                 IN THE SUPREME COURT OF THE STATE OF KANSAS


                                              No. 117,341

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                          TERRY RAY HAYES,
                                              Appellant.


                                   SYLLABUS BY THE COURT

        Because the 2013 amendments to the sentencing provisions of K.S.A. 21-6620 are
procedural in nature and do not change the legal consequences of acts completed before
its effective date, the retroactive application of those sentencing procedures do not violate
the Ex Post Facto Clause of Article I, § 10 of the United States Constitution.


        Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed November
30, 2018. Affirmed.


        Christina M. Kerls, of Kansas Appellate Defender Office, was on the brief for appellant.


        Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.


        PER CURIAM: A jury convicted Terry Ray Hayes of first-degree premeditated
murder, and the sentencing judge imposed the enhanced sentence of life without the
possibility of parole for 50 years (hard 50 sentence). On direct appeal, this court affirmed
Hayes' murder conviction but vacated the hard 50 sentence because Kansas' statutory
scheme for imposing the enhanced sentence violated Hayes' right to a jury trial under the
Sixth Amendment to the United States Constitution. State v. Hayes, 299 Kan. 861, 327

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P.3d 414 (2014). Upon remand, the district court applied intervening curative legislation,
now codified at K.S.A. 2017 Supp. 21-6620, to again impose a hard 50 sentence. Hayes
now appeals that new hard 50 sentence, claiming the district court's retroactive
application of K.S.A. 2017 Supp. 21-6620 violated the prohibition on ex post facto laws.
In accord with our recent holdings, we affirm Hayes' hard 50 sentence.


                         FACTUAL AND PROCEDURAL OVERVIEW


       In 2011, a jury convicted Terry Hayes of premeditated first-degree murder for the
August 5, 2010 shooting death of his estranged wife. At that time, the default sentence for
premeditated first-degree murder was life without possibility of parole for 25 years (hard
25). See K.S.A. 21-4706(c); K.S.A. 2010 Supp. 22-3717(b)(1). The sentence could be
enhanced to a hard 50 sentence if the sentencing judge found, by a preponderance of the
evidence, that one or more aggravating factors existed and that the aggravators were not
outweighed by mitigating circumstances. K.S.A. 21-4635.


       Hayes' sentencing judge employed the statutory procedure to impose a hard 50
sentence, after finding Hayes had committed the murder in an especially heinous,
atrocious, or cruel manner and the aggravated circumstance was not outweighed by any
mitigating factors. Hayes appealed that hard 50 sentence.


       While Hayes' first appeal was pending, the United States Supreme Court issued its
opinion in Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013). Alleyne held that the facts a sentencing court relies upon to increase an offense's
mandatory minimum sentence are elements of that enhanced offense. As such, those
sentence-enhancing facts must be proved to a jury beyond a reasonable doubt to avoid a
violation of the defendant's Sixth Amendment right to jury trial. 570 U.S. at 114-15.
Subsequently, in State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014), this court held
that in light of Alleyne's holding, K.S.A. 21-4635's procedure for imposing a hard 50

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sentence violates the Sixth Amendment by permitting a judge to make the fact-finding
necessary to impose an increased mandatory minimum sentence, rather than requiring a
jury to find the existence of aggravating factors beyond a reasonable doubt.


       In resolving Hayes' initial appeal, this court affirmed Hayes' murder conviction but
held that under Alleyne and Soto, Hayes' hard 50 sentence was imposed in violation of his
Sixth Amendment right to a jury trial. Accordingly, this court vacated the hard 50
sentence and remanded the case for resentencing. Hayes, 299 Kan. at 868.


       On remand, the State gave notice of its intent to pursue a hard 50 sentence again
pursuant to the retroactive application provisions of K.S.A. 2017 Supp. 21-6620, which
the Legislature amended in 2013 to alter the procedure for imposing a hard 50 sentence
and bring it in line with the holding in Alleyne. See L. 2013, ch. 1, § 1 (Special Session).
The amended statute requires that, before a hard 50 sentence may be imposed, a jury
must find beyond a reasonable doubt that at least one aggravating circumstance exists and
that the aggravating circumstance(s) are not outweighed by any mitigating circumstances.


       Hayes filed a motion asking the district court to find that retroactive application of
the 2013 amendments to K.S.A. 21-6620 violates the Ex Post Facto Clause of the United
States Constitution. See U.S. Const. art. I, § 10. Following a hearing, the district court
denied Hayes' motion. Hayes subsequently waived his right to have a jury make any
findings of aggravating and mitigating circumstances and instead tried the hard 50 issue
to the district court judge on stipulated evidence with the understanding that Hayes
retained his right to appeal the district court's ruling on the ex post facto issue.


       The district court found that the State proved beyond a reasonable doubt that two
aggravating circumstances were established and that the established aggravating
circumstances were not outweighed by any mitigating circumstances. The district court
then imposed a hard 50 sentence for Hayes' murder conviction. Hayes timely appealed

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the district court's determination that it could retroactively apply the hard 50 sentencing
procedures of K.S.A. 2017 Supp. 21-6620.


           RETROACTIVE APPLICATION OF 2013 AMENDMENTS TO K.S.A. 21-6620


       As noted, Hayes committed the murder in 2010, but he was sentenced under the
procedures established by the Legislature in 2013. Citing to State v. Williams, 291 Kan.
554, 560, 244 P.3d 667 (2010), overruled on other grounds by State v. Keel, 302 Kan.
560, 357 P.3d 251 (2015), Hayes points out that it is a "fundamental rule" that a
defendant must be sentenced "in accordance with the penalty provisions in effect at the
time the crime was committed." He argues that his resentencing violated that rule and
resulted in a violation of the prohibition against ex post facto laws.


Standard of Review


       "This court reviews questions of both statutory and constitutional law de novo."
State v. Bernhardt, 304 Kan. 460, 478, 372 P.3d 1161 (2016).


Analysis


       Article I, § 10 of the United States Constitution prohibits, inter alia, any state from
passing an ex post facto law, i.e., a law that changes the legal consequences of acts
completed before the law's effective date. See State v. Prine, 297 Kan. 460, 470, 303 P.3d
662 (2013) (crucial question in evaluating ex post facto claim is whether the law changes
legal consequences of acts completed before effective date of law). This court has applied
United States Supreme Court precedent to interpret the prohibition in the Ex Post Facto
Clause as requiring two elements: "'(1) The law must be retrospective, applying to events
occurring before its enactment, and (2) it must alter the definition of criminal conduct or


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increase the penalty by which a crime is punishable.' [Citations omitted.]" Bernhardt, 304
Kan. at 479.


       Hayes argues that the Legislature's fix of the hard 50 sentencing procedure after
Alleyne effectively changed the elements of the murder charge on which he was
convicted, thereby creating a new definition of the crime he had already committed.
Therefore, he claims, retrospective application of the provisions of K.S.A. 2017 Supp.
21-6620 to his resentencing violated the Ex Post Facto Clause of our federal Constitution.


       The disconnect in Hayes' argument is characterizing the changes effected by
K.S.A. 2017 Supp. 21-6620 as substantive, i.e., as changing the definition of the
enhanced version of premeditated murder. That substantive characterization is critical to
Hayes' argument because we have specifically declared that


               "[a] merely procedural law does not 'change[] the legal consequences of acts
       completed before its effective date' and therefore does not violate the Ex Post Facto
       Clause when applied retroactively. See [State v. Todd,] 299 Kan. at 278 (citing Collins v.
       Youngblood, 497 U.S. 37, 49-50, 110 S. Ct. 2715, 111 L. Ed. 2d 30 [1990]); see also
       Dobbert v. Florida, 432 U.S. 282, 293, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977) ('Even
       though it may work to the disadvantage of a defendant, a procedural change is not ex post
       facto.')." Bernhardt, 304 Kan. at 480.


       Hayes acknowledges that Bernhardt clearly held that the retroactive application of
K.S.A. 2015 Supp. 21-6620's sentencing procedure does not violate the Ex Post Facto
Clause. The rationale for that holding is that the retroactively applied statute only
changed the procedure by which the hard 50 sentence is imposed; it did not change the
definition of the criminal conduct involved or increase the minimum penalty. Hayes notes
that the only factual distinction in Bernhardt was that it involved an initial sentencing
rather than the resentencing upon remand presented here. But Hayes does not argue that
the factual distinction is legally significant, and we discern that it is not.

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       Hayes' tack is to ask us to reconsider—and, obviously, to change—our ruling in
Bernhardt. He urges us to find that K.S.A. 2013 Supp. 21-6620 added uncharged
elements to his crime of conviction. His argument is that, prior to Alleyne, our courts did
not realize that the aggravating factors required to elevate a conviction to a hard 50
sentence were actually elements of the crime that needed to be proved to a jury beyond a
reasonable doubt. Consequently, he suggests that the new statutory procedure for a jury
to find the hard 50 aggravating factors effectively transformed those aggravators into
elements of the crime, thereby changing the definition of the crime.


       In each year since deciding Bernhardt, this court has followed its holding that
K.S.A. 2017 Supp. 21-6620 can be constitutionally applied retroactively. See State v.
Lloyd, 308 Kan. 735, 742, 423 P.3d 517 (2018); State v. Robinson, 306 Kan. 431, 444,
394 P.3d 868 (2017). Pointedly, Lloyd also asked us to reconsider Bernhardt based on
the exact legal arguments now asserted by Hayes. Indeed, Hayes' brief employs nearly
identical language to that submitted by Lloyd's brief. We summarily rejected Lloyd's
invitation to revisit Bernhardt based upon that creative, yet analytically flawed,
argument. Lloyd, 308 Kan. at 742.


       As we explained in Bernhardt, "it was not the hard 50 sentence, or the aggravating
and mitigating factors used to determine its application, that the district judge held—and
this court would later hold—unconstitutional; rather, it was the procedure for imposing
the hard 50." 304 Kan. at 480. Hayes faced a minimum 50-year term of imprisonment
when he committed the murder; that term was not retroactively increased. Moreover,
regardless of whether one labels the hard 50 aggravating factors as sentence enhancers or
elements, the 2013 amendments to K.S.A. 21-6620 did not change the description or
definition of those aggravating factors. Likewise, it did not change the fact that a
condition precedent to a hard 50 sentence is the State proving one or more aggravating
factors that are not outweighed by mitigating circumstances. In other words, what the

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State had to prove to effect a hard 50 sentence did not change; only the manner in which
the State had to prove it changed.


       In short, we decline to reverse our holdings in Bernhardt, Robinson, and Lloyd.
The retroactive application of the hard 50 sentencing procedures in K.S.A. 2017 Supp.
21-6620 to Hayes' resentencing did not violate the Ex Post Facto Clause. The resentence
is affirmed.


       Affirmed.




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