                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                               No. 116,564

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                         ELTON D. DONAHUE,
                                             Appellant.


                                   SYLLABUS BY THE COURT

        A claim that a criminal sentence is illegal because it violates the United States
Constitution cannot be brought under K.S.A. 22-3504(1).


        Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed February 8, 2019.
Affirmed.


        Peter Maharry, of Kansas Appellate Defender Office, 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.


The opinion of the court was delivered by


        BILES, J.: In 1974, Elton Donahue received a life sentence with the possibility of
parole because of his convictions for aggravated kidnapping. In 2016, Donahue filed a
motion to correct an illegal sentence. He claims his sentence of life imprisonment with a
mandatory 15-year term violates the Eighth Amendment to the United States Constitution
because he was only 16 years old when he committed the crimes. The district court
summarily denied the motion. Donahue directly appeals to this court. We affirm because
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the motion is not the appropriate procedural vehicle to raise his claim. See State v.
Samuel, 309 Kan. 155, 157, 432 P.3d 666 (2019) ("[T]his court has repeatedly held a
motion to correct an illegal sentence under the statute cannot raise claims that the
sentence violates a constitutional provision.").


                         FACTUAL AND PROCEDURAL BACKGROUND

       On July 10, 1973, Donahue, then 16 years old, committed various crimes. The
State charged him with multiple counts, including two counts of aggravated kidnapping
under K.S.A. 1973 Supp. 21-3421, which was a class A felony. After a jury found him
guilty as charged, the district court sentenced him to life imprisonment with a mandatory
15-year term before being eligible for parole for the aggravated kidnapping counts. See
K.S.A. 1973 Supp. 21-4501(a) ("Class A, the sentence for which shall be death or
imprisonment for life."); K.S.A. 1973 Supp. 22-3717(2) ("Persons confined in institutions
shall be eligible for parole after fifteen [15] years if sentenced to life imprisonment.").


       In 2016, Donahue moved under K.S.A. 22-3504(1) to correct an illegal sentence
based on the United States Supreme Court decisions in Miller v. Alabama, 567 U.S. 460,
132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (holding mandatory life imprisonment without
parole for those under the age of 18 at the time of their crimes violates the Eighth
Amendment's prohibition on cruel and unusual punishments), and Montgomery v.
Louisiana, 577 U.S. __, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016) (holding Miller should
apply retroactively for purposes of state collateral review of sentence). In his
memorandum supporting the motion, Donahue acknowledged Miller was applicable only
to those juvenile offenders who were sentenced to life without the possibility of parole
but asked the district court to extend Miller to his case, i.e., serving life with the
possibility of parole.


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       The district court summarily denied the motion, reasoning it had no jurisdiction to
consider the constitutional claim in a motion to correct illegal sentence under K.S.A. 22-
3504(1), and, even if it had jurisdiction, the sentence was not unconstitutional as his
sentence was life with the possibility of parole and he was in fact paroled "several times."
See Makthepharak v. State, 298 Kan. 573, 576, 314 P.3d 876 (2013) (when presented
with a motion to correct illegal sentence, a district court should conduct an initial
examination of the motion to determine if it raises substantial issues of law or fact).


       Donahue directly appealed to this court. Jurisdiction is proper. K.S.A. 2017 Supp.
22-3601(b)(3) (direct appeal when "a maximum sentence of life imprisonment has been
imposed"); Kirtdoll v. State, 306 Kan. 335, 337, 393 P.3d 1053 (2017) ("A ruling on a
motion to correct an illegal sentence, where the sentence imposed . . . is imprisonment for
life, is directly appealable to this court.").


                                            ANALYSIS

       This court must determine whether Donahue's constitutional claim fits within the
definition of "illegal sentence." An illegal sentence under K.S.A. 22-3504 may be
corrected at any time, but the circumstances under which a sentence is deemed illegal for
K.S.A. 22-3504 purposes are "narrowly and specifically defined." State v. Swafford, 306
Kan. 537, 540-41, 394 P.3d 1188 (2017). Whether a sentence is illegal within the
statutory meaning is a question of law over which appellate courts have unlimited review.
State v. Alford, 308 Kan. 1336, Syl. ¶ 2, 429 P.3d 197 (2018); State v. Mitchell, 284 Kan.
374, 376, 162 P.3d 18 (2007).


       Donahue claims the district court was without jurisdiction to impose a sentence
that violates the Eighth Amendment. In 2016, when Donahue filed this motion, our
caselaw defined "illegal sentence" as follows:

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       "'"(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not
       conform to the applicable statutory provision, either in the character or the term of
       authorized punishment; or (3) a sentence that is ambiguous with respect to the time and
       manner in which it is to be served." State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039
       (2013).' State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015)." State v. Warrior,
       303 Kan. 1008, 1009-10, 368 P.3d 1111 (2016).


       This judicial definition was added to the current version of K.S.A. 2017 Supp. 22-
3504(3). See L. 2017, ch. 62, § 9.


       Donahue's Eighth Amendment claims do not implicate the sentencing court's
jurisdiction. See Samuel, 309 Kan. at 157 (rejected the Eighth Amendment argument
since it did not implicate the district court's jurisdiction). And this court has repeatedly
held a motion to correct an illegal sentence under the statute cannot raise claims that the
sentence violates a constitutional provision. Samuel, 309 Kan. at 157. Donahue asks us to
overrule our long-established caselaw that the Legislature codified verbatim into the
statute. We decline to do so.


       Affirmed.




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