                           NOT DESIGNATED FOR PUBLICATION

                                                No. 112,714

                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              STATE OF KANSAS,
                                                  Appellee,

                                                     v.

                                        JOSHUA J. ROBERTSON,
                                             Appellant.


                                    MEMORANDUM OPINION

        Appeal from Butler District Court; MICHAEL E. WARD, judge. Opinion filed May 12, 2017.
Judgment of the district court is affirmed.


        Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, and Carl F.A. Maughan, of
Maughan Law Group LC, of Wichita, were on the briefs for appellant.


        Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, were on the
briefs for appellee.




        Per Curiam: Joshua Robertson 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 denying Robertson's motion, the
district court analyzed whether the holding in Alleyne could be retroactively applied to
Robertson by construing his pleading as a K.S.A. 60-1507 motion. Determining that
Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.

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Ed. 2d 435 (2000), and using the prospective-only application of Apprendi as an analogy,
the district court held that Alleyne could not be retroactively applied and, consequently,
Robertson could not obtain relief in a 60-1507 collateral attack.


       For the first time on appeal, Robertson makes an Eighth Amendment categorical
proportionality claim that his hard 50 life sentence is cruel and unusual, albeit he does not
identify an exception that would justify his failure to preserve the issue below.

                         FACTUAL AND PROCEDURAL OVERVIEW


       Robertson was convicted in 2002 of first-degree murder, arson, and aggravated
burglary and sentenced to an imprisonment term of life without possibility of parole for
50 years (hard 50 life sentence) for the first-degree murder conviction. His convictions
and sentence were affirmed on direct appeal, where one of the issues he raised was a
constitutional challenge to the hard 50 sentence based on Apprendi. State v. Robertson,
279 Kan. 291, 109 P.3d 1174 (2005). Based on the existing United States Supreme Court
precedent at the time, this court rejected Robertson's Apprendi challenge. 279 Kan. at
308.


       Over the next 5 years, Robertson filed a succession of motions under K.S.A. 60-
1507 and K.S.A. 22-3504 that were denied by the district court, of which two were
affirmed on appeal. See State v. Robertson, 298 Kan. 342, 312 P.3d 361 (2013);
Robertson v. State, 288 Kan. 217, 201 P.3d 691 (2009).


       This appeal emanates from Robertson's 2013 pro se motion to correct an illegal
sentence under K.S.A. 22-3504. The district court denied Robertson's motion without a
hearing. In a comprehensive written order, the district court analyzed the merits of
Robertson's motion under K.S.A. 60-1507 (postconviction collateral attack of sentence).

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Citing In re Payne, 733 F.3d 1027 (10th Cir. 2013), the district court stated Robertson's
argument lacked merit because Alleyne, which is an extension of Apprendi, had not been
applied retroactively to cases on collateral review.


       Robertson timely appeals. He argues that, based on Alleyne, his hard 50 life
sentence was the product of unconstitutional judicial fact-finding, which provides the
manifest injustice to permit an untimely 60-1507 motion. See K.S.A. 2016 Supp. 60-
1507(f) (time limit to file motion). And for the first time, Robertson challenges his hard
50 life sentence as cruel and unusual under the Eighth Amendment to the United States
Constitution, albeit he fails to properly brief why his failure to preserve the issue is not
dispositive. We find both challenges to be unavailing.

                                        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). This case was filed as a motion to correct illegal sentence but construed as a 60-
1507 motion. Consequently, 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.




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           RETROACTIVE APPLICATION OF ALLEYNE HOLDING TO FINAL CASES


       In State v. Kirtdoll, 306 Kan. ___, ___ P.3d ___ (No. 114,465, this day decided),
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 did not obtain relief from his hard 50 life sentence.


       Robertson is in the same circumstance as Kirtdoll; his case was final when Alleyne
was decided. Consequently, our holding in Kirtdoll dictates that Robertson cannot take
advantage of the new rule of law in Alleyne, and we must affirm the district court's denial
of postconviction relief.


             EIGHTH AMENDMENT CATEGORICAL PROPORTIONALITY CLAIM


       The Eighth Amendment to the United States Constitution prohibits inflicting cruel
and unusual punishment, and that constitutional protection has been extended to the states
through the Fourteenth Amendment to the United States Constitution. See Robinson v.
California, 370 U.S. 660, 667, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). Robertson argues
that his hard 50 life sentence is disproportionately cruel and unusual punishment because
he was 21 years old at the time of the offense and "apparently" had a history of mental
illness.
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       Eighth Amendment proportionality challenges are divided into two classifications:
"(1) the length of term-of-years sentences given all the circumstances in a particular case;
and (2) categorical restrictions on the death penalty." State v. Dull, 302 Kan. 32, 38, 351
P.3d 641 (2015), cert. denied 136 S. Ct. 1364 (2016). The second classification also
includes cases "in which the court implements the proportionality standard based on
certain categorical restrictions." 302 Kan. at 38. Robertson confines his Eighth
Amendment claim to a categorical proportionality challenge.


       Robertson did not raise his Eighth Amendment claim at his sentencing hearing in
the district court or ask for any findings relating to the cruel and unusual nature of the
hard 50 life sentence. Likewise, Robertson did not raise this constitutional challenge in
his numerous prior postconviction motions. Generally, we do not entertain constitutional
grounds for reversal that are asserted for the first time on appeal. State v. Godfrey, 301
Kan. 1041, 1043, 350 P.3d 1068 (2015).


       Nevertheless, there are exceptions to that general rule, including when the newly
asserted theory involves only a question of law arising on proved or admitted facts and
the legal question is finally determinative of the case. See State v. Phillips, 299 Kan. 479,
493, 325 P.3d 1095 (2014). We have previously used that exception to review categorical
proportionality Eighth Amendment claims raised for the first time on appeal. See Dull,
302 Kan. at 39; State v. Williams, 298 Kan. 1075, 1084-85, 319 P.3d 528 (2014).


       But Williams gave fair warning to future appellants on how to properly brief the
question of issue preservation. The court specifically pointed to our rule in Supreme
Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39-40), which requires an appellant's
brief to contain the following information:


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               "(5)    The arguments and authorities relied on, separated by issue if there is
                       more than one. Each issue must begin with citation to the appropriate
                       standard of appellate review and a pinpoint reference to the location in
                       the record on appeal where the issue was raised and ruled on. If the issue
                       was not raised below, there must be an explanation why the issue is
                       properly before the court." (Emphasis added).


       Because prior cases had not strictly enforced that briefing rule, Williams
proceeded to reach the merits of the newly asserted Eighth Amendment issue in that case.
Nevertheless, the opinion made the following announcement:


               "But we are unwilling to ignore the rule's plain language. Future litigants should
       consider this a warning and comply with Rule 6.02(a)(5) by explaining why an issue is
       properly before the court if it was not raised below—or risk a ruling that an issue
       improperly briefed will be deemed waived or abandoned. See, e.g., State v. Tague, 296
       Kan. 993, 1001-02, 298 P.3d 273 (2013) (argument abandoned because it is not
       supported with pertinent authority as required by Rule 6.02[a][5]); [State v.] Johnson,
       293 Kan. [959,] 964-65[, 270 P.3d 1135 (2012)] (must argue why exception to
       preservation requirement applies); Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597,
       623, 244 P.3d 642 (2010) (each issue must begin with citation to appropriate standard of
       review and reference to specific location in record where issue was raised and ruled
       upon)." Williams, 298 Kan. at 1085-86.


       Then, on May 29, 2015, this court filed its opinion in Godfrey, which clarified that
the warning in Williams was not an idle threat. Because Godfrey had made no effort to
explain why review of an unpreserved constitutional issue was warranted, the Godfrey
court deemed "the appellant's brief woefully insufficient" and declared that the issue had
been "abandoned by Godfrey's failure to brief it." 301 Kan. at 1044.




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       Robertson's supplemental brief raising his Eighth Amendment claim for the first
time was filed February 12, 2016, after our decision in Godfrey. Our rules designating the
required content of an appellant's brief have not been changed. See Supreme Court Rule
6.02(a)(5) (2017 Kan. S. Ct. R. 35). Yet, Robertson made no effort to comply with Rule
6.02(a)(5) by designating one or more recognized exceptions to our preservation rule and
explaining why review of his Eighth Amendment claim—raised for the first time on
appeal—is warranted under the designated exception(s). Consequently, in accordance
with Williams and Godfrey, we deem Robertson's Eighth Amendment categorical
challenge to have been abandoned for failure to properly brief the issue.


       Affirmed.




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