State v. Appleby

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 122,281

STATE OF KANSAS,
Appellee,

v.

BENJAMIN A. APPLEBY,
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.
Applying State v. Coleman, 312 Kan. 114, 472 P.3d 85 (2020), to the
circumstances of this case, there is no procedural vehicle that allows a court to revisit a
sentence that was final when Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186
L. Ed. 2d 314 (2013), was decided.

Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed April 30, 2021.
Affirmed.

Wendie C. Miller, of Wichita, was on the briefs for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, were on the briefs for appellee.

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 PER CURIAM: Benjamin Appleby attacks the portion of his life sentence for
capital murder that sets a minimum sentence of 50 years. Appleby argues he is entitled to
resentencing under K.S.A. 2020 Supp. 21-6628(c), formerly K.S.A. 21-4639, because the
sentencing judge engaged in judicial fact-finding to determine that aggravating factors
justified a minimum sentence of 50 years instead of the 25-year minimum that would
otherwise apply.

K.S.A. 2020 Supp. 21-6628(c) does not create an avenue or independent means by
which a convicted person can challenge his or her underlying sentence. We thus affirm
the district court's denial of Appleby's request for relief.

FACTS AND PROCEDURAL BACKGROUND

A jury convicted Appleby of capital murder and attempted rape committed in June
2002. State v. Appleby, 289 Kan. 1017, 1025, 221 P.3d 525 (2009). The district court
judge, without jury findings, imposed a hard 50 life sentence for capital murder and a
228-month consecutive sentence for attempted rape. This court reversed the attempted
rape conviction as multiplicitous of the capital murder count on direct appeal. 289 Kan. at
1026-33, 1069. We also rejected Appleby's other challenges, including a constitutional
challenge to his hard 50 sentence based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000). See Appleby, 289 Kan. at 1021, 1069.

Appleby has since sought relief through several avenues. He first filed a motion
under K.S.A. 60-1507, alleging both trial and appellate counsel rendered ineffective
assistance. The district court denied relief. He appealed, and a Court of Appeals panel

2
rejected his arguments. Appleby v. State, No. 108,777, 2014 WL 801921 (Kan. App.
2014) (unpublished opinion).

Appleby later petitioned for federal habeas relief. These claims were also denied.
See Appleby v. Cline, No. 15-3038-JTM, 2016 WL 7440821 (D. Kan. 2016) (unpublished
opinion); Appleby v. Cline, No. 17-2003, 711 Fed. Appx. 459 (10th Cir. 2017)
(unpublished opinion) (denying certificate of appealability and dismissing appeal), cert.
denied 138 S. Ct. 1173 (2018).

Appleby then moved to correct an illegal sentence. The State moved to summarily
deny the motion. The district court ruled against Appleby, and Appleby then brought this
appeal.

While his appeal was pending, this court decided State v. Coleman, 312 Kan. 114,
472 P.3d 85 (2020). There, we held that K.S.A. 2020 Supp. 21-6628(c) does not create a
new avenue or independent means by which a convicted person can challenge his or her
underlying sentence. 312 Kan. At 121-24. Both parties filed Rule 6.09 letters addressing
Coleman. (2021 Kan. S. Ct. R. 40.)

The State also moved for summary disposition, arguing Coleman is a controlling
decision dispositive of the appeal. See Supreme Court Rule 7.041(b) (2021 Kan. S. Ct. R.
48). Appleby filed a timely response. We then requested supplemental briefing.

This court has jurisdiction under K.S.A. 2020 Supp. 22-3601(b)(3) (allowing
appeal of life sentence to Supreme Court, except for sentence imposed under K.S.A. 21-
4643 or K.S.A. 2020 Supp. 21-6627).

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 ANALYSIS

Standard of Review

This case involves issues of statutory interpretation and constitutional claims. Both
are questions of law subject to de novo or unlimited review. Coleman, 312 Kan. at 117.

History of Caselaw on Judicial Fact-finding

Appleby raises the same complaint as had Curtis L. Coleman Jr.: A judge, not a
jury, found aggravating factors that served as the basis for increasing the minimum term
of their life sentences from 25 years to either 40 years in Coleman's case or 50 years in
Appleby's. Like Coleman, Appleby contends his sentence should be vacated because the
Sixth Amendment to the United States Constitution requires a jury determine these
aggravating factors. See Coleman, 312 Kan. at 117-18; Appleby, 289 Kan. at 1065-69.

When judges sentenced Appleby and Coleman, Kansas law allowed judicial fact-
finding. And this court upheld judicial fact-finding in Appleby's and many other cases.
Appleby, 289 Kan. at 1069 (citing cases reaching same holding). But, about five years
after Appleby's direct appeal ended, this court held it was unconstitutional for a judge to
increase the minimum sentence a defendant must serve based on findings made by the
judge, not a jury. See State v. Soto, 299 Kan. 102, 122-24, 322 P.3d 334 (2014) (citing
Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 [2013]).

This court in Coleman detailed this history. 312 Kan. at 118-19. We need not
discuss all the detail here; a short history provides context for our holding that, like
Coleman, Appleby has no right to relief.
4
 Coleman began with a discussion of Apprendi, 530 U.S. 466. In Apprendi, the
United States Supreme Court held that any fact other than the existence of a prior
conviction "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. That holding applied explicitly only to the determination of statutory maximum
sentences and, that same year, this court declined to extend the Apprendi rule to findings
made by a district court judge before imposing a mandatory minimum—the complaint
Appleby makes. See State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000) (relying on
McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 [1986]).

Two years later, the United States Supreme Court walked the line between
Apprendi and McMillan by characterizing a judge's finding that a defendant possessed,
brandished, or discharged a firearm during the commission of an offense as a judicial
sentencing factor rather than an element of the crime. Harris v. United States, 536 U.S.
545, 556, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). And that same year, the Supreme
Court held unconstitutional Arizona's capital sentencing statutes that allowed a judge to
find and balance mitigating circumstances in determining whether to impose a death
sentence. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

Ten years later, the United States Supreme Court overruled Harris in Alleyne. The
Court found "no basis in principle or logic to distinguish facts that raise the maximum
from those that increase the minimum." Alleyne, 570 U.S. at 116. Thus, the Court held
that any fact that increases the minimum sentence must "be submitted to the jury and
found beyond a reasonable doubt." 570 U.S. at 116.

5
 This court extended Alleyne to Kansas' hard 50 sentencing statutes (hard 40 for
crimes committed before July 1, 1999) in Soto, 299 Kan. at 122-24. We later held the rule
of law declared in Alleyne cannot be applied retroactively to invalidate a sentence that
was final before the date of the Alleyne decision. Kirtdoll v. State, 306 Kan. 335, Syl. ¶ 1,
393 P.3d 1053 (2017).

Modification of Appleby's Sentence

While that history explains the legal basis for Appleby's complaint, it does not
address the pivotal question in his appeal: Can he obtain relief from his sentence given
that it was final several years before our decision in Soto and the United State Supreme
Court's decision in Alleyne? The finality of his sentence means no court has jurisdiction
to modify the sentence unless there is a jurisdictional basis for presenting the argument to
the court. Coleman, 312 Kan. at 119-20 (quoting State v. Trotter, 296 Kan. 898, 905, 295
P.3d 1039 [2013]). Requests for a sentence modification must be "dismissed for lack of
jurisdiction unless there is statutory language authorizing the specific requested relief."
312 Kan. at 120 (citing State v. Anthony, 274 Kan. 998, 1002, 58 P.3d 742 [2002]).

Given that, the Coleman decision explored the potential ways a court could have
jurisdiction to hear the claim of someone like Appleby or Coleman who seeks relief from
the hard 40 or 50 minimum term of his or her life sentence. We considered options, even
if not raised by Coleman, because "pro se postconviction pleadings must be analyzed by
their content, not necessarily by their label." Coleman, 312 Kan. at 120. But we
concluded no procedure offers a path to jurisdiction. See Coleman, 312 Kan. at 121-24.
Appleby's briefing does not persuade us to depart from Coleman's holdings.

6
 One of the procedural mechanisms discussed in Coleman is a motion to correct an
illegal sentence. Appleby filed his motion as one to correct an illegal sentence under
K.S.A. 2020 Supp. 22-3504. That statute allows courts to consider an illegal sentence at
any time, which includes after a direct appeal is final. But what constitutes an illegal
sentence is not open ended, and this court has made clear that "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." Coleman, 312 Kan. at 120 (citing 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]). Appleby offers no argument that counters this holding in Coleman,
Brown, and Moncla.

Coleman also discussed and rejected another mechanism that can lead to post-
judgment relief from a sentence: a motion for habeas relief under K.S.A. 60-1507. This
statute grants a court jurisdiction to consider a collateral attack on an unconstitutional
sentence. Generally, a movant is allowed only one motion and that motion must be filed
within one year of the movant's direct appeal ending. Exceptions apply, however. A court
can allow a second motion if the movant establishes exceptional circumstances, and the
one-year limitation does not apply if a court finds it necessary to lift the bar to prevent a
manifest injustice. See Coleman, 312 Kan. at 120; K.S.A. 2020 Supp. 60-1507(c), (f).

Coleman filed his 60-1507 motion seeking to set aside his hard 50 sentence more
than one year after the conclusion of his final appeal and after he had filed two previous
60-1507 motions. He claimed manifest injustice and exceptional circumstances justified
allowing him to file this third motion more than a year after his appeal was final. But this
court rejected his argument based on Kirtdoll, 306 Kan. at 341. There, this court had held
"for 60-1507 motions to be considered hereafter, Alleyne's prospective-only change in the
law cannot provide the exceptional circumstances that would justify a successive 60-1507
7
motion or the manifest injustice necessary to excuse the untimeliness of a 60-1507
motion." Kirtdoll, 306 Kan. At 341. We thus held that Coleman could not obtain relief
through a 60-1507 motion. Coleman, 312 Kan. at 120-21.

Perhaps because of this line of cases and the fact a 60-1507 motion would be
successive and out-of-time, Appleby advances no argument to counter Kirtdoll's or
Coleman's holding on this point. But we still mention this procedural mechanism because
courts sometimes treat a pro se motion as a motion filed under 60-1507 even if labeled as
something else. Yet, consistent with Coleman and Kirtdoll, converting his motion to
correct an illegal sentence to a 60-1507 motion would not benefit Appleby because he has
no right to relief under K.S.A. 2020 Supp. 60-1507.

Finally, like Coleman, Appleby offers K.S.A. 2020 Supp. 21-6628(c) as a basis for
relief. In fact, Appleby solely relies on this provision. But we concluded in Coleman that
K.S.A. 2020 Supp. 21-6628(c) does not provide defendants in Appleby's position a
mechanism for relief. 312 Kan. at 121-24. We interpreted K.S.A. 2020 Supp. 21-6628 to
be a "fail-safe provision" that "[b]y its clear and unequivocal language . . . applies only
when the term of imprisonment or the statute authorizing the term of imprisonment are
found to be unconstitutional." 312 Kan. at 124.

Appleby disagrees with Coleman's statutory analysis. He argues K.S.A. 2001
Supp. 21-4635 authorized his sentence and this court ruled K.S.A. 21-4635 was
unconstitutional in Soto, 299 Kan. at 124. Coleman, however, held K.S.A. 21-4635 "was
part of the procedural framework by which the enhanced sentence was determined" and
the root authorization for Coleman's sentence was the statute that provided for a life
sentence. Coleman, 312 Kan. at 124. Here, Appleby committed capital murder, and the
Legislature has authorized a life sentence for someone convicted of that crime. See
8
K.S.A. 2001 Supp. 21-3439; K.S.A. 2001 Supp. 21-4706. A life sentence has "never been
determined to be categorically unconstitutional" and "such sentences continue to be
imposed in qualifying cases in Kansas." Coleman, 312 Kan. at 124. Thus, Appleby's
sentence does not trigger the "fail-safe" provision of K.S.A. 2020 Supp. 21-6628(c).

Thus, K.S.A. 2020 Supp. 21-6628(c) does not require resentencing Appleby.

CONCLUSION

The district court properly denied Appleby's motion for sentence modification.
There is no procedural mechanism by which a Kansas court may reconsider his sentence.
Appleby and Soto do not operate retroactively to afford a remedy. And K.S.A. 2020 Supp.
21-6628(c) does not apply. We affirm the judgment of the district court.

***

LUCKERT, C.J., concurring: In State v. Coleman, 312 Kan. 114, 472 P.3d 85
(2020), I joined this court's statutory analysis of K.S.A. 2020 Supp. 21-6628(c).
Benjamin A. Appleby and defendants in other cases now persuade me we erred in
Coleman when we held that K.S.A. 21-4635 "was not a statute authorizing [a] hard 40
life sentence," and that Curtis L. Coleman Jr.'s life sentence was instead "authorized by
virtue of his commission of premeditated first-degree murder, an offense qualifying for
such sentence under Kansas law." Coleman, 312 Kan. at 124. Yet my reexamination of
the statutory analysis does not lead me to conclude that Appleby (or Coleman) is entitled
to relief. I, therefore, concur in the decision to affirm the district court.

9
 K.S.A. 2020 Supp. 21-6628(c), formerly K.S.A. 2001 Supp. 21-4639, provides:

"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."

Appleby asks us to focus on the meaning of the word "authorizing." This court
previously did so in Smith v. Printup, 254 Kan. 315, 339, 866 P.2d 985 (1993). Printup
included two definitions. First, Webster's New International Dictionary defined
"authorize" as: "'to endorse, empower, justify, or permit by or as if by some recognized
or proper authority (as custom, evidence, personal right, or regulating power) . . . :
SANCTION.'" Printup, 254 Kan. at 339 (quoting Webster's Third New International
Dictionary 146 [1986]). Second, Black's Law Dictionary's defined it to mean:

"'To empower; to give a right or authority to act. To endow with authority or effective
legal power, warrant, or right. [Citation omitted.] To permit a thing to be done in the
future. It has a mandatory effect or meaning, implying a direction to act.

"'"Authorized" is sometimes construed as equivalent to "permitted"; or "directed", or to
similar mandatory language. Possessed of authority; that is, possessed of legal or rightful
power, the synonym of which is "competency." [Citation omitted.]'" Printup, 254 Kan. at
339 (quoting Black's Law Dictionary 133 [6th ed. 1990]).

Current definitions are consistent. E.g., Black's Law Dictionary 165 (11th ed.
2019) ("To give legal authority; to empower . 2. To formally approve; to sanction ."); Merriam Webster ("1: to endorse, empower, justify, or permit by or as if by
some recognized or proper authority such as custom, evidence, personal right, or
regulating power) a custom authorized by time [;] 2: to invest especially with legal
authority: EMPOWER//She is authorized to act for her husband."), at
https://www.merriam-webster.com/dictionary/ authorize.

Under these definitions, "authorizing" as used in K.S.A. 2020 Supp. 21-6628(c)
means having or empowering with legal authority. I thus interpret K.S.A. 2020 Supp. 21-
6628(c) to be implicated when any provision authorizing or empowering a court to
impose a hard 50 sentence (or another sentence above the statutory minimum) is held to
be unconstitutional.

The statutory framework in June 2002 when Appleby committed capital murder
was a life sentence. See K.S.A. 2001 Supp. 21-4706(c). The sentencing statutes
empowered the court to impose a mandatory term of imprisonment of 50 years if, after
hearing evidence on aggravating and mitigating circumstances, the court concluded the
aggravating circumstance or circumstances were not outweighed by mitigating
circumstances. See K.S.A. 2001 Supp. 21-4635(a); K.S.A. 2001 Supp. 21-4638. If the
court concluded the aggravating circumstance or circumstances were outweighed by
mitigating circumstances, the defendant was sentenced "as provided by law," which
meant a life sentence with no minimum. K.S.A. 2001 Supp. 21-4635(b), (c); K.S.A. 2001
Supp. 21-4638; see K.S.A. 2001 Supp. 21-4706(c) (imposing life sentence for capital
murder, defined in K.S.A. 21-3439). If the sentencing court imposed no minimum
sentence, a defendant still served at least 25 years based on statutory terms defining when
he or she became parole eligible. See K.S.A. 2001 Supp. 22-3717(b)(1) (inmates
sentenced for capital murder or premeditated first-degree murder parole eligible "after
serving 25 years of confinement, without deduction of any good time credits").
11
 These statutes only authorized or empowered the district court to impose a hard 50
life sentence on Appleby after the district court weighed aggravating and mitigating
circumstances as provided in K.S.A. 2001 Supp. 21-4635. The district court had no
authority to impose a hard 50 sentence without first walking through the weighing of
circumstances provided in K.S.A. 2001 Supp. 21-4635, a provision of chapter 341 of the
1994 Session Laws of Kansas. L. 1994, ch. 341. Thus, K.S.A. 2001 Supp. 21-4635
authorized Appleby's sentence.

This court held K.S.A. 21-4635 unconstitutional in State v. Soto, 299 Kan. 102,
Syl. ¶ 9, 124, 322 P.3d 334 (2014). There, this court concluded K.S.A. 21-4635 violated
the Sixth Amendment to the United States Constitution as applied 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." 299 Kan. 102, Syl. ¶ 9. I thus conclude this court's ruling in Soto
triggers application of K.S.A. 2020 Supp. 21-6628(c) because Soto held unconstitutional
a provision of chapter 341 of the 1994 Session Laws of Kansas authorizing the
mandatory term.

My analysis does not end there, however. Instead, it circles back to the jurisdiction
issue discussed by the majority opinion. I make this circle because K.S.A. 2020 Supp.
21-6628(c), after saying a holding of the United States Supreme Court or this court that a
statute authorizing a mandatory term is unconstitutional may trigger application of the
statute, directs that "the court having jurisdiction over a person previously sentenced shall
cause such person to be brought before the court." Under this provision, Appleby must
still show that a court has jurisdiction over him. K.S.A. 2020 Supp. 21-6628(c) does not
12
itself contain any language granting jurisdiction; the language just quoted refers to a court
having jurisdiction, meaning one that already has jurisdiction. Because the court that had
jurisdiction to impose sentence lost jurisdiction once the judgment became final, I look
back to statutes that provide jurisdiction through collateral proceedings.

As the majority discusses, only two possibilities exist as a procedure authorizing
Appleby's collateral attack on his sentence: a motion to correct an illegal sentence under
K.S.A. 2020 Supp. 22-3504 or a motion under K.S.A. 2020 Supp. 60-1507. A motion to
correct illegal sentence does not extend to claims based on Alleyne, because "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." Coleman, 312 Kan. at 120 (citing 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]). But a 60-1507 motion could grant a court jurisdiction
over an Alleyne violation. See K.S.A. 2020 Supp. 60-1507(a) ("A prisoner in custody
under sentence of a court of general jurisdiction claiming the right to be released upon the
ground that the sentence was imposed in violation of the constitution or laws of the
United States, . . . may, pursuant to the time limitations imposed by subsection [f], move
the court which imposed the sentence to vacate, set aside or correct the sentence").

Appleby did not meet the requirements imposed by K.S.A. 2020 Supp. 60-1507(c)
and (f), however, because he had filed prior 60-1507 motions and he filed this one past
the time limitation. He therefore must establish exceptional circumstances and manifest
injustice. But in Kirtdoll v. State, 306 Kan. 335, 341, 393 P.3d 1053 (2017), this court
held "for 60-1507 motions to be considered hereafter, Alleyne's prospective-only change
in the law cannot provide the exceptional circumstances that would justify a successive
60-1507 motion or the manifest injustice necessary to excuse the untimeliness of a 60-
1507 motion." Appleby does not ask us to overturn Kirtdoll.
13
 Speaking generally, it is easy to imagine situations in which a court could find
exceptional circumstances exist or that the time limitation should be extended to prevent
a manifest injustice and K.S.A. 2020 Supp. 21-6628 could apply. For example, if the
United States Supreme Court held that either the death penalty or the hard 50 sentencing
statutes was categorically unconstitutional—that is the entire scheme was invalid rather
than an aspect of it—a time extension based on manifest injustice would likely apply and
the "fail safe" provisions of K.S.A. 2020 Supp. 21-6628 could be used to provide relief.
See Coleman, 312 Kan. at 123-24 (discussing Hurst v. State, 202 So. 3d 40, 63-66 [Fla.
2016], which determined Florida statute like K.S.A. 2020 Supp. 21-6628 was a fail-safe
provision that was not triggered when United States Supreme Court invalidated only part
of Florida's death penalty law allowing judicial findings for imposition of a death).

Appleby does not present a situation that demands an extension to prevent
manifest injustice, however. See Kirtdoll, 306 Kan. at 341. Nothing in K.S.A. 2020 Supp.
21-6628 demands a result different from Kirtdoll. See Coleman, 312 Kan. at 122-24;
Hurst, 202 So. 3d at 63-66. Nor does K.S.A. 2020 Supp. 60-1507. While the Legislature
provided that 60-1507 motions could challenge the constitutionality of a sentence, it also
provided that, if the movant did not meet the one-year limitation period, he or she must
show manifest injustice to proceed. This signals that an unconstitutional sentence does
not always equate to manifest injustice. And the Legislature signaled an intent that an
Alleyne violation did not trigger the fail-safe of K.S.A. 2020 Supp. 21-6628.

The Legislature sent this signal after the United States Supreme Court issued its
Alleyne opinion and the Governor called a special session to address the hard 50
sentencing statutes. The Legislature acted expeditiously to assure courts could
constitutionally impose hard 50 sentences in pending criminal cases. The Legislature's
14
staff advised the Legislature that the Alleyne rule did not apply to sentences final before
the Alleyne decision. See Preliminary Report of the 2013 Special Committee on
Judiciary, 3; Revisor Office's Memorandum on the Potential Impact of Alleyne v. United
States on Kansas Law (Aug. 16, 2013), 4. And the Legislature took no action to provide
relief in those cases. While legislative inaction is not always indicative of legislative
intent, see State v. Quested, 302 Kan. 262, 279, 352 P.3d 553 (2015), a failure to act
when addressing the subject matter provides some indication the Legislature did not
intend there to be relief.

Appleby failed to establish exceptional circumstances or manifest injustice as
necessary to allow a court to have jurisdiction to grant him relief under K.S.A. 2020
Supp. 21-6628 based on Alleyne.

Appleby makes an argument that could avoid or change the Kirtdoll holding,
however. He contends his request for relief is based not on Alleyne but on Apprendi,
which the United States Supreme Court decided before he was sentenced. He asserts we
need not apply Alleyne retroactively to provide him relief.

His argument requires a conclusion that Alleyne was a mere extension of
Apprendi. But, as discussed in Coleman, it was not. See Coleman, 312 Kan. at 117-19.
The United States Supreme Court itself, after deciding Apprendi, affirmed a sentence that
imposed a mandatory minimum based on judicial fact-finding—exactly the circumstance
here. Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002).
Harris remained the law until the Court overturned it in Alleyne. See Alleyne, 570 U.S. at
116. Had Harris merely been an extension of Apprendi, the Court could have simply
distinguished it in Alleyne. Instead, it overruled the holding and thus changed the law.
Appleby's argument is thus unpersuasive.
15
 In conclusion, while I now depart from one portion of the analysis in Coleman, I
still conclude K.S.A. 2020 Supp. 21-6628(c) did not require the district court to vacate
Appleby's hard 50 life sentence.

I therefore concur in the result.

WILSON and STANDRIDGE, JJ., join the foregoing concurrence.

16