Bryon J. Kirtdoll, Appellant,
State of Kansas, Appellee.
BY THE COURT
rule of law declared in Alleyne v. United States,
570 U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), holding
that a criminal defendant's right to a jury trial under
the Sixth Amendment to the United States Constitution
requires that any fact which increases a sentence beyond the
mandatory minimum must be submitted to a jury and proven
beyond a reasonable doubt, cannot be applied retroactively to
invalidate a sentence that was final when the
Alleyne decision was released.
a K.S.A. 60-1507 motion filed in a case that was final when
Alleyne v. United States, 570 U.S. ___, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013), was decided, the change in the
law effected in Alleyne cannot provide the
exceptional circumstances required to permit a successive
motion or demonstrate the manifest injustice necessary to
permit an untimely motion.
from Shawnee District Court; Cheryl Rios, judge. Opinion
filed May 12, 2017. Affirmed.
Renner, of Renner Law Office, of Topeka, was on the brief for
Litfin, assistant district attorney, Chadwick J. Taylor,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
Kirtdoll 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 unconstitutional, and therefore
illegal. In addition to rejecting Kirtdoll's
illegality-of-sentence challenge, the district court analyzed
whether the holding in Alleyne could be
retroactively applied to Kirtdoll by construing his pleading
as a K.S.A. 60-1507 motion. Using the prospective-only
application of Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as an analogy, the
district court held that Alleyne could not be
retroactively applied and, consequently, Kirtdoll could not
obtain relief in a 60-1507 collateral attack. We affirm the
denial of postconviction relief.
and Procedural Overview
was convicted in 2004 of first-degree murder and sentenced to
an imprisonment term of life without possibility of parole
for 50 years (hard 50 life sentence). His conviction and
sentence were affirmed on direct appeal, where one of the
issues he raised was a constitutional challenge to the hard
50 life sentence based on Apprendi. State v.
Kirtdoll, 281 Kan. 1138, 1151, 136 P.3d 417 (2006).
K.S.A. 60-1507 motions followed, one filed in 2007 and
another in 2010. Both were denied by the district court and
affirmed by the Kansas Court of Appeals. Kirtdoll v.
State, No. 100, 880, 2009 WL 2766290 (Kan. App. 2009)
(unpublished opinion), rev. denied 290 Kan. 1094
(2010); Kirtdoll v. State, No. 107, 385, 2013 WL
517812 (Kan. App.) (unpublished opinion), rev.
denied 297 Kan. 1246 (2013).
current action began when, in 2013, Kirtdoll filed a pro se
"Motion to Vacate Sentence, " which appeared to be
a motion to correct an illegal sentence. After hearing
arguments, the district court dismissed Kirtdoll's
motion. In a comprehensive written memorandum and order, the
district court analyzed the merits of Kirtdoll's motion
under both K.S.A. 22-3504 (correction of illegal sentence)
and K.S.A. 60-1507 (postconviction collateral attack of
issued before this court's decision in State v.
Moncla, 301 Kan. 549, 343 P.3d 1161 (2015), the district
court reached the same conclusion regarding K.S.A. 22-3504.
Specifically, the district court held that Kirtdoll's
claim that his sentence was the product of an
unconstitutional sentencing scheme did not fit the narrow
definition of an illegal sentence for K.S.A. 22-3504
purposes, and, therefore, a motion to correct an illegal
sentence could not be used to obtain the relief he sought.
district court then, on its own, analyzed Kirtdoll's pro
se motion as if it were being filed under K.S.A. 60-1507. The
district court adopted the reasoning of the Kansas Court of
Appeals panel in Verge v. State, 50 Kan.App.2d 591,
335 P.3d 679 (2014), rev. denied302 Kan. 1022
(2015). Verge analogized Alleyne to
Apprendi, which is not retroactively applicable to a
defendant through a collateral attack pursuant to K.S.A.
60-1507. 50 Kan.App.2d at 593-94. Accordingly, the panel held
that Alleyne cannot be retroactively applicable to
cases that were final when the decision was released. 50
Kan.App.2d at 598. Therefore, because Alleyne did
not apply to Kirtdoll, the district court did ...