The opinion of the court was delivered by
Michael Brown 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 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.
FACTUAL AND PROCEDURAL OVERVIEW
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, 822, 37 P.3d 31 (2001).
Brown has previously mounted two collateral attacks 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 App. 2004) (unpublished opinion), rev.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 App. 2011) (unpublished opinion).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 unsuccessfully sought habeas relief in the United States District Court 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 Brown v. McKune, No. 05-3437-SAC, 2006 WL 2037394 (D. Kan. 2006) (unpublished opinion); Brown v. McKune, No. 11-3147-SAC, 2013 WL 823317 (D. Kan. 2013) (unpublished opinion), appeal dismissed 517 Fed. Appx. 623 (10th Cir. 2013) (unpublished opinion).
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.
RETROACTIVE APPLICATION OF ALLEYNE HOLDING TO FINAL CASES
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. at 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 unconstitutional 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, 940-43, 336 P.3d 831 (2014); State v. Hayes, 299 Kan. 861, 867-68, 327 P.3d 414 (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, 401-04, 324 P.3d 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 brought 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 to seek relief based on the constitutional holding in Alleyne. See State v. Kirtdoll, 306 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 415 (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 an 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 untimeliness and successiveness. See Kirtdoll, 306 Kan. at ___, slip op. at 7-8; Verge v. State, 50 Kan.App.2d 591, 335 P.3d 679 (2014), rev. denied 302 Kan. 1022 (2015).
The hard 40/50 sentencing statute, K.S.A. 2013 Supp. 21-6620, was amended by special legislative session after Alleyne was decided. See L. 2013, ch. 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 interpretation of a legal question subject to unlimited review). In relevant part, K.S.A. 2013 Supp. 21-6620 provides:
Brown argues that the language 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 that 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 vacating 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 vacated the defendant's sentence by applying Alleyne's new rule of law in a case that was not yet final. Soto, 299 Kan. 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 give an advisory opinion on whether K.S.A. 2013 Supp. 21-6620 could be used by the State to attempt to resentence Brown to a hard 40 life sentence after remand to the district court. Given that Brown's sentence is not being vacated, the validity of the retroactivity 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 his hard 40 life sentence, albeit he did not have any better remedial path. See Kirtdoll, 306 Kan. at ___, slip op. at 8 (Alleyne holding cannot be retroactively applied in a K.S.A. 60-1507 collateral attack).