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State v. Allison

Supreme Court of Kansas

April 7, 2017

State of Kansas, Appellee,
v.
Christopher J. Allison, Appellant.

         SYLLABUS BY THE COURT

         A sentence that conforms to the applicable statutory provision in both character and term of authorized punishment is not illegal.

         Appeal from Cowley District Court; John E. Sanders, judge.

          David R. Maslen, of Mason, Velasquez & Maslen, P.A., of Arkansas City, was on the brief for appellant.

          Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          BEIER, J.

         Defendant Christopher J. Allison appeals the district court judge's denial of his motion to correct what he argues is his illegal hard 40 life sentence.

         In 1993, a jury convicted Allison of first-degree premeditated murder, conspiracy to commit first-degree murder, and terroristic threat. During the sentencing portion of the trial, the jury found that the evidence established the aggravating circumstance that Allison had committed the first-degree murder in order to avoid or prevent a lawful arrest or prosecution. The jury also found that the aggravating circumstance outweighed the mitigating circumstances. Based on the findings, the jury unanimously determined that a life sentence without the possibility of parole for 40 years should be imposed by the court. The life sentence was to be consecutive to a term of 22 to 85 years, the aggregate sentence for Allison's other jury convictions and convictions following pleas.

         We affirmed Allison's convictions and sentence on direct appeal on January 26, 1996, in State v. Allison, 259 Kan. 25, 910 P.2d 817 (1996). Allison raised four issues:

"(1) the district court erred in instructing the jury concerning the testimony of a witness who receives benefits from the State; (2) the State's service of notice of intent to seek the hard-40 sentence under K.S.A. 1992 Supp. 21-4624(1) was not proper; (3) the district court erred in admitting as rebuttal, the testimony of the attorney who represented an accomplice in plea bargain negotiations; and (4) [Allison] did not receive a fair trial because of cumulative error." 259 Kan. at 26.

Each of these arguments was rejected. 259 Kan. at 26.

         In September 2014, Allison filed a pro se motion to correct illegal sentence. In the motion, he argued the district judge did not follow the procedures of K.S.A. 1993 Supp. 21-4724(f) to sentence him for his pre-July 1, 1993 crimes; the sentences for which he had been on parole at the time of his convictions in this case were eligible for conversion to the Kansas Sentencing Guidelines Act under K.S.A. 1993 Supp. 21-4724(b)(2); his hard 40 sentence did not conform to the statutory provisions of K.S.A. 1993 Supp. 21-4624(5); his hard 40 sentence did not conform to the statutory provisions of K.S.A. 1993 Supp. 21-4624(2) and (4); and, finally, his sentence did not conform to the requirements of K.S.A. 1993 Supp. 21-4624(5).

         In November 2014, the district court appointed counsel for Allison. The next month, after a hearing, Senior Judge John E. Sanders filed a journal entry stating that the parties had agreed that there were no evidentiary issues and that resolution of Allison's motion involved purely legal questions. Judge Sanders ordered Allison's counsel to file an amended motion and brief.

         On January 20, 2015, Allison's counsel filed an amended motion and accompanying brief. Counsel argued that Allison's sentence was illegal because the sentencing verdict form required the jury to either unanimously agree to impose the hard 40 sentence or ...


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