Appeal from Johnson district court; STEVE LEBEN, judge.
1. An appellate court exercises de novo review over the determination of whether a sentence is illegal within the meaning of K.S.A. 22-3504.
2. Because the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision, a defendant may not file a motion to correct an illegal sentence based on constitutional challenges to his or her sentence.
3. Simply raising a point without any supporting argument or authority is the equivalent of failing to brief an issue. When an appellant fails to brief an issue, the issue is deemed waived.
4. Construing K.S.A. 21-4504(b) in harmony with K.S.A. 21-4608 leads to the conclusion that both of these statutes address different components of the sentencing scheme and both statutes apply to enhanced sentences for habitual offenders.
5. A second or successive K.S.A. 60-1507 motion may be dismissed as an abuse of remedy unless the defendant establishes exceptional circumstances for the subsequent motion. Exceptional circumstances are unusual events or intervening changes in the law that prevented the defendant from raising the issue in a preceding 60-1507 motion.
6. K.S.A. 60-1507 motions are time-barred if filed more than 1 year after the final order from the last appellate court to exercise jurisdiction over the defendant's direct appeal, the termination of appellate jurisdiction, or the denial or a writ of certiorari by the United States Supreme Court unless the movant can establish manifest injustice.
The opinion of the court was delivered by: Rosen, J.
Robert E. Mitchell appeals the dismissal of his pro se motion to correct an illegal sentence. In 1988, Mitchell was convicted of aggravated kidnapping, aggravated burglary, rape, and two counts of aggravated sodomy. Because Mitchell had been convicted of three prior felonies, the district court sentenced him as a habitual offender pursuant to K.S.A. 21-4504(b) (Ensley 1988). The district court sentenced Mitchell to serve a term of life imprisonment for the aggravated kidnapping count; a term of 45 years to life in prison for each of the rape and aggravated sodomy counts; and a term of 15-60 years in prison for the aggravated battery count. The district court ordered the sentences for the aggravated kidnapping and aggravated battery counts to run consecutively and ordered the rape and aggravated sodomy counts to run concurrent with one another but consecutive to the sentences for aggravated kidnapping and aggravated burglary, giving Mitchell a controlling sentence of a minimum of life plus 60 years and a maximum of two life sentences plus 60 years.
This court upheld Mitchell's convictions and sentences in his direct appeal. State v. Mitchell, No. 62,234, unpublished opinion filed December 8, 1989. Mitchell filed a K.S.A. 60-1507 motion in August 1996, alleging ineffective assistance of counsel. Following an evidentiary hearing, the district court denied Mitchell's 60-1507 motion, and the Court of Appeals affirmed the district court's decision. Mitchell v. State, No. 87,218, unpublished opinion filed December 27, 2002.
On August 29, 2004, Mitchell filed a motion to correct an illegal sentence pursuant to K.S.A. 22-3504. The district court dismissed the motion without a hearing, concluding there were no substantial issues of law or fact. The district court ruled that it lacked jurisdiction to address Mitchell's claims because they did not fit the definition of an illegal sentence. The district court further concluded that it could not consider Mitchell's motion as a 60-1507 motion because it was time-barred. Mitchell filed a timely pro se notice of appeal. Mitchell's appeal was initially docketed with the Court of Appeals. However, the State filed a motion to transfer, recognizing that the case had been misdocketed with the Court of Appeals because it involved a life sentence. The matter was then transferred to this court pursuant to K.S.A. 20-3018(c).
Mitchell argues that his sentence is illegal because it violates his state and federal constitutional rights. Specifically, Mitchell argues that his sentences violate double jeopardy, equal protection, and the Eighth Amendment to the United States Constitution. In addition, Mitchell argues that his sentences are illegal because K.S.A. 21-4504 (Ensley 1988) does not authorize consecutive sentences. Finally, Mitchell asserts that this court has jurisdiction to address ...