BY THE COURT
claim that a sentence was imposed in violation of the
constitutional holding in Alleyne v. United States,
570 U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), does
not fit within the definition of an illegal sentence that may
be addressed with a K.S.A. 22-3504(1) motion to correct an
K.S.A. 2013 Supp. 21-6620(d)(2) excludes convictions and
sentences that were final prior to June 17, 2013, from that
statute's hard 50 sentencing procedures, except for those
cases in which the conviction or sentence is subsequently
vacated in a collateral proceeding for some reason unrelated
to the provisions of K.S.A. 2013 Supp. 21-6620(d)(2). This
statute, K.S.A. 2013 Supp. 21-6620(d)(2), does not provide an
independent reason to correct a hard 50 life sentence that
was final prior to June 17, 2013.
from Wyandotte District Court; R. Wayne Lampson, judge.
Opinion filed May 12, 2017. Judgment of the district court is
E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, was on
the brief for appellant.
L. Lidtke, chief deputy district attorney, Jerome A. Gorman,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
Brown appeals the district court's denial of his motion
to correct an illegal sentence, in which he argued that
Alleyne v. United States, 570 U.S. ___, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013), renders his judicially enhanced
life sentence illegal. The district court rejected
Brown's argument that K.S.A. 2013 Supp. 21-6620 mandates
retroactive application of Alleyne and accordingly
denied postconviction relief. We affirm.
and Procedural Overview
was convicted in 1999 of first-degree murder and sentenced to
an imprisonment term of life without possibility of parole
for 40 years (hard 40 life sentence). His conviction and
sentence were affirmed on direct appeal. State v.
Brown, 272 Kan. 809, 822, 37 P.3d 31 (2001).
has previously mounted two collateral attacks on his
conviction or sentence: a K.S.A. 60-1507 motion, which was
denied in 2004, and a K.S.A. 22-3504 motion to correct an
illegal sentence, which was denied in 2011. Brown v.
State, No. 90, 900, 2004 WL 2694255 (Kan. App. 2004)
(unpublished opinion), rev. denied 279 Kan. 1005
(2005); State v. Brown, No. 101, 275, 2011 WL
1344637 (Kan. App. 2011) (unpublished opinion). Brown has
also unsuccessfully sought habeas relief in the United States
District Court on two occasions. Brown v. McKune,
No. 05-3437-SAC, 2006 WL 2037394 (D. Kan. 2006) (unpublished
opinion); Brown v. McKune, No. 11-3147-SAC, 2013 WL
823317 (D. Kan. 2013) (unpublished opinion), appeal
dismissed 517 Fed.Appx. 623 (10th Cir. 2013)
current action began in 2013 when Brown filed a pro se K.S.A.
22-3504 motion to correct an illegal sentence. After
appointing counsel and hearing arguments, the district court
denied relief under K.S.A. 22-3504, finding that
Alleyne did not apply retroactively to cases that
were final when it was decided.
Application of Alleyne ...