                           NOT DESIGNATED FOR PUBLICATION

                                              No. 113,356

                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                         GORDON R. BARNES,
                                             Appellant.


                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed May 12,
2017. 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
Schmidt, attorney general, were on the brief for appellee.


        Per Curiam: 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 as




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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.

                         FACTUAL AND PROCEDURAL OVERVIEW


       Barnes was convicted in 1996 of premediated first-degree murder and aggravated
kidnapping. On the murder conviction, the district court sentenced Barnes 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court denied and this court, in an unpublished disposition, affirmed.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 limitation 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.

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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 motions 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 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 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; see Whisler v. State, 272 Kan. 864, 879, 36 P.3d 290 (2001) (Apprendi not a
watershed rule that can be applied retroactively), cert. 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 injustice exception for untimely 60-1507
motions. Our determination on retroactivity in State v. Kirtdoll, 306 Kan. ___, ___ P.3d
___ (No. 114,465, this day decided), resolves this issue.




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                                       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). In contrast, 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). 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 Court 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) (Supreme Court
can transfer case from Court of Appeals on its own motion). In other words, we will
dispose of the matter before us.


           RETROACTIVE APPLICATION OF ALLEYNE HOLDING TO FINAL CASES


       In Kirtdoll, 306 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
watershed rule of constitutional criminal procedure that would fit within an exception to
the general rule against retroactively applying new rules of law on collateral review.
Kirtdoll, 306 Kan. at ____, slip op. at 7-8; see Teague v. Lane, 489 U.S. 288, 311-13, 109
S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (establishing the exceptions permitting retroactive



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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.




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