Kirtdoll v. State

• Decision Date: 12 May 2017
• Docket Number: No. 114,465,114,465
• Citation: 393 P.3d 1053
• Parties: Bryon J. KIRTDOLL, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

393 P.3d 1053

Bryon J. KIRTDOLL, Appellant,
v.
STATE of Kansas, Appellee.

No. 114,465

Supreme Court of Kansas.

Opinion filed May 12, 2017

Keith Renner, of Renner Law Office, of Topeka, was on the brief for appellant.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Johnson, J.:

Bryon Kirtdoll 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 unconstitutional, and therefore illegal. In addition to rejecting Kirtdoll's illegality-of-sentence challenge, the district court analyzed whether the holding in Alleyne could be retroactively applied to Kirtdoll by construing his pleading as 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, Kirtdoll could not obtain relief in a 60-1507 collateral attack. We affirm the denial of postconviction relief.

FACTUAL AND PROCEDURAL OVERVIEW

Kirtdoll was convicted in 2004 of first-degree murder and sentenced to an imprisonment term of life without possibility of parole for 50 years (hard 50 life sentence). His conviction and sentence were affirmed on direct appeal, where one of the issues he raised was a constitutional challenge to the hard 50 life sentence based on Apprendi . State v. Kirtdoll , 281 Kan. 1138, 1151, 136 P.3d 417 (2006).

Two K.S.A. 60-1507 motions followed, one filed in 2007 and another in 2010. Both were denied by the district court and affirmed by the Kansas Court of Appeals.

393 P.3d 1055

Kirtdoll v. State , No. 100,880, 2009 WL 2766290 (Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1094 (2010); Kirtdoll v. State , No. 107385, 2013 WL 517812 (Kan. App.) (unpublished opinion), rev. denied 297 Kan. 1246 (2013).

The current action began when, in 2013, Kirtdoll filed a pro se "Motion to Vacate Sentence," which appeared to be a motion to correct an illegal sentence. After hearing arguments, the district court dismissed Kirtdoll's motion. In a comprehensive written memorandum and order, the district court analyzed the merits of Kirtdoll's motion under both K.S.A. 22-3504 (correction of illegal sentence) and K.S.A. 60-1507 (postconviction collateral attack of sentence).

Although issued before this court's decision in State v. Moncla , 301 Kan. 549, 343 P.3d 1161 (2015), the district court reached the same conclusion regarding K.S.A. 22-3504. Specifically, the district court held that Kirtdoll's claim that his sentence was the product of an unconstitutional sentencing scheme did not fit the narrow definition of an illegal sentence for K.S.A. 22-3504 purposes, and, therefore, a motion to correct an illegal sentence could not be used to obtain the relief he sought.

The district court then, on its own, analyzed Kirtdoll's pro se motion as if it were being filed under K.S.A. 60-1507. The district court adopted the reasoning of the Kansas Court of Appeals 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 is not retroactively applicable to a defendant through a collateral attack pursuant to K.S.A. 60-1507. 50 Kan.App.2d at 593–94, 335 P.3d 679. Accordingly, the panel held that Alleyne cannot be retroactively applicable to cases that were final when the decision was released. 50 Kan.App.2d at 598, 335 P.3d 679. Therefore, because Alleyne did not apply to Kirtdoll, the district court did not view its change in the law as showing exceptional circumstances or demonstrating manifest injustice, so as to avoid dismissal of a K.S.A. 60-1507 motion as successive and untimely.

Kirtdoll timely appeals. We paraphrase his complaints as follows: (1) Pursuant to Alleyne and State v. Soto , 299 Kan. 102, 124, 322 P.3d 334 (2014), his hard 50 life sentence was the product of unconstitutional judicial fact-finding; (2) his collateral attack on his sentence should be considered as his third motion under K.S.A. 60-1507, which should be allowed under the exceptional circumstances and manifest injustice exceptions for successive and untimely motions; (3) the ex post facto clause would preclude a hard 50 resentencing; and (4) the finding of aggravating factors should not be reviewed for harmless error. Our determination on retroactivity will resolve all issues.

JURISDICTION

As a preliminary matter, we briefly discuss our jurisdiction to hear this case in the first instance. Northern Natural Gas Co. v. ONEOK Field Services Co ., 296 Kan. 906, 916, 296 P.3d 1106 (2013) (appellate court has duty to question jurisdiction on its own 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). On the other hand, the initial appeal of a district court's ruling on a K.S.A. 60-1507 motion goes to the Court of Appeals. K.S.A. 2016 Supp. 60-1507(d). This case was filed as a motion to correct illegal sentence, but construed, at least partially, as a 60-1507 motion. Consequently, as a matter of judicial economy, we will consider the 60-1507 portion of the appeal as having been transferred to this court, on our own motion. See K.S.A. 20-3018(c) (Supreme Court can transfer case from Court of Appeals on its own motion). In other words, we will dispose of the entire matter before us.

RETROACTIVE APPLICATION OF ALLEYNE HOLDING TO FINAL CASES

In Apprendi , the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. Nevertheless, the sentencing scheme in Kansas prior to Alleyne required the district court (not a

393 P.3d 1056

jury) to determine...