held the murder victim's written 

statement regarding a prior aggravated battery was not hearsay because it was not 

admitted to prove the truth of the matter asserted. Rather, the statement was admissible to 

show discord and that Alford was distraught over the breakup, which had a bearing on his 

intent to kill. 257 Kan. at 840.

Twenty-one years later, in 2016, Alford filed two pro se motions to correct an 

illegal sentence. In the motions, Alford argued that the trial court violated K.S.A. 1993 

Supp. 21-4624(3) by permitting the sentencing jury to consider the murder victim's 

written statement regarding the earlier aggravated battery, which he contended was 

improperly admitted at trial in violation of hearsay rules and at sentencing in violation of 

due process and the Sixth Amendment right to confront witnesses. He also argued the 

court wrongly instructed the jury and the verdict form improperly implied that the jury

needed to reach a unanimous verdict on the hard 15 sentence in violation of K.S.A. 1993 

Supp. 21-4624(5).

The district court summarily denied Alford's motions holding that a motion to 

correct an illegal sentence was not the appropriate vehicle to raise constitutional 

challenges to his sentence. Alternatively, the court held the sentence imposed was lawful.

Alford appealed. We have jurisdiction under K.S.A. 2017 Supp. 22-3601 (life 

sentence).
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ANALYSIS

Issue: Alford's claims cannot be raised in a motion to correct an illegal sentence.

Alford continues to argue that two defects occurring during the sentencing phase 

of his trial render his sentence illegal. The State agrees with the district court that Alford's 

motion is barred because neither claim fits within the narrow category of those permitted 

in a motion to correct illegal sentence.

Standard of review

We review the district court's summary denial of a motion to correct an illegal 

sentence de novo because we have the same access to the motions, records, and files as 

that court. We must determine whether the documents conclusively show the defendant is 

not entitled to relief. State v. Buford, 307 Kan. 73, 74, 405 P.3d 1194 (2017). Whether a 

sentence is illegal is a question of law over which we have unlimited review. State v. 

Kingsley, 306 Kan. 530, 533, 394 P.3d 1184 (2017). A sentence that is illegal under 

K.S.A. 22-3504 may be corrected at any time. This statute has "'very limited 

applicability.'" Makthepharak v. State, 298 Kan. 573, 581, 314 P.3d 876 (2013).

Discussion

K.S.A. 22-3504 governs motions to correct a defendant's illegal sentence, and 

Alford's claims must fit within the narrow definition of an illegal sentence to qualify for 

relief. State v. Dickey, 305 Kan. 217, 220-21, 380 P.3d 230 (2016).

K.S.A. 2017 Supp. 22-3504(3) defines an illegal sentence as one "[i]mposed by a 

court without jurisdiction; that does not conform to the applicable statutory provision, 
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either in character or punishment; or that is ambiguous with respect to the time and 

manner in which it is to be served at the time it is pronounced."

Here, the only category potentially applicable to either of Alford's claims is the 

second—a sentence that fails to conform to the applicable statutory provision, either in 

character or the term of authorized punishment. Kingsley, 306 Kan. at 533.

1. THE SENTENCING JURY'S CONSIDERATION OF THE VICTIM'S PRIOR 

WRITTEN STATEMENT

Alford argues the trial court erroneously instructed the jury that it could consider 

all trial evidence during sentencing. Because the victim's written statement was admitted 

into evidence at trial, he argues the instruction informed the sentencing jury it could 

consider the statement during the sentencing phase as well. He argues K.S.A. 1993 Supp. 

21-4624(3) prohibits its consideration, however, rendering his sentence illegal.

At the time Alford committed the offense of first-degree murder, the admission of 

evidence during the hard 40 sentencing proceeding was controlled by K.S.A. 1993 Supp. 

21-4624(3). It stated:

"(3) In the sentencing proceeding, evidence may be presented concerning any 

matter that the court deems relevant to the question of sentence and shall include matters 

relating to any of the aggravating circumstances enumerated in K.S.A. 1993 Supp. 21-

4625 and amendments thereto and any mitigating circumstances. Any such evidence 

which the court deems to have probative value may be received regardless of its 

admissibility under the rules of evidence, provided that the defendant is accorded a fair 

opportunity to rebut any hearsay statements. Only such evidence of aggravating 

circumstances as the state has made known to the defendant prior to the sentencing 

proceeding shall be admissible, and no evidence secured in violation of the constitution 
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of the United States or of the state of Kansas shall be admissible. . . ." (Emphasis added.) 

K.S.A. 1993 Supp. 21-4624(3).

This statute relaxes the standard evidentiary rules as long as the defendant has an 

opportunity to rebut any hearsay statements and the evidence was not "secured in 

violation" of a constitution.

Alford argues allowing the sentencing jury to consider the victim's prior statement 

violates the United States Constitution's Sixth Amendment's confrontation clause because 

the statement lacked adequate indicia of reliability. He further argues admission of the 

statement violates due process under the Fifth Amendment of the United States 

Constitution and § 10 of the Kansas Constitution Bill of Rights because the district court 

did not make findings regarding the statement's trustworthiness and reliability. He then 

argues that admission of evidence in violation of such constitutional rights violates 

K.S.A. 1993 Supp. 21-4624(3). Because he ultimately argues a statute was violated, 

Alford contends this is a statutory claim that can be brought in a motion to correct an 

illegal sentence.

The State responds a motion to correct is not the appropriate vehicle to raise 

constitutional claims. It further argues the mere fact that defendant can point to a statute 

he believes supports his claims does not mean they fit within the narrow definition of an 

illegal sentence. In support of its argument, the State cites State v. Mebane, 278 Kan. 131, 

133-34, 91 P.3d 1175 (2004). There, this court held the district court's failure to comply 

with the statute requiring allocution at resentencing did not qualify as an argument that 

the defendant's sentence does not "conform to the statutory provision, either in character 

or the term of the punishment authorized." 278 Kan. at 134-35. We emphasized that 

Mebane's sentence conformed to the statutory provisions regarding class A, B, and C 

felonies and the Habitual Criminal Act. 278 Kan. at 134-35.
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As noted, Alford relies on K.S.A. 1993 Supp. 21-4624(3)—a subsection of the 

statute devoted to establishing evidentiary rules—to argue that it was improper for the 

jury to consider the witness' written statement. But this statute does not define the crime 

of murder, assign the category of punishment, or involve the criminal history 

classification axis. It simply addresses the evidentiary rules applicable during the 

sentencing proceeding. So this statute would not qualify as the relevant statutory 

provision implicating an illegal sentence under State v. Edwards, 281 Kan. 1334, 1337, 

135 P.3d 1251 (2006) ("'Statutory provision' as applicable to K.S.A. 22-3504[1] is the 

statute defining the crime and assigning the category of punishment to be imposed."), or 

under State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011) (incorrect criminal history 

score does not conform with the statutory provision for the term of the punishment 

authorized). Because Alford's argument does not fit within the statutory definition of an 

illegal sentence, we conclude he cannot raise this hearsay argument in a motion to correct 

an illegal sentence.

2. INSTRUCTING THE SENTENCING JURY IT NEEDED TO BE UNANIMOUS 

ON THE HARD 15

Alford also argues the sentencing instructions and verdict form wrongly instructed 

the jury it must be unanimous to impose the hard 15 sentence. At the time Alford 

committed this offense of first-degree murder, K.S.A. 1993 Supp. 21-4624 required the 

jury unanimously recommend the hard 40 sentence. But it did not require unanimity on 

the hard 15. See State v. Reed, 256 Kan. 547, 566-67, 886 P.2d 854 (1994). Thus, Alford 

would be entitled to the hard 15 if one or more jurors did not agree with imposing the 

hard 40.

The unanimity requirement of K.S.A. 1993 Supp. 21-4624 is contained in 

subsection (5) which states:
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"(5) If, by unanimous vote, the jury finds beyond a reasonable doubt that one or 

more of the aggravating circumstances enumerated in K.S.A. 1993 Supp. 21-4625 and 

amendments thereto exist and, further, that the existence of such aggravating 

circumstances is not outweighed by any mitigating circumstances which are found to 

exist, the defendant shall be sentenced pursuant to K.S.A. 1993 Supp. 21-4628 and 

amendments thereto; otherwise, the defendant shall be sentenced as provided by law. The 

jury, if its verdict is a unanimous recommendation of a sentence of a mandatory term of 

imprisonment of 40 years, shall designate in writing, signed by the foreman of the jury, 

the statutory aggravating circumstances which it found beyond a reasonable doubt. . . ."

(Emphases added.)

Alford cites Reed, 256 Kan. at 566-67, and State v. Kleypas, 272 Kan. 894, 1060-64, 40 

P.3d 139 (2001), as authority that the jury instructions and verdict form created an illegal 

sentence because they violate subsection (5) of K.S.A. 1993 Supp. 21-4624.

Reed involved a direct appeal from an imposition of a hard 40 sentence under 

K.S.A. 1993 Supp. 21-4624(5). The defendant argued the sentencing jury was wrongly 

instructed that "'your agreement upon each verdict must be unanimous.'" 256 Kan. at 567. 

This court held the instruction did not fairly state the law, but it was not clearly erroneous 

because there was no real possibility the jury would have reached a different verdict. 256 

Kan. at 567.

Kleypas also involved a direct appeal, but it concerned imposition of a death 

sentence. The defendant argued the sentencing instructions and verdict forms wrongly 

stated that a unanimous decision was required to impose a life sentence. The sentencing 

jury was provided two verdict forms—one for a death sentence and one for the sentence 

as provided by law. This court held the second form concerning the sentence as provided 

by law, i.e., the lesser sentence, erroneously informed the jury that it had to unanimously 

agree that a sentence other than death should be imposed. 272 Kan. at 1062. This court 
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concluded the erroneous verdict form materially prejudiced Kleypas' right to a fair trial 

and would require a new penalty phase hearing if that had not already been required by

another issue. 272 Kan. at 1064.

These and other distinctions aside, Alford's appeal is different from Reed and 

Kleypas because it arises from a motion to correct an illegal sentence, not a direct appeal.

Directly on point, however, is our decision in State v. Allison, 306 Kan. 80, 392 

P.3d 52 (2017). In Allison, the defendant filed a motion to correct his hard 40 sentence 

imposed under the same sentencing statutes applicable to Alford's case. Allison argued 

his sentence did not conform to K.S.A. 1993 Supp. 21-4624(5) because the verdict form 

required the jury to unanimously agree to impose a hard 15 sentence. The district court 

held the issues raised were not correctable under a motion to correct an illegal sentence. 

On appeal, Allison argued the issue could be raised in such a motion because he was not 

challenging his conviction. We rejected that argument, holding counsel's argument 

"reflects an overbroad understanding of the issues subject to challenge under K.S.A. 22-

3504(1)." 306 Kan. at 83.

Alford did not object to the jury instructions or verdict form at trial. As a result, 

this issue would be reviewed for clear error if raised during the direct appeal. K.S.A. 22-

3414(3). By raising it in a motion to correct an illegal sentence, Alford bypasses those 

limitations. K.S.A. 22-3504(1) ("The court may correct an illegal sentence at any time."). 

But the Allison court's analysis that the hard 40 sentence was not illegal because the 

statutory prerequisites were satisfied implies a limitation to what can be challenged in a 

motion to correct. Alford's argument that the procedure used to reach the verdict was 

improper is too broad to fit within such a motion.

Affirmed.