                  IN THE SUPREME COURT OF THE STATE OF KANSAS

                                             No. 115,925

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                          VERNON J. AMOS,
                                             Appellant.


                                  SYLLABUS BY THE COURT

        A claim that a sentence is illegal because it violates the constitution cannot be
brought via K.S.A. 22-3504(1). Nor can a K.S.A. 22-3504(1) motion to correct an illegal
sentence serve as the procedural vehicle for attacking the constitutionality of K.S.A.
2016 Supp. 21-6620(f), which makes legislation enacted in response to Alleyne v. United
States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), inapplicable to sentences
that were final before June 17, 2013.


        Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed December 15,
2017. Affirmed.


        Randall L. Hodgkinson, of Kansas Appellate Defender Office, was on the brief for appellant.


        Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.


The opinion of the court was delivered by


        LUCKERT, J.: In 2013, the Kansas Legislature held a special session in response to
the United States Supreme Court's decision in Alleyne v. United States, 570 U.S. 99,
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133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and enacted provisions requiring jury findings
before an enhanced mandatory minimum sentence can be imposed for persons convicted
of premeditated first-degree murder. L. 2013, ch. 1 (now codified at K.S.A. 2016 Supp.
21-6620). In this appeal, Vernon J. Amos argues he is entitled to a new sentencing
hearing under this 2013 legislation even though his sentence was imposed in 1999 and
became final after exhaustion of his direct appeal in 2001.


        Before us, Amos recognizes the Kansas Legislature provided the 2013 legislation
"shall not apply to cases in which the defendant's conviction and sentence were final prior
to June 17, 2013." K.S.A. 2016 Supp. 21-6620(f). But, for the first time on appeal, he
argues this restriction violates the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution. Because the effect of this attack would ultimately lead
to application of the amended provisions, Amos argues this court has jurisdiction under
K.S.A. 22-3504(1), the statute allowing the court to consider an illegal sentence at any
time.


        We reject Amos' argument. Although Amos couches his claim in statutory terms
in an attempt to fit his arguments within the parameters of caselaw regarding K.S.A.
22-3504(1) motions, he primarily complains his sentence is illegal because he has been
subjected to unequal treatment in a manner prohibited by the constitution. This court has
repeatedly held a defendant cannot raise constitutional challenges to a sentence via a
motion to correct illegal sentence under K.S.A. 22-3504(1). We, therefore, affirm the
district court's summary denial of Amos' motion.


                           FACTS AND PROCEDURAL HISTORY


        In March 1999, a jury convicted Amos of first-degree murder and conspiracy to
commit aggravated robbery. In a separate sentencing hearing conducted in July 1999, a
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district court judge weighed certain aggravating and mitigating factors set forth in K.S.A.
21-4636 and K.S.A. 21-4637 and sentenced Amos to a hard 40 sentence for his first-
degree murder conviction and 120 months for his conspiracy to commit aggravated
robbery conviction. Amos appealed without raising any sentencing issues, and this court
affirmed his convictions. State v. Amos, 271 Kan. 565, 23 P.3d 883 (2001).


       Subsequently, Amos sought postconviction relief. He twice brought actions under
K.S.A. 60-1507; both motions were summarily dismissed by the district court and
affirmed by the Court of Appeals. Amos v. State, No. 90,683, 2004 WL 48887 (Kan. App.
2004); Amos v. State, No. 109,106, 2014 WL 3731905 (Kan. App. 2014). Amos also
sought federal habeas relief without success. Amos v. Roberts, 189 Fed. Appx. 830 (10th
Cir. 2006) (unpublished opinion); Amos v. Roberts, No. 04-3138-SAC, 2006 WL 354833
(D. Kan. 2006) (unpublished opinion).


       The current proceeding began in 2015, when Amos filed a pro se motion to correct
an illegal sentence. He primarily argued he was entitled to relief under two cases: State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel, 302 Kan. 560,
357 P.3d 251 (2015), and State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014),
aff'd 301 Kan. 1018, 350 P.3d 1054 (2015). He also argued he was entitled to relief under
the 2013 legislation now codified at K.S.A. 2016 Supp. 21-6620. He did not raise a
constitutional challenge to 21-6620(f), however, or even recognize its preclusive effect.


       The district court summarily denied the motion on December 15, 2015. The court's
brief order addressed the legality of the sentence but did not specifically address Amos'
attempt to invoke the legislation enacted in 2013 as a basis for granting him a new
sentencing proceeding. This appeal followed.




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                                              ANALYSIS

       Well-established principles control our consideration of a motion to correct an
illegal sentence:


       First, under the terms of K.S.A. 22-3504(1), a "court may correct an illegal
sentence at any time."


       Second, in a longstanding line of cases, we have repeatedly held that an illegal
sentence is:


       "[1] a sentence imposed by a court without jurisdiction; [2] a sentence which does not
       conform to the statutory provisions, either in the character or the term of the punishment
       authorized; or [3] a sentence which is ambiguous with respect to the time and manner in
       which it is to be served." State v. Thomas, 239 Kan. 457, 460, 720 P.2d 1059 (1986).


See, e.g., State v. Sims, 306 Kan. 618, 620, 395 P.3d 413 (2017).


During this past legislative session, the Kansas Legislature codified this definition. See
L. 2017, ch. 62, § 9.


       Third, we have also repeatedly stated that K.S.A. 22-3504(1) does not extend to
challenges alleging the sentence violates a constitutional provision. E.g., State v. Moncla,
301 Kan. 549, 553-54, 343 P.3d 1161 (2015).


       Finally, the legality of a sentence presents a question of law subject to unlimited,
de novo review. Moncla, 301 Kan. at 551; State v. Trotter, 296 Kan. 898, 901-02,
295 P.3d 1039 (2013).



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       We apply these principles to the single issue raised by Amos in his brief to this
court: Whether he is entitled to a new sentencing hearing under K.S.A. 2016 Supp.
21-6620(e). Specifically, he argues the State should be required in jury proceedings to
prove the existence of aggravating factors beyond a reasonable doubt before his
minimum sentence could be enhanced to a hard 40 sentence. See L. 2013, ch. 1; see
generally State v. Bernhardt, 304 Kan. 460, 478, 372 P.3d 1161 (2016) (discussing the
statutory amendments adopted during the 2013 special session and the legislative
history).


       Amos sought application of the 2013 special session legislation in his motion filed
with the district court. He did not argue, however, why the district court should apply the
2013 legislation in light of the statute's explicit statement that the jury trial provisions do
not apply if "the defendant's conviction and sentence were final prior to June 17, 2013."
K.S.A. 2016 Supp. 21-6620(f). In fact, Amos did not even acknowledge this exclusion.


       Before us, Amos addresses K.S.A. 2016 Supp. 21-6620(f) by making "a predicate
constitutional claim" that the exclusion violates the Equal Protection Clause of the United
States Constitution. He argues the effect of subsection (f) is to classify similarly situated
individuals—those convicted of first-degree murder whose sentences violate Apprendi v.
New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)—in a manner
that arbitrarily denies him and others their fundamental right to a jury trial as recognized
in Alleyne, 133 S. Ct. at 2155.


       In making this argument, Amos recognizes he cannot use K.S.A. 22-3504(1) to
assert that his hard 40 sentence is illegal because it violates the constitution as interpreted
and applied in Apprendi and Alleyene. See Moncla, 301 Kan. at 553-54 (holding a
defendant could not assert an Alleyne violation through 22-3504[1] "'[b]ecause the
definition of an illegal sentence does not include a claim that the sentence violates a
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constitutional provision'" [quoting State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18
(2007)]). He argues this principle does not apply here because he contends his sentence
does not conform to the statutory requirements of a jury trial and proof beyond a
reasonable doubt before a convicted defendant may be sentenced to an enhanced
minimum sentence. See K.S.A. 2016 Supp. 21-6620. We disagree.


       Amos' sentence actually conforms to K.S.A. 2016 Supp. 21-6620 because the
statute explicitly states that the new procedures Amos hopes to invoke do not apply to his
case—his sentence was final in 2001, years before the June 17, 2013, statutory cutoff.
The heart of Amos' argument is that (1) his hard 40 sentence fails to conform to the
constitutional requirements recognized in Alleyne and (2) subsection (f) must be deemed
unconstitutional because it forecloses a mechanism to redress a violation of those
constitutional rights. A claim that a sentence is illegal because it violates the constitution
cannot be brought via K.S.A. 22-3504(1), nor can a motion to correct an illegal sentence
be used as a procedural mechanism for declaring K.S.A. 2016 Supp. 21-6620(f)
unconstitutional. See Moncla, 301 Kan. at 553-54. Without that predicate step, Amos'
argument fails.


       We, thus, do not reach the merits of Amos' argument regarding K.S.A. 2016 Supp.
21-6620. For clarity we add this note: We have not considered the effect of amendments
to K.S.A. 22-3504 made during the 2017 legislative session. Among other changes,
K.S.A. 22-3504 now states: "A sentence is not an 'illegal sentence' because of a change
in the law that occurs after the sentence is pronounced." L. 2017, ch. 62, § 9. The parties
did not discuss the impact of this provision. Given that and because application of the
provision would not change the outcome of our decision, we have resolved this case
based solely on the parties' arguments.




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       As to any other issues, Amos' brief on appeal did not include the arguments he
made in district court about the application of Murdock, 299 Kan. 312, or Dickey,
50 Kan. App. 2d 468. As such, he has waived or abandoned those arguments. See State v.
Angelo, 306 Kan. 232, 236, 392 P.3d 556 (2017) (quoting McCain Foods USA, Inc. v.
Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 [2002]).


       We affirm the district court's summary dismissal of Amos' motion to correct an
illegal sentence.


       Affirmed.




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