State v. Appleby

• Decision Date: 30 April 2021
• Docket Number: No. 122,281,122,281
• Citation: 485 P.3d 1148,313 Kan. 352
• Parties: STATE of Kansas, Appellee, v. Benjamin A. APPLEBY, Appellant.
• Court: Kansas Supreme Court

313 Kan. 352

485 P.3d 1148

STATE of Kansas, Appellee,

v.Benjamin A. APPLEBY, Appellant.

No. 122,281

Supreme Court of Kansas.

Opinion filed April 30, 2021.

Wendie C. Miller, of Wichita, was on the briefs for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

Per Curiam:

Benjamin Appleby attacks the portion of his life sentence for capital murder that sets a minimum sentence of 50 years. Appleby argues he is entitled to resentencing under K.S.A. 2020 Supp. 21-6628(c), formerly K.S.A. 21-4639, because the sentencing judge engaged in judicial fact-finding to determine that aggravating factors justified a minimum sentence of 50 years instead of the 25-year minimum that would otherwise apply.

K.S.A. 2020 Supp. 21-6628(c) does not create an avenue or independent means by which a convicted person can challenge his or her underlying sentence. We thus affirm the district court's denial of Appleby's request for relief.

FACTS AND PROCEDURAL BACKGROUND

A jury convicted Appleby of capital murder and attempted rape committed in June 2002. State v. Appleby , 289 Kan. 1017, 1025, 221 P.3d 525 (2009). The district court judge, without jury findings, imposed a hard 50 life sentence for capital murder and a 228-month consecutive sentence for attempted rape. This court reversed the attempted rape conviction as multiplicitous of the capital murder count on direct appeal. 289 Kan. at 1026-33, 1069, 221 P.3d 525. We also rejected Appleby's other challenges, including a constitutional challenge to his hard 50 sentence based on Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). See Appleby , 289 Kan. at 1021, 1069, 221 P.3d 525.

Appleby has since sought relief through several avenues. He first filed a motion under K.S.A. 60-1507, alleging both trial and appellate counsel rendered ineffective assistance. The district court denied relief. He appealed, and a Court of Appeals panel rejected his arguments. Appleby v. State , No. 108,777, 2014 WL 801921 (Kan. App. 2014) (unpublished opinion).

Appleby later petitioned for federal habeas relief. These claims were also denied. See Appleby v. Cline , No. 15-3038-JTM, 2016 WL 7440821 (D. Kan. 2016) (unpublished opinion); Appleby v. Cline , 711 Fed. Appx. 459 (10th Cir. 2017) (unpublished opinion) (denying certificate of appealability and dismissing appeal), cert. denied ––– U.S. ––––, 138 S. Ct. 1173, 200 L.Ed.2d 316 (2018).

Appleby then moved to correct an illegal sentence. The State moved to summarily deny the motion. The district court ruled against Appleby, and Appleby then brought this appeal.

While his appeal was pending, this court decided State v. Coleman , 312 Kan. 114, 472 P.3d 85 (2020). There, we held that K.S.A. 2020 Supp. 21-6628(c) does not create a new avenue or independent means by which a convicted person can challenge his or her underlying sentence. 312 Kan. at 121-24, 472 P.3d 85. Both parties filed Rule 6.09 letters addressing Coleman . (2021 Kan. S. Ct. R. 40.)

The State also moved for summary disposition, arguing Coleman is a controlling decision dispositive of the appeal. See Supreme Court Rule 7.041(b) (2021 Kan. S. Ct. R. 48). Appleby filed a timely response. We then requested supplemental briefing.

This court has jurisdiction under K.S.A. 2020 Supp. 22-3601(b)(3) (allowing appeal of life sentence to Supreme Court, except for sentence imposed under K.S.A. 21-4643 or K.S.A. 2020 Supp. 21-6627 ).

ANALYSIS

Standard of Review

This case involves issues of statutory interpretation and constitutional claims. Both are questions of law subject to de novo or unlimited review. Coleman , 312 Kan. at 117, 472 P.3d 85.

History of Caselaw on Judicial Fact-finding

Appleby raises the same complaint as had Curtis L. Coleman Jr.: A judge, not a jury, found aggravating factors that served as the basis for increasing the minimum term of their life sentences from 25 years to either 40 years in Coleman's case or 50 years in Appleby's. Like Coleman, Appleby contends his sentence should be vacated because the Sixth Amendment to the United States Constitution requires a jury determine these aggravating factors. See Coleman , 312 Kan. at 117-18, 472 P.3d 85 ; Appleby , 289 Kan. at 1065-69, 221 P.3d 525.

When judges sentenced Appleby and Coleman, Kansas law allowed judicial fact-finding. And this court upheld judicial fact-finding in Appleby's and many other cases. Appleby , 289 Kan. at 1069, 221 P.3d 525 (citing cases reaching same holding). But, about five years after Appleby's direct appeal ended, this court held it was unconstitutional for a judge to increase the minimum sentence a defendant must serve based on findings made by the judge, not a jury. See State v. Soto , 299 Kan. 102, 122-24, 322 P.3d 334 (2014) (citing Alleyne v. United States , 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) ).

This court in Coleman detailed this history. 312 Kan. at 118-19, 472 P.3d 85. We need not discuss all the detail here; a short history provides context for our holding that, like Coleman, Appleby has no right to relief.

Coleman began with a discussion of Apprendi , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. In Apprendi , the United States Supreme Court held that any fact other than the existence of a prior conviction "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. That holding applied explicitly only to the determination of statutory maximum sentences and, that same year, this court declined to extend the Apprendi rule to findings made by a district court judge before imposing a mandatory minimum —the complaint Appleby makes. See State v. Conley , 270 Kan. 18, 11 P.3d 1147 (2000) (relying on McMillan v. Pennsylvania , 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 [1986] ).

Two years later, the United States Supreme Court walked the line between Apprendi and McMillan by characterizing a judge's finding that a defendant possessed, brandished, or discharged a firearm during the commission of an offense as a judicial sentencing factor rather than an element of the crime. Harris v. United States , 536 U.S. 545, 556, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). And that same year, the Supreme Court held unconstitutional Arizona's capital sentencing statutes that allowed a judge to find and balance mitigating circumstances in determining whether to impose a death sentence. Ring v. Arizona , 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

Ten years later, the United States Supreme Court overruled Harris in Alleyne . The Court found "no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum." Alleyne , 570 U.S. at 116, 133 S.Ct. 2151. Thus, the Court held that any fact that increases the minimum sentence must "be submitted to the jury and found beyond a reasonable doubt." 570 U.S. at 116, 133 S.Ct. 2151.

This court extended Alleyne to Kansas' hard 50 sentencing statutes (hard 40 for crimes committed before July 1, 1999) in Soto , 299 Kan. at 122-24, 322 P.3d 334. We later held the rule of law declared in Alleyne cannot be applied retroactively to invalidate a sentence that was final before the date of the Alleyne decision. Kirtdoll v. State , 306 Kan. 335, Syl. ¶ 1, 393 P.3d 1053 (2017).

Modification of Appleby's Sentence

While that history explains the legal basis for Appleby's complaint, it does not address the pivotal question in his appeal: Can he obtain relief from his sentence given that it was final several years before our decision in Soto and the United State Supreme Court's decision in Alleyne ? The finality of his sentence means no court has jurisdiction to modify the sentence unless there is a jurisdictional basis for presenting the argument to the court. Coleman , 312 Kan. at 119-20, 472 P.3d 85 (quoting State v. Trotter , 296 Kan. 898, 905, 295 P.3d 1039 (2013) ). Requests for a sentence modification must be "dismissed for lack of jurisdiction unless there is statutory language authorizing the specific requested relief." 312 Kan. at 120, 472 P.3d 85 (citing State v. Anthony , 274 Kan. 998, 1002, 58 P.3d 742 (2002) ).

Given that, the Coleman decision explored the potential ways a court could have jurisdiction to hear the claim of someone like Appleby or Coleman who seeks relief from the hard 40 or 50 minimum term of his or her life sentence. We considered options, even if not raised by Coleman, because "pro se postconviction pleadings must be analyzed by their content, not necessarily by their label." Coleman , 312 Kan. at 120, 472 P.3d 85. But we concluded no procedure offers a path to jurisdiction. See Coleman , 312 Kan. at 121-24, 472 P.3d 85. Appleby's briefing does not persuade us to depart from Coleman 's holdings.

One of the procedural mechanisms discussed in Coleman is a motion to correct an illegal sentence. Appleby filed his motion as one to correct an illegal sentence under K.S.A. 2020 Supp. 22-3504. That statute allows courts to consider an illegal sentence at any time, which includes after a direct appeal is final. But what constitutes an illegal sentence is not open ended, and this court has made clear that "a sentence imposed in violation of Alleyne does not fall within the definition of an ‘illegal sentence’ that may be addressed by K.S.A. 22-3504." Coleman , 312 Kan. at 120, 472 P.3d 85 (citing State v. Brown , 306 Kan. 330, Syl. ¶ 1, 393 P.3d 1049 (2017) ; State v. Moncla , 301 Kan. 549, Syl. ¶ 4, 343 P.3d 1161 (2015) ). Appleby offers no argument that counters this holding in Coleman , Brown , and Moncla .

Coleman also discussed and rejected another mechanism that can lead to post-judgment relief from a sentence: a motion for habeas relief under K.S.A. 60-1507. This statute grants a court jurisdiction to consider a collateral attack on an...