Appeal from Sedgwick District Court; WARREN M. WILBERT, judge.
1. The definition of an illegal sentence under K.S.A. 22-3504 does not include a claim that two or more criminal sentences are multiplicitous.
2. The definition of an illegal sentence under K.S.A. 22-3504 does not include a claim that a criminal sentence violates a constitutional provision.
David Noyce, appellant, was on the briefs Pro se.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
David Noyce appeals the district court's summary denial of his pro se motion to correct an illegal sentence under K.S.A. 22-3504. He challenges his murder conviction as multiplicitous and for the first time on appeal argues his sentence is unconstitutional under Alleyne v. United States, 570 U.S.
__, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (sentencing scheme permitting judge to find aggravating circumstances necessary to impose increased mandatory sentence unconstitutional). We affirm.
This court has previously held that a multiplicity issue cannot be raised in a motion to correct an illegal sentence. See State v. Sims, 294 Kan. 821, Syl. ¶ 4, 280 P.3d 780 (2012) (" A claim that two or more criminal sentences are multiplicitous. .. does not come within the narrow definition of an illegal sentence under K.S.A. 22-3504." ). And even if preserved, a claim that a sentence is unconstitutional is outside the scope of K.S.A. 22-3504. State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007).
Factual and Procedural Background
In February 1999, Noyce pleaded guilty to aggravated arson, [301 Kan. 409] premeditated first-degree murder, and capital murder after setting fire to a residence. Dalene and Clifford Noyce died as a result.
The first-degree murder conviction stems from Clifford's death, and the capital murder conviction arises from killing both Dalene and Clifford as part of the same act or transaction. A plea was entered in exchange for the State's promise not to seek the death penalty. The parties agreed to recommend two consecutive life sentences with mandatory minimums of 40 years' imprisonment each (hard 40) for the murders, and a ...