State v. Coleman ( 2020 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 120,246
STATE OF KANSAS,
Appellee,
v.
CURTIS L. COLEMAN JR.,
Appellant.
SYLLABUS BY THE COURT
1.
In postconviction sentence modification proceedings there must be a procedural
vehicle for presenting an argument to the court.
2.
The rule of law declared in Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151,
186 L. Ed. 2d 314 (2013), that the Sixth Amendment to the United States Constitution
requires 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.
3.
A sentence imposed in violation of the constitutional holding in Alleyne v. United
States, 570 U.S. 99, 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 illegal sentence.
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4.
For a K.S.A. 60-1507 motion filed in a case that was final when Alleyne v. United
States, 570 U.S. 99, 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.
5.
The change in law effected in Alleyne v. United States, 570 U.S. 99, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013), does not trigger K.S.A. 2019 Supp. 21-6628(c). The
Alleyne Court did not find either the term of imprisonment or the statute authorizing the
term of imprisonment to be unconstitutional.
Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed September
11, 2020. Affirmed.
Curtis L. Coleman Jr., appellant pro se, was on the briefs.
Lois Malin, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.
The opinion of the court was delivered by
WARD, J.: Curtis L. Coleman Jr. takes this appeal from the district court's decision
summarily denying his postsentence motion to modify sentence. Determining that no
legal avenue exists for the relief requested by Coleman, we affirm the district court's
denial of Coleman's motion.
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BACKGROUND OF THE CASE
Trial, Sentencing, and Direct Appeals
On March 11, 1999, a jury convicted Coleman of premeditated first-degree murder
and three counts of aggravated assault for crimes he committed in October 1998 at age
15. Prior to trial, he was certified for adult prosecution. On May 14, 1999, the district
court sentenced Coleman to a hard 40 life sentence on the murder charge pursuant to
K.S.A. 21-4635. The court added 13 additional months in prison for the aggravated
assault charges.
Coleman appealed to this court challenging the constitutionality of the adult
certification statute as well as the constitutionality of his hard 40 life sentence. He also
asserted that the district court committed instructional error and that the prosecutor made
improper statements in final argument. And he argued that the district court improperly
considered several nonstatutory aggravating factors when imposing the hard 40 life
sentence.
In State v. Coleman, 271 Kan. 733, 26 P.3d 613 (2001) (Coleman I), this court
upheld the convictions and rejected his several constitutional challenges. But we found
that the district court erred in sentencing him to a hard 40 life sentence by considering
two aggravating factors not found in the statute, namely the victim's age and the victim's
state of mind between the time of her injury and the time of her death. The case was
remanded for resentencing on the murder charge.
On September 14, 2001, Coleman was again sentenced to a hard 40 life term for
first-degree murder, a sentence later affirmed in State v. Coleman, No. 88,159, 2003 WL
21664787 (Kan. 2003) (unpublished opinion) (Coleman II). The United States Supreme
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Court denied certiorari. Coleman v. Kansas, 540 U.S. 993, 124 S. Ct. 494, 157 L. Ed. 2d
393 (2003).
Current Motion
On January 5, 2018, over 14 years after his direct appeals were finalized, Coleman
filed a pro se motion seeking to have his hard 40 life sentence modified "to require no
mandatory term of imprisonment." His motion cited Alleyne v. United States, 570 U.S.
99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and State v. Soto, 299 Kan. 102, 322 P.3d
334 (2014), in support of the contention that his sentence violated his Sixth Amendment
right to a jury trial because the trial judge and not a jury made the factual findings
necessary for sentence enhancement. He asserted that K.S.A. 2019 Supp. 21-6628(c) was
the statutory mechanism by which his constitutionally defective sentence could be
remedied. The State filed a response to Coleman's motion and Coleman filed a reply.
On August 15, 2018, the district judge (the same district judge who sentenced
Coleman 17 years earlier) filed a memorandum decision summarily denying Coleman's
motion and request for hearing. The judge briefly noted the history of Coleman's trial,
sentencing, and direct appeals, as well as a motion Coleman had earlier filed pursuant to
K.S.A. 60-1507. Without addressing the applicability of K.S.A. 2019 Supp. 21-6628(c),
the district judge ruled that Coleman's reliance on Alleyne was misplaced, noting that the
rule of law announced in Alleyne "cannot be applied retroactively to cases that were final
when that case was decided as in the defendant's underlying case."
Coleman appeals the district court's denial of his motion. Because he received a
life sentence for the first-degree murder charge, the jurisdiction of this court is proper
under K.S.A. 2019 Supp. 22-3601(b)(3)-(4).
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ANALYSIS
Standard of Review
In his petition for review, Coleman contends the district court misconstrued his
motion for sentence modification and, in doing so, committed a "manifest error of both
fact and law . . . thereby constituting an abuse of discretion." He cites State v. Santos-
Vega, 299 Kan. 11, 321 P.3d 1 (2014), in support of an abuse of discretion standard of
review. He also cites State v. Burnett, 297 Kan. 447, 301 P.3d 698 (2013), for the
proposition that jurisdictional and statutory interpretation issues are questions of law over
which an appellate court's scope of review is unlimited.
The State compares Coleman's motion for sentence modification to a motion to
correct illegal sentence pursuant to K.S.A. 22-3504, asserting that when the district court
summarily denies a motion to correct illegal sentence a reviewing court applies a de novo
standard of review, citing, State v. Gray, 303 Kan. 1011, 1013-1014, 368 P.3d 1113(2016). The State also characterizes this appeal as one involving statutory interpretation,
namely K.S.A. 2019 Supp. 21-6628(c), a question of law over which the appellate courts
have unlimited review, citing, State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098(2015).
We conclude this appeal involves constitutional issues as well as questions of
statutory interpretation. Constitutional claims are questions of law subject to de novo
review. State v. Engelhardt, 280 Kan. 113, 138, 119 P.3d 1148 (2005). Interpretation of a
statute is a question of law over which appellate courts likewise have unlimited review.
State v. Bryant, 310 Kan. 920, 921, 453 P.3d 279 (2019).
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Sentence Enhancement Based on Judicial Fact-finding
When Coleman was resentenced in 2001 following remand by this court, the
district court found the existence of one or more aggravating factors by a preponderance
of the evidence and imposed a hard 40 life sentence. The finding of these aggravating
factors was not submitted to a jury for consideration.
Coleman argued in his direct appeal that his Sixth Amendment jury trial right had
been violated per Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000), in which the United States Supreme Court held: "Taken together,
these rights [to a speedy and public trial, by an impartial jury] indisputably entitle a
criminal defendant to 'a jury determination that [he] is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt.'" That Court added: "Other
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490.
The Coleman I court rejected his Sixth Amendment argument. Coleman I, 271
Kan. at 741. The issue had already been considered and resolved. In State v. Conley, 270
Kan. 18, Syl. ¶ 3, 11 P.3d 1147 (2000), the court held:
"Imposition of the K.S.A. 21-4638 hard 40 sentence based on a fact not found by
the jury does not increase a defendant's maximum sentence of imprisonment for life
imposed under K.S.A. 21-4706(c). The hard 40 sentence limits the lower end of the
sentence. Defendant's hard 40 sentence violates neither the Due Process Clause of the
United States Constitution, nor his right to trial by jury under the 6th Amendment to the
United States Constitution or § 5 of the Kansas Constitution Bill of Rights."
The Conley court acknowledged Apprendi's Sixth Amendment ruling but found
that McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986),
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controlled the issue rather than Apprendi. Conley, 270 Kan. at 34. In McMillan, the
United States Supreme Court upheld the constitutionality of a Pennsylvania statute under
which the sentencing court was required to impose a mandatory minimum sentence of
five years if it found by a preponderance of the evidence that the defendant visibly
possessed a firearm during commission of the underlying crime. The McMillan Court
concluded that the firearm possession finding was a sentencing factor to be determined
by the court rather than an element of the underlying crime which the State must prove to
a jury beyond a reasonable doubt. 477 U.S. at 85-93.
Two years after Conley, the United States Supreme Court decided Harris v. United
States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). That decision upheld a
federal sentencing scheme which provided for increased mandatory minimum sentences
based on a district court's finding that the defendant possessed, brandished, or discharged
a firearm during commission of the underlying offense. Relying on McMillan and
seeking to reconcile Apprendi, the Harris Court characterized the firearm finding as a
judicial sentencing factor rather than an element of the underlying crime. 536 U.S. at 557,
564-565. However, the same year the United States Supreme Court decided Harris it
relied on Apprendi to hold that Arizona's capital sentencing scheme was unconstitutional
because it permitted a judge and not a jury to find and balance aggravating versus
mitigating circumstances in determining a sentence of death. Ring v. Arizona, 536 U.S.
584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
A decade later the landscape on this issue shifted when the United States Supreme
Court decided Alleyne, 570 U.S. 99. The Alleyne Court looked again at the federal
sentencing scheme it had previously reviewed in Harris. It held that because the
sentencing court's finding of an aggravating factor produces a higher range of penalty, it
"conclusively indicates that the fact is an element of a distinct and aggravated crime. It
must, therefore, be submitted to the jury and found beyond a reasonable doubt.
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"Because there is no basis in principle or logic to distinguish facts that raise the
maximum from those that increase the minimum, Harris was inconsistent with Apprendi.
It is, accordingly, overruled." Alleyne, 570 U.S. at 116.
Less than a year after Alleyne was decided, this court in State v. Soto, 299 Kan.
102, 322 P.3d 334 (2014), looked again at the constitutionality of the Kansas hard 50
sentencing scheme (hard 40 for crimes prior to July 1, 1999). Based on Alleyne and also
in part on Ring, we found:
"Kansas' statutory procedure for imposing a hard 50 sentence as provided in
K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution as
interpreted in Alleyne . . . because it permits a judge to find by a preponderance of the
evidence the existence of one or more aggravating factors necessary to impose an
increased mandatory minimum sentence, rather than requiring a jury to find the existence
of the aggravating factors beyond a reasonable doubt. [Citation omitted.]" Soto, 299 Kan.
102, Syl. ¶ 9.
Modification of Coleman's Sentence
As noted above, Coleman's motion asks that his sentence be modified "to require
no mandatory term of imprisonment." He seeks elimination of the hard 40 aspect of his
life sentence. Although he is not explicitly requesting retroactive application of Alleyne
and Soto, he has no remedy here unless the rule of law established in Alleyne is applied to
his case.
In postconviction proceedings seeking sentence modification, "there must be a
procedural vehicle for presenting the argument to the court." State v. Trotter, 296 Kan.
898, 905, 295 P.3d 1039 (2013). Motions for sentence modification should be dismissed
for lack of jurisdiction unless there is statutory language authorizing the specific
requested relief. State v. Anthony, 274 Kan. 998, 1002, 58 P.3d 742 (2002). Coleman
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cites K.S.A. 2019 Supp. 21-6628(c) as the mechanism for his requested relief, but pro se
postconviction pleadings must be analyzed by their content, not necessarily by their label.
State v. Redding, 310 Kan. 15, 18, 444 P.3d 989 (2019). We therefore consider the
several ways in which Coleman's motion may be viewed.
It should first be noted that Coleman's motion is not a proper motion to correct an
illegal sentence under K.S.A. 22-3504, since a sentence imposed in violation of Alleyne
does not fall within the definition of an "illegal sentence" that may be addressed by
K.S.A. 22-3504. State v. Brown, 306 Kan. 330, Syl. ¶ 1, 393 P.3d 1049 (2017); State v.
Moncla, 301 Kan. 549, Syl. ¶ 4, 343 P.3d 1161 (2015).
Second, even if Coleman's motion is analyzed as one brought under K.S.A. 60-
1507, it also fails. That statute provides a mechanism for collateral attack of an
unconstitutional sentence, but it has limitations. A motion for relief under this statute
must be brought within one year following the conclusion of any direct appeals, including
the denial of a petition for writ of certiorari to the United States Supreme Court. K.S.A.
2019 Supp. 60-1507(f)(1). This time limitation may be extended by the court "only to
prevent a manifest injustice." K.S.A. 2019 Supp. 60-1507(f)(2).
Coleman's direct appeals in this case were final in 2003. As noted, he was
resentenced to a new hard 40 term following remand by the Coleman I court. His appeal
of the new hard 40 sentence was denied in 2003 by the Coleman II court. And, the United
States Supreme Court denied his petition for writ of certiorari later that same year. All of
this occurred 10 years before Alleyne was decided in June 2013.
In Kirtdoll v. State, 306 Kan. 335, Syl. ¶ 1, 393 P.3d 1053 (2017) (Kirtdoll II), this
court specifically addressed the retroactive application of Alleyne to cases already final
when Alleyne was decided. Kirtdoll was convicted in 2004 of first-degree murder and
sentenced to a hard 50 life sentence. His conviction and sentence were affirmed in a
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direct appeal where one of the issues he raised was an Apprendi challenge to his hard 50
life sentence. State v. Kirtdoll, 281 Kan. 1138, 1151, 1153, 136 P.3d 417 (2006) (Kirtdoll
I).
Following his direct appeal Kirtdoll filed K.S.A. 60-1507 motions in 2007 and
2010. Both were denied by the district court. The Court of Appeals affirmed each
denial. Kirtdoll v. State, No. 100,880, 2009 WL 2766290 (Kan. App. 2009) (unpublished
opinion); Kirtdoll v. State, No. 107,385, 2013 WL 517812 (Kan. App.
2013) (unpublished opinion).
In 2013, Kirtdoll filed what he styled a "Motion to Vacate Sentence." The district
court analyzed the motion under K.S.A. 22-3504 and under K.S.A 60-1507. It determined
that the motion was not proper under K.S.A. 22-3504 because it was an attack upon the
statutory scheme used to arrive at the hard 50 sentence rather than an attack upon the
actual sentence itself. The district court further determined that his motion was not proper
under K.S.A. 60-1507 because it was impermissibly successive as well as untimely.
The Kirtdoll II court agreed with the district court and held that the rule of law
declared in Alleyne cannot be applied retroactively to invalidate a sentence that was final
when the Alleyne decision was released. That court further held that when a K.S.A. 60-
1507 motion is filed in a case that was final prior to Alleyne, the change in law effected
by Alleyne cannot provide the exceptional circumstances required to permit a successive
motion or demonstrate the manifest injustice necessary to permit an untimely motion. 306
Kan. at 341.
K.S.A. 2019 Supp. 21-6628(c)
Having determined that Coleman has no remedy under K.S.A. 22-3504 or K.S.A.
60-1507, and that Alleyne and Soto do not apply retroactively to his case, the only
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question that remains is whether K.S.A. 2019 Supp. 21-6628(c), the specific provision
relied upon by Coleman, changes that. We conclude it does not. That statute in its
entirety reads:
"(a) In the event the term of imprisonment for life without the possibility of
parole or any provision of K.S.A. 21-6626 or 21-6627, and amendments thereto,
authorizing such term is held to be unconstitutional by the supreme court of Kansas or the
United States supreme court, the court having jurisdiction over a person previously
sentenced shall cause such person to be brought before the court and shall modify the
sentence to require no term of imprisonment for life without the possibility of parole and
shall sentence the defendant to the maximum term of imprisonment otherwise provided
by law.
"(b) In the event a sentence of death or any provision of chapter 252 of the 1994
Session Laws of Kansas authorizing such sentence is held to be unconstitutional by the
supreme court of Kansas or the United States supreme court, the court having jurisdiction
over a person previously sentenced shall cause such person to be brought before the court
and shall modify the sentence and resentence the defendant as otherwise provided by law.
"(c) In the event the mandatory term of imprisonment or any provision of chapter
341 of the 1994 Session Laws of Kansas authorizing such mandatory term is held to be
unconstitutional by the supreme court of Kansas or the United States supreme court, the
court having jurisdiction over a person previously sentenced shall cause such person to be
brought before the court and shall modify the sentence to require no mandatory term of
imprisonment and shall sentence the defendant as otherwise provided by law."
Although this court has not specifically interpreted K.S.A. 2019 Supp. 21-6628(c),
we did analyze the predecessor statute of K.S.A. 2019 Supp. 21-6628(b) in State v.
Thurber, 308 Kan. 140, 420 P.3d 389 (2018), a death penalty case. The Thurber court
held that a provision contained in the Kansas death penalty scheme, K.S.A. 2016 Supp.
21-6622(h), unconstitutionally limited the class of intellectually disabled persons
qualifying for protection against execution. 308 Kan. 140, Syl. ¶ 17. Thurber argued that
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because the court concluded subsection (h) was unconstitutional, the entire death penalty
scheme was invalid, and his sentence of death should be commuted to a sentence of life
in prison. Thurber based his argument on K.S.A. 21-4629, which provided:
"In the event a sentence of death or any provision of this act authorizing such
sentence is held to be unconstitutional by the supreme court of Kansas or the United
States supreme court, the court having jurisdiction over a person previously sentenced
shall cause such person to be brought before the court and shall modify the sentence and
resentence the defendant as otherwise provided by law."
The Thurber court compared a similar Florida statute, Section 775.082(2) of the
Florida Statutes (2015), which provided in pertinent part:
"In the event the death penalty in a capital felony is held to be unconstitutional by
the Florida Supreme Court or the United States Supreme Court, the court having
jurisdiction over a person previously sentenced to death for a capital felony shall cause
such person to be brought before the court, and the court shall sentence such person to
life imprisonment as provided in subsection (1)."
This statute was discussed by the Florida Supreme Court in Hurst v. State, 202
So.3d 40, 63-66 (Fla. 2016), which addressed whether an appellant's death sentence was
required to be commuted to life imprisonment based on the United States Supreme
Court's decision in Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 193 L. Ed. 2d 504(2016). There the United States Supreme Court held that a provision of the Florida capital
sentencing scheme, under which an advisory jury makes recommendations to a judge
who then made the critical findings needed for imposition of a death sentence, violated
the Sixth Amendment right to a jury trial.
The Florida Supreme Court interpreted the Florida statute as one providing a "fail
safe" sentencing option if the death penalty, as a penalty, was declared categorically to be
an unconstitutional sentence. Hurst, 202 So. 3d at 66. Because the United States Supreme
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Court invalidated only a portion of the Florida death penalty scheme, the Florida court
held that its "fail safe" statute did not automatically operate to commute death sentences
to life imprisonment without parole. 202 So. 3d at 63-66.
The Thurber court held that K.S.A. 21-4629 likewise operates as a "fail safe" if the
death sentence itself or a provision "authorizing such sentence" is deemed
unconstitutional. Thurber, 308 Kan. at 234. The Thurber court concluded that K.S.A. 21-
4629 was not implicated because K.S.A. 2016 Supp. 21-6622(h) was not a provision
authorizing a death sentence. Nor did that court find that the death penalty itself was
unconstitutional. Thurber was therefore not entitled to have his death sentence
automatically converted to a life sentence. 308 Kan. at 234-35.
We reach the same conclusion today with respect to K.S.A. 2019 Supp. 21-
6628(c) as the Thurber court did with the predecessor of K.S.A. 2019 Supp. 21-6628(b).
We have said that the legislative intent governs if that intent can be ascertained from the
statute's language. State v. Pulliam, 308 Kan. 1354, 1364, 430 P.3d 39 (2018). Criminal
statutes, although construed strictly against the State, must be interpreted in a way that is
reasonable and sensible to effectuate the legislative design and the true intent of the law.
State v. Keel, 302 Kan. 560, Syl. ¶ 5, 357 P.3d 251 (2015).
The statute in question here is a fail-safe provision. By its clear and unequivocal
language it applies only when the term of imprisonment or the statute authorizing the
term of imprisonment are found to be unconstitutional. Neither circumstance has
occurred.
The statute under which the district court in Coleman's case found the existence of
aggravating factors necessary to impose a hard 40 life sentence, K.S.A. 21-4635, was not
a statute authorizing his hard 40 life sentence. Instead, it was part of the procedural
framework by which the enhanced sentence was determined. His hard 40 life sentence
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was authorized by virtue of his commission of premeditated first-degree murder, an
offense qualifying for such sentence under Kansas law.
And regarding Coleman's term of imprisonment itself, Kansas' hard 40 and hard
50 sentences have never been determined to be categorically unconstitutional. This court
continues to uphold such sentences in appropriate cases. See e.g. State v. Hilt, 307 Kan.
112, 129, 406 P.3d 905 (2017); State v. Alford, 308 Kan. 1336, 1342, 429 P.3d 197(2018); and State v. Kahler, 307 Kan. 374, 414, 410 P.3d 105 (2018). And such sentences
continue to be imposed in qualifying cases in Kansas.
CONCLUSION
The district court correctly denied Coleman's motion for sentence modification.
Alleyne and Soto do not operate retroactively to provide a remedy in this case. And
K.S.A. 2019 Supp. 21-6628(c) does not apply. The judgment of the district court is
affirmed.
MICHAEL E. WARD, Senior Judge, assigned.1
1
REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,246
under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on
the court by the retirement of Chief Justice Lawton R. Nuss.
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