                  IN THE SUPREME COURT OF THE STATE OF KANSAS

                                            No. 114,468

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                         ALAN KINGSLEY,
                                           Appellant.


                                 SYLLABUS BY THE COURT

1.
        K.S.A. 22-3504(1), which governs correction of illegal sentences, applies only
under very limited circumstances. An illegal sentence under this statute is a sentence
imposed by a court without jurisdiction; a sentence that does not conform to the statutory
provision, either in the character or the term of the punishment authorized; or a sentence
that is ambiguous with respect to the time and manner it is to be served.


2.
        A claim that a sentence fails to conform to constitutional requirements is not a
claim that the sentence fails to conform to statutory requirements as is necessary to come
within the narrow definition of "illegal sentence" under K.S.A. 22-3504(1).


        Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed June 2, 2017.
Affirmed.


        Michael P. Whalen and Krystle Dalke, of Law Office of Michael P. Whalen, of Wichita, were on
the brief for appellant.




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        Boyd K. Isherwood, 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.: Alan W. Kingsley was convicted of first-degree premeditated murder
for a 1991 killing. The jury recommended a hard 40 life sentence, which the district court
imposed. Kingsley now claims the sentence was illegal because it was based on an
incorrect criminal history score and that his due process rights were violated when his
sentence was imposed based on that error. The district court summarily rejected these
claims, and we affirm.


                            FACTUAL AND PROCEDURAL BACKGROUND


        A jury convicted Kingsley of four 1991 crimes: first-degree murder on the
alternative theories of both premeditated and felony murder, aggravated robbery,
aggravated arson, and forgery. As part of the proceedings, the jury found three
aggravating circumstances: (1) Kingsley committed the crime for pecuniary gain; (2) he
committed the crime to avoid or prevent arrest or prosecution; and (3) he committed the
crime in an especially heinous, atrocious, or cruel manner. It also found the aggravating
circumstances were not outweighed by any mitigating circumstances and recommended a
hard 40 life sentence.


        The sentencing court accepted the jury's recommendation. In doing so, the court
noted its "discretion . . . [was] extremely limited" under the hard 40 sentencing statute.
The court first concluded there was sufficient evidence to support the findings of
aggravating circumstances. Next, it reviewed each of the factors enumerated in K.S.A.
21-4606—the statute that provided the general rule at that time on ascertaining the

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minimum prison term to be imposed on a person convicted of a crime. In reviewing one
of the factors, "the defendant's history of prior criminal activity," the court noted:


               "The presentence investigation indicates that he does have a significant history of
       prior criminal activity in the State of Florida. Seems to reflect convictions for forgery,
       possession of cocaine, burglary, robbery, and it is not certain from the record I've
       received whether or not he was convicted of hit and run with personal injury involved,
       although there have certainly been two arrests for his and run with personal injury and
       with property damage. The report I have received discloses that in Florida, anyway, he is
       categorized as a habitual felony offender."


       In addition to the hard 40 sentence, the court imposed respective 15-year-to-life
sentences for aggravated robbery and aggravated arson, and a 1- to 5-year sentence for
forgery. The court ordered that the aggravated arson and forgery sentences run
consecutive to the murder and aggravated robbery sentences, which were also to run
consecutive to one another.


       On direct appeal, this court vacated the aggravated arson conviction and remanded
the case for resentencing on the lesser charge of arson. State v. Kingsley, 252 Kan. 761,
782, 851 P.2d 370 (1993). But the court affirmed the hard 40 sentence. 252 Kan. at 796.
At resentencing, the district court imposed a 5- to 20-year sentence for arson. The net
result of these proceedings was that Kingsley was sentenced to a hard 40 life sentence, a
consecutive 15-year-to-life sentence, and a consecutive 5- to 20-year sentence.


       In 2014, Kingsley filed a motion to correct an illegal sentence seeking conversion
of his indeterminate sentences to grid sentences under the Kansas Sentencing Guidelines
Act (KSGA). See K.S.A. 21-4701 et seq. He relied on our decision in State v. Murdock,
299 Kan. 312, 319, 323 P.3d 846 (2014) (regarding person/nonperson classification of
prior out-of-state offenses for purposes of calculating criminal history score), overruled

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by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016).
In a supplemental pro se motion, Kingsley argued his original presentence investigation
(PSI) revealed 1988 Florida convictions for robbery and grand larceny that never
occurred. Kingsley's appointed counsel filed a similar motion challenging the inaccurate
PSI and arguing: "Without counting the inaccurate conviction, the finder of fact would
have been faced with a different presentation of criminal history, and the sentence could
have been reduced accordingly."


       After summarily denying the Murdock-based motion to convert the sentence, the
district court held a hearing regarding Kingsley's criminal history. The court permitted
Kingsley to produce exhibits showing the PSI was incorrect and made "the finding that
what [Kingsley] is attempting to establish factually is in fact the truth." The court ordered
that Kingsley's criminal history in the Florida case "shall not reflect a robbery allegation
or conviction," but it concluded the change in criminal history would not affect the
sentence. The court decided that resentencing was unnecessary because "[a]n illegal
sentence was not created by this error." Kingsley appealed.


       Jurisdiction is proper. See K.S.A. 2016 Supp. 22-3601(b)(2), (3) (Supreme Court
has jurisdiction over a case in which defendant is convicted of a class A felony, or life
sentence is imposed); State v. Sims, 294 Kan. 821, 823-24, 280 P.3d 780 (2012)
(Supreme Court has jurisdiction over motion to correct an illegal sentence filed in a case
in which defendant received a life sentence).


                                  NO ILLEGAL SENTENCE


       Kingsley first argues his sentence is illegal "because a sentencing court acting
based on an honest, but mistaken, belief about the law or the facts in a particular


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sentencing situation, gives rise to the requirement of new sentencing." He cites no
authority for this proposition.


       Whether a sentence is illegal is a question of law over which this court has
unlimited review. An "illegal sentence" under K.S.A. 22-3504 is one that (1) is imposed
by a court without jurisdiction; (2) does not conform to the applicable statutory provision,
either in character or the term of authorized punishment; or (3) is ambiguous with respect
to the time and manner it is to be served. State v. Gilbert, 299 Kan. 797, 801, 326 P.3d
1060 (2014).


       Kingsley's claim that his sentencing could have been swayed by the sentencing
court's beliefs—mistaken or otherwise—about the Florida conviction is belied by statutes
under which the sentence was imposed. The hard 40 sentencing statute as it existed at the
time of Kingsley's crimes provided:


               "If, by unanimous vote, the jury finds beyond a reasonable doubt that one or
       more of the aggravating circumstances enumerated in K.S.A. 21-4625 . . . exist and,
       further, that the existence of such aggravating circumstances is not outweighed by any
       mitigating circumstances which are found to exist, the defendant shall be sentenced
       pursuant to K.S.A. 21-4628 . . . otherwise, the defendant shall be sentenced as provided
       by law." (Emphasis added.) K.S.A. 1991 Supp. 21-4624(5).


       The statute further provides:


               "Notwithstanding the verdict of the jury, the trial court shall review any jury
       verdict imposing a mandatory term of imprisonment hereunder to ascertain whether the
       imposition of such sentence is supported by the evidence. If the court determines that the
       imposition of such a sentence is not supported by the evidence, the court shall modify the
       sentence and sentence the defendant as otherwise provided by law, and no mandatory
       term of imprisonment shall be imposed hereunder." K.S.A. 1991 Supp. 21-4624(6).
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       If there is sufficient evidence to support the jury verdict, K.S.A. 1991 Supp. 21-
4628 states:


               "When it is provided by law that a person shall be sentenced pursuant to this
       section, such person shall be sentenced to imprisonment for life and shall not be eligible
       for probation or suspension, modification or reduction of sentence. In addition, a person
       sentenced pursuant to this section shall not be eligible for parole prior to serving 40
       years' imprisonment . . . ." (Emphasis added.)


       As is plainly seen, upon finding the jury's verdict was supported by the evidence,
the sentencing court was required to impose the hard 40 sentence. See K.S.A. 1991 Supp.
21-4624(6).


       In an analogous circumstance, this court has held that a motion to correct an illegal
sentence cannot be used as a vehicle to assert claims that the trial court erred in
performing the balancing of aggravating and mitigating circumstances that is a
prerequisite to imposing a hard 40 sentence. See State v. Peirano, 289 Kan. 805, 806-07,
217 P.3d 23 (2009) (district court's failure to make on-the-record finding that aggravating
circumstances were not outweighed by mitigating circumstances did not render hard 40
sentence illegal). The Peirano court reasoned:


       "The sentence itself was authorized by a valid statute, both as to its character and its term,
       and the sentence was not ambiguous with respect to the time and manner in which it was
       to be served. The sentence was therefore not illegal under the limited terms of K.S.A. 22-
       3504." 289 Kan. at 807.


       Kingsley challenges only the procedures the district court employed in imposing
the hard 40 sentence. And he concedes the sentence itself was "a valid option and legal

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sentence that could be imposed on [him] at the time of his conviction." In other words,
Kingsley's challenge is limited to the district court's execution of procedures not relevant
to the hard 40 sentencing determination.


       Kingsley argues the sentencing court's mistaken view of his criminal history
renders his sentence illegal. But this claim is inapplicable under the sentencing statutes in
place at the time of Kingsley's crime. Today, when a guidelines sentence is imposed
under the KSGA, a "challenge to [a] criminal history score is necessarily a challenge to
[a] sentence that the history score helped produce. If the history score is incorrect, it
follows that [the] resulting sentence cannot conform with the statutory provision in the
term of the punishment authorized." State v. Neal, 292 Kan. 625, 631, 258 P.3d 365
(2011). The reason for this is that guidelines sentences "are generally based upon two
factors: the crime severity ranking of the current crime of conviction and the criminal
history classification of the defendant." 292 Kan. at 631. The hard 40 sentencing
determination in Kingsley's case did not turn on his "criminal history classification."


       Kingsley also directs us to two cases involving direct appeals from sentences
imposed under the KSGA: State v. Garcia, 274 Kan. 708, 56 P.3d 797 (2002), and State
v. Peterson, 25 Kan. App. 2d 354, 964 P.2d 695 (1998). But these cases are inapposite to
his illegal sentence claim. Garcia stands for the proposition that, when a district court
applies a KSGA provision that permits prison sentence instead of probation for certain
gang related conducts, the court must make "findings on the record consistent with those
outlined in [the statute]." 274 Kan. at 717. Peterson stands for the proposition that when a
district court fails to state on the record its reasons for imposing a KSGA departure
sentence, it is not prohibited from imposing the same sentence on remand so long as it
cites "appropriate reasons justifying the imposition of a departure sentence." 25 Kan.
App. 2d at 358.


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       Kingsley's hard 40 sentence conforms to the then-controlling statutory provision.
It is not an illegal sentence.


                             IMPROPER CONSTITUTIONAL CLAIM


       Kingsley next argues "because of the erroneous information in the [PSI] report,
[he] was denied his right to Due Process." But this argument is without merit in the
context of this appeal, which is from the denial of his motions to correct an illegal
sentence. See State v. Gayden, 281 Kan. 290, 292-93, 130 P.3d 108 (2006) (holding
claim that cumulative punishments for six convictions violated Double Jeopardy Clause
of Fifth Amendment to United States Constitution cannot be properly raised in motion to
correct illegal sentence); see also State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18
(2007) (holding district court properly concluded it lacked jurisdiction under K.S.A. 22-
3504 to address constitutional challenges to sentence on grounds it violated double
jeopardy, equal protection, and Eighth Amendment). But see State v. Dickey, 305 Kan.
217, 221-22, 380 P.3d 230 (2016) (holding misclassification of criminal history score
based on construction of sentencing statute dictated by constitutional law could be basis
for illegal sentence claim because challenge was "to the statutory propriety of the
classification . . . albeit with a thick overlay of constitutional law").


       As we have already noted, K.S.A. 22-3504(1) "has very limited applicability."
State v. Hankins, 304 Kan. 226, 230, 372 P.3d 1124 (2016). It applies only to three types
of sentences: one "imposed by a court without jurisdiction," one that "does not conform
to the statutory provision," or one that "is ambiguous with regard to the time and manner
in which it is to be served." 304 Kan. at 230.


       A sentence imposed based on a claim that the sentencing court's misinterpretation
of the offender's criminal history violated due process is not one of the three types of
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sentences that may be corrected at any time through a K.S.A. 22-3504 motion. See
Hankins, 304 Kan. at 230-31 (holding a motion to correct illegal sentence could not be
used to litigate a claimed due process violation arising from application of invited error
doctrine to bar appellate review of error in calculating criminal history score). Kingsley
does not claim the district court lacked jurisdiction to impose the sentence or that the
sentence is ambiguous, and his "claim that a sentence fails to conform to constitutional
requirements is not a claim [that] it fails to conform to statutory requirements." Gayden,
281 Kan. at 293.


       Kingsley's due process claim is not cognizable in a motion to correct an illegal
sentence.


       Affirmed.




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