               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                          No. 114,465

                                     BRYON J. KIRTDOLL,
                                         Appellant,

                                                v.

                                      STATE OF KANSAS,
                                          Appellee.


                               SYLLABUS BY THE COURT

1.
       The rule of law declared in Alleyne v. United States, 570 U.S. ___, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013), holding that a criminal defendant's right to a jury trial
under the Sixth Amendment to the United States Constitution requires that any fact which
increases a sentence beyond the mandatory minimum must be submitted to a jury and
proven beyond a reasonable doubt, cannot be applied retroactively to invalidate a
sentence that was final when the Alleyne decision was released.


2.
       For a K.S.A. 60-1507 motion filed in a case that was final when Alleyne v. United
States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), was decided, the change
in the law effected in Alleyne cannot provide the exceptional circumstances required to
permit a successive motion or demonstrate the manifest injustice necessary to permit an
untimely motion.


       Appeal from Shawnee District Court; CHERYL RIOS, judge. Opinion filed May 12, 2017.
Affirmed.


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        Keith Renner, of Renner Law Office, of Topeka, was on the brief for appellant.


        Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.


The opinion of the court was delivered by


        JOHNSON, J.: Bryon Kirtdoll 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 unconstitutional, and therefore illegal. In addition to rejecting Kirtdoll's
illegality-of-sentence challenge, the district court analyzed whether the holding in Alleyne
could be retroactively applied to Kirtdoll 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 district court held that
Alleyne could not be retroactively applied and, consequently, Kirtdoll could not obtain
relief in a 60-1507 collateral attack. We affirm the denial of postconviction relief.


                              FACTUAL AND PROCEDURAL OVERVIEW


        Kirtdoll was convicted in 2004 of first-degree murder and sentenced to an
imprisonment term of life without possibility of parole for 50 years (hard 50 life
sentence). His conviction and sentence were affirmed on direct appeal, where one of the
issues he raised was a constitutional challenge to the hard 50 life sentence based on
Apprendi. State v. Kirtdoll, 281 Kan. 1138, 1151, 136 P.3d 417 (2006).




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       Two K.S.A. 60-1507 motions followed, one filed in 2007 and another in 2010.
Both were denied by the district court and affirmed by the Kansas Court of Appeals.
Kirtdoll v. State, No. 100,880, 2009 WL 2766290 (Kan. App. 2009) (unpublished
opinion), rev. denied 290 Kan. 1094 (2010); Kirtdoll v. State, No. 107,385, 2013 WL
517812 (Kan. App.) (unpublished opinion), rev. denied 297 Kan. 1246 (2013).


       The current action began when, in 2013, Kirtdoll filed a pro se "Motion to Vacate
Sentence," which appeared to be a motion to correct an illegal sentence. After hearing
arguments, the district court dismissed Kirtdoll's motion. In a comprehensive written
memorandum and order, the district court analyzed the merits of Kirtdoll's motion under
both K.S.A. 22-3504 (correction of illegal sentence) and K.S.A. 60-1507 (postconviction
collateral attack of sentence).


       Although issued before this court's decision in State v. Moncla, 301 Kan. 549, 343
P.3d 1161 (2015), the district court reached the same conclusion regarding K.S.A. 22-
3504. Specifically, the district court held that Kirtdoll's claim that his sentence was the
product of an unconstitutional sentencing scheme did not fit the narrow definition of an
illegal sentence for K.S.A. 22-3504 purposes, and, therefore, a motion to correct an
illegal sentence could not be used to obtain the relief he sought.


       The district court then, on its own, analyzed Kirtdoll's pro se motion as if it were
being filed under K.S.A. 60-1507. The district court adopted 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.
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App. 2d at 598. Therefore, because Alleyne did not apply to Kirtdoll, the district court did
not view its change in the law as showing exceptional circumstances or demonstrating
manifest injustice, so as to avoid dismissal of a K.S.A. 60-1507 motion as successive and
untimely.


       Kirtdoll timely appeals. We paraphrase his complaints as follows: (1) Pursuant to
Alleyne and State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014), his hard 50 life
sentence was the product of unconstitutional judicial fact-finding; (2) his collateral attack
on his sentence should be considered as his third motion under K.S.A. 60-1507, which
should be allowed under the exceptional circumstances and manifest injustice exceptions
for successive and untimely motions; (3) the ex post facto clause would preclude a hard
50 resentencing; and (4) the finding of aggravating factors should not be reviewed for
harmless error. Our determination on retroactivity will resolve all issues.


                                       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). On the other hand, 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). This case was filed as a motion to correct illegal sentence, but
construed, at least partially, as a 60-1507 motion. Consequently, as a matter of judicial
economy, we will consider the 60-1507 portion of the appeal as having been transferred
to this court, on our own motion. See K.S.A. 20-3018(c) (Supreme Court can transfer


                                              4
case from Court of Appeals on its own motion). In other words, we will dispose of the
entire matter before us.

           RETROACTIVE APPLICATION OF ALLEYNE HOLDING TO FINAL CASES

       In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a
prior conviction, any fact 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. Nevertheless, the sentencing scheme in Kansas prior to Alleyne required
the district court (not a jury) to determine whether a defendant convicted of premeditated
first-degree murder was to be required to serve a mandatory minimum prison term of 50
years based on the judge's finding that aggravating circumstances were not outweighed
by mitigating circumstances. See K.S.A. 21-4635; cf. K.S.A. 2013 Supp. 21-6620 (post-
Alleyne provisions for jury determination of hard 50 sentencing).


       This court determined that such judicial fact-finding did not violate Apprendi
because "[i]n determining whether to impose a hard 50 sentence, the sentencing court is
considering the minimum sentence, not the maximum." State v. Warledo, 286 Kan. 927,
955, 190 P.3d 937 (2008). In other words, the statutory maximum sentence to which
Apprendi applied was life in prison for premeditated first-degree murder and a change in
the minimum sentence that must be served before parole eligibility did not change or
enhance that maximum. That holding was applied to Kirtdoll on his direct appeal to deny
his constitutional challenge to the hard 50 life sentence. Kirtdoll, 281 Kan. at 1151.


       In Alleyne, the 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 must also be submitted to a jury and proven beyond a reasonable doubt. 133 S.
Ct. at 2162-63. This court then held that the Alleyne holding rendered unconstitutional the
Kansas hard 50 sentencing scheme, which allowed a judge to determine facts that would
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enhance the mandatory minimum sentence. Soto, 299 Kan. at 124. Thereafter, this court
reversed the hard 50 sentences that had been imposed in the cases pending on appeal
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).


       For cases that were final when Alleyne was decided, this court has not directly
considered the question of whether Alleyne's new rule can be applied retroactively. We
can find guidance in Gaudina v. State, 278 Kan. 103, 92 P.3d 574 (2004), which outlined
a three-step analysis for determining whether a change in law should be applied
retroactively in a criminal case under collateral attack: (1) Whether the issue is properly
raised in the collateral attack; (2) whether the case was final when the new law was
established; and (3) if a case was final, if an exception to the general rule against
retroactive application applies. 278 Kan. at 105.


       In Moncla, 301 Kan. at 553-54, we considered the propriety of raising the issue of
retroactivity 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
also 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). Consequently, to the extent that
Kirtdoll's motion is considered a motion to correct an illegal sentence under K.S.A. 22-
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3504, it would fail the first step of the Gaudina analysis, i.e., the constitutional issue is
not properly raised in the chosen form of collateral attack.


       As the district court realized, however, the issue could properly be raised in a
K.S.A. 60-1507 motion. See Supreme Court Rule 183 (2015 Kan. Ct. R. Annot. 271).
Likewise, under the second Gaudina step, Kirtdoll's case was obviously final when the
new law was established in Alleyne. "'A conviction is generally not considered "final"
until (1) the judgment of conviction has been rendered, (2) the availability of an appeal
has been exhausted, and (3) the time for any rehearing or final review has passed.'"
Gaudina, 278 Kan. at 106 (quoting State v. Heath, 222 Kan. 50, 54, 563 P.2d 418
[1977]). As noted above, the opinion in Kirtdoll's direct appeal was filed in 2006; the
opinion on his first collateral attack was filed in 2009; and Alleyne was filed in 2013.


       In the last step of the Gaudina analysis, Kirtdoll must come within an exception to
"the general rule . . . that a new law established after a case is final will not be applied to
[that case] on collateral attack." Drach v. Bruce, 281 Kan. 1058, 1077, 136 P.3d 390
(2006). For the recognized exceptions to the general rule, we look to Teague v. Lane, 489
U.S. 288, 311-13, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), where the United States
Supreme Court reaffirmed the general rule against retroactivity, especially for new
constitutional rules of criminal procedure, unless the new rule falls into one of two
exceptions: (1) if the new rule places certain kinds of primary, private individual conduct
beyond the reach of the lawmaking authorities to prosecute; or (2) if the new rule is a
"watershed rule," the observance of which involves procedures implicit in the concept of
ordered liberty.


       While one might argue that Alleyne had a tectonic impact on criminal sentencing,
we must view the "watershed" character of its new rule through the lens of precedent.
First, the United States Supreme Court has suggested that any new watershed rules of
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constitutional criminal procedure that implicate the fundamental fairness and accuracy of
the criminal proceeding will be extremely rare and, indeed, a new one is yet to be
discovered. Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d 442
(2004).


       Further, other cases defining new rules which were at least as consequential as
Alleyne's new rule have not warranted the label, "watershed rule." For instance, this court
held that the new rule from Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004), which dramatically changed the admissibility of hearsay evidence,
was not a watershed rule of criminal procedure. Drach, 281 Kan. at 1077-78.


       The Drach court was persuaded by this court's prior determination in Whisler v.
State, 272 Kan. 864, 879, 36 P.3d 290 (2001), cert. denied 535 U.S. 1066 (2002), which
held that Apprendi did not create a watershed rule which would be retroactively
applicable on collateral review of final cases. Given that Alleyne is an extension of
Apprendi—one dealing with minimum sentences and the other dealing with maximum
sentences—it would be counterintuitive, at best, to elevate Alleyne to the watershed rule
status that was denied to Apprendi. As the district court noted, the Court of Appeals
reasoned that the analogous nature of Apprendi and Alleyne counseled against granting
Alleyne retroactive applicability on collateral review. Verge, 50 Kan. App. 2d at 594-98.


       In short, we agree with the district court's determination that the holding in Alleyne
cannot be applied retroactively to cases that were final when Alleyne was decided.
Likewise, we agree that, for 60-1507 motions to be considered hereafter, Alleyne's
prospective-only change in the law cannot provide the exceptional circumstances that
would justify a successive 60-1507 motion or the manifest injustice necessary to excuse
the untimeliness of a 60-1507 motion. But given that the district court considered
Kirtdoll's motion on the merits after hearing arguments, the more appropriate disposition
                                             8
was to summarily deny the motion, rather than dismissing it. Nevertheless, that
technicality is a distinction without a difference for Kirtdoll; his hard 50 life sentence
remains intact.


       Given our decision on the prospective-only nature of the Alleyne and Soto
holdings, the remaining issues need not be addressed.


       Affirmed.




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