BY THE COURT
that a sentence is illegal because it violates the
constitution cannot be brought via K.S.A. 22-3504(1). Nor can
a K.S.A. 22-3504(1) motion to correct an illegal sentence
serve as the procedural vehicle for attacking the
constitutionality of K.S.A. 2016 Supp. 21-6620(f), which
makes legislation enacted in response to Alleyne v.
United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d
314 (2013), inapplicable to sentences that were final before
June 17, 2013.
from Wyandotte District Court; Wesley K. Griffin, judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office,
was on the brief for appellant.
A. Gorman, district attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
2013, the Kansas Legislature held a special session in
response to the United States Supreme Court's decision in
Alleyne v. United States, 570 U.S. 99, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013), and enacted provisions
requiring jury findings before an enhanced mandatory minimum
sentence can be imposed for persons convicted of premeditated
first-degree murder. L. 2013, ch. 1 (now codified at K.S.A.
2016 Supp. 21-6620). In this appeal, Vernon J. Amos argues he
is entitled to a new sentencing hearing under this 2013
legislation even though his sentence was imposed in 1999 and
became final after exhaustion of his direct appeal in 2001.
us, Amos recognizes the Kansas Legislature provided the 2013
legislation "shall not apply to cases in which the
defendant's conviction and sentence were final prior to
June 17, 2013." K.S.A. 2016 Supp. 21-6620(f). But, for
the first time on appeal, he argues this restriction violates
the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution. Because the effect of this
attack would ultimately lead to application of the amended
provisions, Amos argues this court has jurisdiction under
K.S.A. 22-3504(1), the statute allowing the court to consider
an illegal sentence at any time.
reject Amos' argument. Although Amos couches his claim in
statutory terms in an attempt to fit his arguments within the
parameters of caselaw regarding K.S.A. 22-3504(1) motions, he
primarily complains his sentence is illegal because he has
been subjected to unequal treatment in a manner prohibited by
the constitution. This court has repeatedly held a defendant
cannot raise constitutional challenges to a sentence via a
motion to correct illegal sentence under K.S.A. 22-3504(1).
We, therefore, affirm the district court's summary denial
of Amos' motion.
and Procedural History
March 1999, a jury convicted Amos of first-degree murder and
conspiracy to commit aggravated robbery. In a separate
sentencing hearing conducted in July 1999, a district court
judge weighed certain aggravating and mitigating factors set
forth in K.S.A. 21-4636 and K.S.A. 21-4637 and sentenced Amos
to a hard 40 sentence for his first-degree murder conviction
and 120 months for his conspiracy to commit aggravated
robbery conviction. Amos appealed without raising any
sentencing issues, and this court affirmed his convictions.
State v. Amos, 271 Kan. 565, 23 P.3d 883 (2001).
Amos sought postconviction relief. He twice brought actions
under K.S.A. 60-1507; both motions were summarily dismissed
by the district court and affirmed by the Court of Appeals.
Amos v. State, No. 90, 683, 2004 WL 48887 (Kan. App.
2004); Amos v. State, No. 109, 106, 2014 WL 3731905
(Kan. App. 2014). Amos also sought federal habeas relief
without success. Amos v. Roberts, 189 Fed.Appx. 830
(10th Cir. 2006) (unpublished opinion); Amos v.
Roberts, No. 04-3138-SAC, 2006 WL 354833 (D. Kan. 2006)
current proceeding began in 2015, when Amos filed a pro se
motion to correct an illegal sentence. He primarily argued he
was entitled to relief under two cases: State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014),
overruled by State v. Keel, 302 Kan. 560, 357 P.3d
251 (2015), and State v. Dickey, 50 Kan.App.2d 468,
329 P.3d 1230 (2014), aff'd 301 Kan. 1018, 350
P.3d 1054 (2015). He also argued he was entitled to relief
under the 2013 legislation now codified at K.S.A. 2016 Supp.
21-6620. He did not raise a constitutional challenge to
21-6620(f), however, or even recognize its preclusive effect.
district court summarily denied the motion on December 15,
2015. The court's brief order addressed the legality of
the sentence but did not specifically address Amos'
attempt to invoke the legislation enacted in 2013 as a basis