State v. Lee

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 113,562

STATE OF KANSAS,
Appellant,

v.

AMONEO D. LEE,
Appellee.


SYLLABUS BY THE COURT

The decisions in Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L.
Ed. 2d 314 (2013), and State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014), do not render
judgments illegal that were final before those decisions were issued.

Appeal from Sedgwick District Court; RICHARD T. BALLINGER, judge. Opinion filed April 29,
2016. Reversed.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant.

Richard Ney, of Ney & Adams, of Wichita, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: The State of Kansas appeals from an order by the district court that
granted Amoneo D. Lee's motion to correct an illegal sentence. Lee was convicted by a
jury for a 1995 murder, and the judge imposed a life sentence without the possibility of
parole for 40 years. The conviction was affirmed by this court in State v. Lee, 266 Kan.
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804, 977 P.2d 263 (1999). The validity of the sentencing procedure was not raised in the
direct appeal.

In 2008, Lee filed a motion "for correction of sentence pursuant to K.S.A. 22-
3504(1)," alleging, inter alia, that the sentencing court denied him "his due process rights
of allowing the jury to participate in the sentencing proceeding that was not waived by
the defendant." The district court summarily denied the motion. This court affirmed the
judgment of the district court, relying on the then-current understanding of Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000): Because the
sentencing court did not enhance Lee's maximum sentence but only his sentence relating
to parole eligibility, the sentence did not violate his Sixth Amendment right to a jury trial.
State v. Lee, No. 101,638, 2011 WL 433533 (Kan. 2011) (unpublished opinion).

On August 11, 2014, Lee filed through counsel a second motion to correct an
illegal sentence, based on Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L.
Ed. 2d 314 (2013), and State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014). Following a
hearing, the district court granted Lee's motion. It is this motion and order that is the
subject of the current appeal.

Whether a sentence is illegal under K.S.A. 22-3504 is a question of law subject to
de novo review. State v. Mitchell, 284 Kan. 374, 376, 162 P.3d 18 (2007).

At sentencing, the district court judge considered Lee's three prior convictions of
aggravated battery, as well as convictions of carrying concealed weapons, burglaries, and
thefts. He also took into account the nature of the crime at hand and concluded: "Clearly
the aggravating factors in this case, the prior conviction, the severity of it, those findings
I've already made, clearly outweigh beyond a reasonable doubt any mitigating factor that
exists in this case." Based on this finding, the judge sentenced Lee to a life term without
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eligibility for parole for a minimum of 40 years. These determinations were made
exclusively by the sentencing judge.

In granting Lee's motion to correct the sentence, the Sedgwick County District
Court agreed with him that the sentencing procedure violated Alleyne. The district court
then held that retroactivity was not a relevant inquiry, because it would be unfair to
punish a defendant who was the victim of bad timing. The court then ordered that Lee be
brought back into court for resentencing.

Under K.S.A. 22-3504(1), a defendant may file a motion to correct an illegal
sentence at any time. An illegal sentence is a sentence imposed by a court without
jurisdiction; a sentence that does not conform to the statutory provision, either in the
character or the term of the punishment authorized; or a sentence that is ambiguous with
respect to the time and manner in which it is to be served. Mitchell, 284 Kan. at 376. A
sentence is illegal only if it fits within these categories. State v. Gayden, 281 Kan. 290,
293, 130 P.3d 108 (2006). A claim that a term of punishment was later declared
unconstitutional does not satisfy the requirements for finding a sentence illegal. 281 Kan.
at 292.

This court addressed that issue squarely in State v. Moncla, 301 Kan. 549, 553-54,
343 P.3d 1161 (2015), holding:

"Moncla also argues that his sentence is illegal because a judge rather than a jury
determined the existence and weight of the aggravating factor that led to the hard 40. He
cites Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 2162-63, 186 L. Ed. 2d 314
(2013), which held that, under the Sixth Amendment, any fact that increased a sentence
must be found by a jury rather than a judge. 'Because the definition of an illegal sentence
does not include a claim that the sentence violates a constitutional provision, a defendant
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may not file a motion to correct an illegal sentence based on constitutional challenges to
his or her sentence.' State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007); see Verge
v. State, 50 Kan. App. 2d 591, 598-99, 335 P.3d 679 (2014) (motion to correct illegal
sentence based on Alleyne improper constitutional challenge to sentence)."

See also State v. Warrior, 303 Kan. 1008, Syl., ___ P.3d ___ (No. 111,524 filed
March 11, 2016) (motion to correct illegal sentence inappropriate vehicle for challenges
under Alleyne); State v. Noyce, 301 Kan. 408, 409-10, 343 P.3d 105 (2015) (Alleyne
constitutional issues not proper basis for motion to correct illegal sentence); State v.
Peirano, 289 Kan. 805, 217 P.3d 23 (2009) (failure of sentencing court to carry out
statutorily mandated balancing of aggravating and mitigating factors did not render
sentence illegal).

Lee seeks to frame his main argument as being something other than a
constitutional challenge. As artfully crafted as his arguments are, they all seek application
of later caselaw to the statute that was in effect at the time that he was sentenced. Lee was
sentenced under a statute that did not, at the time, conflict with any higher court decision
on the jury-determination question.

The statute, K.S.A. 22-3504, was not void at the time, because no court had held it
to be void. Apprendi was not issued until June 2000, and Lee's conviction, sentence, and
appeal had become final by that time. The 1997 statute was not vacated as having no
effect. See, e.g., Whisler v. State, 272 Kan. 864, 877-79, 36 P.3d 290 (2001) (Apprendi
represented procedural, not substantive change and was not a "watershed rule" of
criminal procedure implicating fundamental fairness of trial; could not be applied in
collateral attacks on sentences). Whether the timing of subsequent decisions gives the
appearance of "unfairness," as the district court ruled, is irrelevant: Lee's claim is
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inappropriate because a motion to correct an illegal sentence cannot be used to attack the
constitutionality of a sentencing statute.

The decision of the district court granting the motion to correct an illegal sentence
is reversed, and the order that Lee be resentenced is vacated.