                           NOT DESIGNATED FOR PUBLICATION

                                               No. 113,357

                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                          DAMON VONTRESS,
                                             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.


        Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney and Derek Schmidt,
attorney general, were on the brief for appellee.


        Per Curiam: Damon Vontress 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 Vontress' motion, the district court analyzed whether the
holding in Alleyne could be retroactively applied to Vontress 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



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district court held that Alleyne could not be retroactively applied and, consequently,
Vontress could not obtain relief in a 60-1507 collateral attack. We affirm.

                         FACTUAL AND PROCEDURAL OVERVIEW


       Vontress was convicted in 1996 of premeditated first-degree murder, aggravated
robbery, aggravated battery, and criminal possession of a firearm. He was sentenced to an
imprisonment term of life without possibility of parole for 40 years (hard 40 life
sentence) for the first-degree murder conviction, with consecutive prison sentences of 78
months, 41 months, and 8 months, respectively, for the remaining convictions. His
conviction for aggravated battery was reversed on direct appeal, and his remaining
convictions and sentences were affirmed. State v. Vontress, 266 Kan. 248, 257, 264, 970
P.2d 42 (1998).


       A K.S.A. 60-1507 motion followed in 2008, which was denied by the district court
and affirmed by the Kansas Court of Appeals. Vontress v. State, 45 Kan. App. 2d 430,
433, 249 P.3d 452 (2011). This court granted review and similarly affirmed. Vontress v.
State, 299 Kan. 607, 619, 325 P.3d 1114 (2014).


       The current action began when, in 2015, Vontress, without citing any statutory
authority, filed a "Motion and Memorandum to Retroactively Apply the Alleyne Ruling to
Mr. Vontress' Hard 40 Sentence." The district court, at Vontress' suggestion, held a joint
hearing on his motion and a similar motion filed in State v. Barnes, No. 113,356, this day
decided (unpublished opinion). The parties agreed to have the district court analyze the
merits of Vontress' motion under K.S.A. 60-1507.


       After hearing arguments, the district court ruled it lacked jurisdiction to consider
Vontress' claim under K.S.A. 22-3504 (correction of illegal sentence); Vontress had not

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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 Vontress' 60-1507 motion, Alleyne
did not apply to Vontress. In denying Vontress' 60-1507 motion, the district court's
minute sheet adopted the State's response. Specifically, the district court 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 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. 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. The district court made no findings as to whether
Vontress provided exceptional circumstances that would justify a successive 60-1507
motion.


       Vontress timely appeals. He argues 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.


                                       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-

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1507(d). While this case was not filed under either statutory authority, it was construed as
a 60-1507 motion, and should have been appealed first 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
application of new rules of law). Consequently, Kirtdoll could not obtain relief from his
hard 50 life sentence.


       Vontress' 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. The district court's summary denial of Vontress' 60-
1507 motion is affirmed.


       Affirmed.




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