1 NOT DESIGNATED FOR P UBLICATION

N o . 113,356
IN THE SUPREME COURT OF THE STATE OF KANS AS

S TATE OF K ANSAS , Appell ee ,

v
. G ORDON R. B ARNES , Appell ant

.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; C HRISTOPHER M. M AGANA , judge. Opinion filed May 1 2 , 20 17

. Judgment of the district court is affirmed.

Michael P. Whalen , of Law Office of Michael P. Whalen , of Wichita , was on the brief for appellant.

Lesley A. Isherwood , assistant district attorney, Marc Bennett, district attorney, and Derek Sch midt, attorney general, w ere on the brief for appellee.

Per Curi a m : Gordon R. Barnes appeals the district court's denial of his motion 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 unconstitutional, and therefore illegal. In denying Barnes' motion, the district court analyzed whether the holding in Alleyne could be retroactively applied to Barnes by construing his pleading as2

a K.S.A. 60

- 1507 motion. Using the prospective

- only application of Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), as an analogy, the district court held that Alleyne could not be retroactively applied and, consequently, Barnes could not obtain relief in a 60

- 1507 collateral attack. We affirm

.

F ACTUAL AND P ROCEDURAL O VERVIEW

Barnes was convicted in 1996 of premediated first

- degree murder and aggravated kidnapping . On the murder conviction, the district court sentenced Ba rnes to a prison term of life without possibility of parole for 40 years (hard 40 life sentence) under a statutory scheme that required judicial fact

- finding. He also received a consecutive term of imprisonment for the aggravated kidnapping conviction. His convictions and sentences were affirmed on direct appeal. State v. Barnes , 263 Kan. 249, 948 P.2d 627 (1997) ( Barnes I ).

A pro se motion to correct an illegal sentence followed in 2013, which the district court denied and this court, in an unpublished di sposition, affirmed. State v. Barnes , No. 111,843, 2016 WL 528045 ( Kan. 2016) (unpublished opinion) ( Barnes II ). In doing so, we rejected Barnes' contention that his motion should have been liberally construed as a K.S.A. 60

- 1507 motion. 2016 WL 528045 , at *3. However, we stated that even if the motion were construed as a K.S.A. 60

- 1507 motion it would be denied as untimely under K.S.A. 60

- 1507(f). 2016 WL 528045, at *4. We further noted, "Even now, Barnes proffers no reason why the 60

- 1507(f) time limitati on should be extended, and we can discern no such manifest injustice." 2016 WL 528045 , at *4.

The current appeal arises from a 2015 pleading, entitled "Motion and Memorandum to Retroactively Apply the Alleyne Ruling to Mr. Barnes' Hard 40 Sentence , " which did not recite the statutory authority under which it was being filed.3

The Barnes II motion to correct an illegal sentence was still pending at that time. The district court, at the suggestion of Barnes' attorney, held a joint hearing on his motion with a similar motion filed in State v. Vontress , No. 113,357, this day decided (unpublished opinion)

. The parties agreed to have the district court analyze the merits of the motion s under K.S.A. 60

- 1507.

After hearing arguments, the district court ruled that it lacked jurisdiction to consider Barnes' claim under K.S.A. 22

- 3504 (correction of illegal sentence); that Barnes had not demonstrated manifest injustice to avoid dismissal of a K.S.A. 60

- 1507 motion as untimely; and that even if it considered the merits of Barnes' 60

- 1507 motion, Alleyne did not apply retroactively to Barnes ' sentence . In denying Barnes' 60

- 1507 motion, the district court's minute sheet simply adopted the State's response , which had relied on the reasoning of the Kansas Court of Ap peals panel in Verge v. State , 50 Kan. App. 2d 591, 335 P.3d 679 (2014), rev. denied 302 Kan. 1022 (2015). Verge analogized Alleyne to Apprendi , which this court had previously found was not retroactively applicable to a defendant through a collateral attack pursuant to K.S.A. 60

- 1507. 50 Kan. App. 2d at 593

- 94; s ee Whisler v. State , 272 Kan. 864, 879, 36 P.3d 290 (2001) ( Apprendi not a watershed rule that can be applied retroactively) , ce rt. denied 535 U.S. 1066 (2002).

Barnes timely appeals , arguing that because his hard 40 life sentence was the product of judicial fact

- finding found to be unconstitutional by Alleyne , his attack on his sentence should be allowed under the manifest injus tice exception for untimely 60

- 1507 motions. Our determination on retroactivity in State v. Kirtdoll , 30 6 Kan. ___, ___ P.3d

___ (No. 114,465, this day decided), resolves this issue.4 J URISDICTION
As a preliminary matter, we briefly discuss our jurisdiction to hear this case in the first instance. N

orthern Nat ural Gas Co. v. ONEOK Field Serv ice s Co ., 296 Kan. 906, 916, 296 P.3d 1106 (2013) (appellate court has duty to question jurisdiction on its ow n initiative). A ruling on a motion to correct an illegal sentence, where the sentence imposed for a homicide is imprisonment for life, is directly appealable to this court. K.S.A. 2016 Supp. 22

- 3601(b)(3). In contrast, the initial appeal of a district cou rt's ruling on a K.S.A. 60

- 1507 motion goes to the Court of Appeals. K.S.A. 2 016 Supp. 60

- 1507(d). While the motion did not designate either statutory authority, it was construed as a 60

- 1507 motion

. Consequently, the first appeal should have been to the C ourt of Appeals. But, as a matter of judicial economy, we will consider this appeal as having been transferred to this court, on our own motion. See K.S.A. 20

- 3018(c) ( S upreme C ourt can transfer case from C ourt of A ppeals on its own motion). In other words , we will dispose of the matter before us.

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

In Kirtdoll , 30 6 Kan. at ____ , slip op. at 8 , we held that the rule of law established by Alleyne cannot be applied retroactively via a K.S.A. 60

- 1507 motion to invalidate sentences in cases that were final when Alleyne was decided. We noted that the holding in Alleyne , like the Apprendi decision from which it derived, was not considered a new watersh ed rule of constitutional criminal procedure that would fit within an exception to the general rule against retroactive ly applying new rules of law on collateral review. Kirtdoll , 306 Kan. at ____, slip op. at 7

- 8; s ee Teague v. Lane , 489 U.S. 288, 311

- 13, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (establishing the exceptions permitting retroactive5

application of new rules of law). Consequently, Kirtdoll could not obtain relief from his hard 50 life sentence.

Barnes ' circumstances mirror those of Kirtdoll . His case was final when Alleyne was decided; he cannot take advantage of Alleyne 's new rule of law; and he cannot get relief from his hard 40 life sentence through a collateral attack. The district court's summary denial of Barnes' 60

- 1507 motion is affirmed.

Affirmed.