the 2013 amendments to the sentencing provisions of K.S.A.
21-6620 are procedural in nature and do not change the legal
consequences of acts completed before its effective date, the
retroactive application of those sentencing procedures do not
violate the Ex Post Facto Clause of Article I, § 10 of
the United States Constitution.
from Johnson District Court; James Charles Droege, judge.
Christina M. Kerls, of Kansas Appellate Defender Office, was
on the brief for appellant.
E. Minihan, assistant district attorney, Stephen M. Howe,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
convicted Terry Ray Hayes of first-degree premeditated
murder, and the sentencing judge imposed the enhanced
sentence of life without the possibility of parole for 50
years (hard 50 sentence). On direct appeal, this court
affirmed Hayes' murder conviction but vacated the hard 50
sentence because Kansas' statutory scheme for imposing
the enhanced sentence violated Hayes' right to a jury
trial under the Sixth Amendment to the United States
Constitution. State v. Hayes, 299 Kan. 861, 327 P.3d
414 (2014). Upon remand, the district court applied
intervening curative legislation, now codified at K.S.A. 2017
Supp. 21-6620, to again impose a hard 50 sentence. Hayes now
appeals that new hard 50 sentence, claiming the district
court's retroactive application of K.S.A. 2017 Supp.
21-6620 violated the prohibition on ex post facto laws. In
accord with our recent holdings, we affirm Hayes' hard 50
and Procedural Overview
2011, a jury convicted Terry Hayes of premeditated
first-degree murder for the August 5, 2010 shooting death of
his estranged wife. At that time, the default sentence for
premeditated first-degree murder was life without possibility
of parole for 25 years (hard 25). See K.S.A. 21-4706(c);
K.S.A. 2010 Supp. 22-3717(b)(1). The sentence could be
enhanced to a hard 50 sentence if the sentencing judge found,
by a preponderance of the evidence, that one or more
aggravating factors existed and that the aggravators were not
outweighed by mitigating circumstances. K.S.A. 21-4635.
sentencing judge employed the statutory procedure to impose a
hard 50 sentence, after finding Hayes had committed the
murder in an especially heinous, atrocious, or cruel manner
and the aggravated circumstance was not outweighed by any
mitigating factors. Hayes appealed that hard 50 sentence.
Hayes' first appeal was pending, the United States
Supreme Court issued its opinion in Alleyne v. United
States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013). Alleyne held that the facts a sentencing
court relies upon to increase an offense's mandatory
minimum sentence are elements of that enhanced offense. As
such, those sentence-enhancing facts must be proved to a jury
beyond a reasonable doubt to avoid a violation of the
defendant's Sixth Amendment right to jury trial. 570 U.S.
at 114-15. Subsequently, in State v. Soto, 299 Kan.
102, 124, 322 P.3d 334 (2014), this court held that in light
of Alleyne's holding, K.S.A. 21-4635's
procedure for imposing a hard 50 sentence violates the Sixth
Amendment by permitting a judge to make the fact-finding
necessary to impose an increased mandatory minimum sentence,
rather than requiring a jury to find the existence of
aggravating factors beyond a reasonable doubt.
resolving Hayes' initial appeal, this court affirmed
Hayes' murder conviction but held that under
Alleyne and Soto, Hayes' hard 50
sentence was imposed in violation of his Sixth Amendment
right to a jury trial. Accordingly, this court vacated the
hard 50 sentence and remanded the case for resentencing.
Hayes, 299 Kan. at 868.
remand, the State gave notice of its intent to pursue a hard
50 sentence again pursuant to the retroactive application
provisions of K.S.A. 2017 Supp. 21-6620, which the
Legislature amended in 2013 to alter the procedure for
imposing a hard 50 sentence and bring it in line with the
holding in Alleyne. See L. 2013, ch. 1, § 1
(Special Session). The amended statute requires that, before
a hard 50 sentence may be imposed, a jury must find beyond a
reasonable doubt that at least one aggravating circumstance
exists and that the aggravating circumstance(s) are not
outweighed by any mitigating circumstances.
filed a motion asking the district court to find that
retroactive application of the 2013 amendments to K.S.A.
21-6620 violates the Ex Post Facto Clause of the United
States Constitution. See U.S. Const. art. I, § 10.
Following a hearing, the district court denied Hayes'
motion. Hayes subsequently waived his right to have a jury
make any findings of aggravating and mitigating circumstances
and instead tried the hard 50 issue to the district court
judge on ...