                  IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 116,408

                                      STATE OF KANSAS,
                                          Appellee,

                                               v.

                                   WILLIAM D. ALBRIGHT,
                                        Appellant.


                               SYLLABUS BY THE COURT

1.
       Because the definition of an illegal sentence does not include a claim that the
sentence violates a constitutional provision, a party 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 v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013).


2.
       The change in the law effected by Alleyne v. United States, 570 U.S. 99, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013), cannot provide the manifest injustice necessary to
excuse the untimeliness of a 60-1507 motion.


3.
        The change in the law effected by Alleyne v. United States, 570 U.S. 99, 133 S.
Ct. 2151, 186 L. Ed. 2d 314 (2013), cannot be applied retroactively to cases that were
final when Alleyne was decided.


       Appeal from Kingman District Court; LARRY T. SOLOMON, judge. Opinion filed February 2,
2018. Affirmed.
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        Christina M. Kerls, of Kansas Appellate Defender Office, was on the brief for appellant.


        Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were on the
brief for appellee.


The opinion of the court was delivered by


        ROSEN, J.: William Albright appeals the district court's denial of his "motion for
resentencing." In his motion, Albright argued that Alleyne v. United States, 570 U.S. 99,
133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), renders his hard 40 sentence unconstitutional.
The district court construed Albright's "motion for resentencing" as a collateral challenge
under K.S.A. 60-1507 and concluded that Albright was not entitled to relief because
Alleyne cannot be applied retroactively to a sentence that was final when Alleyne was
decided. We affirm.


                           FACTUAL AND PROCEDURAL BACKGROUND

        On March 11, 1999, a jury convicted Albright of first-degree murder. The district
court sentenced Albright to life in prison with no possibility of parole for 40 years. On
June 1, 2001, this court affirmed that sentence. State v. Albright, 271 Kan. 546, 24 P.3d
103 (2001).


        On March 25, 2002, Albright filed a K.S.A. 60-1507 motion alleging ineffective
assistance of trial counsel. The district court denied the motion, but the Court of Appeals
reversed and remanded Albright's case for a new trial. State v. Albright, No. 90,216, 2004
WL 1041350 (Kan. App.) (unpublished opinion), rev. denied 278 Kan. 843 (2004). At the
second trial, a jury again convicted Albright of first-degree murder.


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       After Albright was convicted at the second trial, but before sentencing, Albright
filed a motion to find the hard 40 sentencing scheme unconstitutional under Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). On March 28,
2005, the district court denied the motion and again sentenced Albright to life in prison
with no possibility of parole for 40 years. The hard 40 was imposed as a result of judicial
fact-finding. Albright's seemingly clairvoyant talents did not result in relief. On March
16, 2007, this court affirmed Albright's conviction and sentence after observing that
judicial fact-finding does not bring the imposition of a hard 40 sentence into conflict with
Apprendi. State v. Albright, 283 Kan. 418, 425, 153 P.3d 497 (2007).


       On March 10, 2016, Albright filed a "motion for resentencing on a Hard 40
Sentence" asserting that his sentence was unconstitutional pursuant to Alleyne v. United
States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). The district court denied
relief. Albright appealed to this court. On appeal, Albright argues that, under Alleyne, his
hard 40 life sentence is unconstitutional because it is the result of judicial fact-finding.


                                          ANALYSIS


       In his "motion for resentencing," Albright argued to the district court that his
sentence was unconstitutional under Alleyne. The State contended there was no legal
authority for Albright's "motion for resentencing," and the district court therefore should
construe it as a motion to correct an illegal sentence. Because Albright challenged his
sentence on constitutional grounds, and this court has held that a motion to correct an
illegal sentence is an improper vehicle for challenging the constitutionality of a sentence,
the State argued that Albright's motion should be dismissed.


       The district court instead opted to view Albright's motion as a collateral challenge
to his sentence and reach the merits of Albright's claims. The district court then
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concluded that Albright was not entitled to relief because in Verge v. State, 50 Kan. App.
2d 591, 335 P.3d 679 (2014), the Court of Appeals conclusively decided the issue when it
held that Alleyne cannot be applied retroactively.


          On appeal, Albright argues that the district court was correct when it construed his
motion as a collateral attack under K.S.A. 60-1507(b). However, Albright contends that
the district court should have granted his motion because, under Alleyne, his sentence is
unconstitutional. He contends that the Kansas Court of Appeals cases that have held
otherwise were wrongly decided.


          The State responds that, whether Albright's motion was viewed "as either a motion
to correct an illegal sentence under K.S.A. 22-3504, or as a motion for post-conviction
relief under K.S.A. 60-1507," the district court should have dismissed his claim on
procedural grounds. In the alternative, the State argues that Albright is not entitled to
relief because this court held in Kirtdoll v. State, 306 Kan. 335, 393 P.3d 1053 (2017),
that Alleyne does not apply retroactively.


          We conclude that, whether Albright's pleading is construed as a motion to correct
an illegal sentence, or a collateral attack under K.S.A. 60-1507(b), he is not entitled to
relief.


          This appeal concerns whether the district court correctly construed Albright's pro
se pleading, whether it correctly interpreted statutory provisions, and whether it erred
when it denied postconviction relief based on the legal conclusion that a change in law
did not apply retroactively. Therefore, our review is de novo. See State v. Gilbert, 299
Kan. 797, 802, 326 P.3d 1060 (2014) ("Whether the district court correctly construed a
pro se pleading is a question of law subject to unlimited review."); State v. Eddy, 299
Kan. 29, 32, 321 P.3d 12 (2014) (interpretation of a statute is a question of law over
                                                4
which appellate courts have unlimited review); State v. Adams, 297 Kan. 665, 669, 304
P.3d 311 (2013) (legal conclusions regarding K.S.A. 60-1507 motion are reviewed de
novo).


         K.S.A. 2017 Supp. 22-3405 provides that an illegal sentence is one that is imposed
by a court without jurisdiction, does not conform to the statutory provision, or is
ambiguous with respect to the time and manner in which it is to be served. Recently, in
State v. Brown, 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." 306 Kan. 330, 332, 393 P.3d 1049 (2017).


         K.S.A. 60-1507 provides an avenue for a prisoner to collaterally attack his or her
sentence. However, K.S.A. 60-1507(f) requires that any action under the statute be
brought within one year and allows for an extension of the time limitation only "to
prevent manifest injustice." K.S.A. 60-1507(f)(2). We recently held that "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." Kirtdoll, 306 Kan. at 341.


         Whether the district court correctly construed Albright's pleading as collateral
attack, or whether it should have characterized it as a motion to correct an illegal sentence
is of no consequence. Either way, Albright is not entitled to relief. Because Albright
challenges the constitutionality of his sentence, a motion to correct an illegal sentence
cannot provide the relief he seeks. Because he filed the pleading well after the one-year
time limitation and an Alleyne-based challenge does not satisfy the manifest injustice
exception, Albright cannot collaterally attack his sentence under K.S.A. 60-1507.


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       Finally, we note that, even if we were to reach the merits of Albright's claim, he
would still not be entitled to relief. We recently concluded that Alleyne cannot be applied
retroactively to cases that were final when Alleyne was decided. Kirtdoll, 306 Kan. at
341.


       Albright was sentenced on March 28, 2005. His case was final when this court
affirmed that sentence on March 16, 2007. Alleyne was decided in 2013. Therefore,
Alleyne does not render Albright's sentence unconstitutional.


       The judgment of the district court is affirmed.




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