IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,211
STATE OF KANSAS,
Appellee,
v.
ROBERT LEWIS JACKSON,
Appellant.
SYLLABUS BY THE COURT
K.S.A. 1993 Supp. 21-4624(1)'s requirement that the State must file and serve "at
the time of arraignment" a written notice of intent to seek a hard 40 sentence when a
defendant is charged with murder in the first degree is satisfied when the State files and
serves the notice before the arraignment hearing.
Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed October 8, 2021.
Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, was on the briefs for appellant.
Kurtis Wiard, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief
for appellee.
The opinion of the court was delivered by
BILES, J.: Robert L. Jackson appeals a district court's decision denying his motion
to correct an illegal sentence. He argues the hard 40 life sentence he received for a 1994
Topeka murder could not be imposed because the State did not timely file and serve its
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notice of intent to seek that penalty at the time of his arraignment. See K.S.A. 1993 Supp.
21-4624(1). Jackson correctly notes the State filed and served the required notice 50 days
before his arraignment, but we reject his claim because our caselaw holds the statute is
satisfied when the State files and serves this notice before arraignment. See State v.
Richardson, 256 Kan. 69, 77,
883 P.2d 1107 (1994). We affirm the district court.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Jackson of two counts of first-degree murder and six additional
offenses, all arising from a 1994 Topeka nightclub shooting. See State v. Jackson, 262
Kan. 119, 120,
936 P.2d 761 (1997). The jury recommended a hard 40 sentence for one
of the first-degree murders after finding Jackson "knowingly or purposely killed or
created a risk of death to more than one person," that he killed the victim "in an
especially heinous, atrocious or cruel manner," and that the aggravating circumstances
were not outweighed by mitigators. The jury recommended a hard 15 life sentence for the
other first-degree murder. The trial court imposed the recommended sentences to run
consecutive and ordered consecutive prison terms for the remaining felony convictions.
Jackson,
262 Kan. at 120.
In 2019, Jackson filed a pro se motion to correct an illegal sentence. He claimed
the hard 40 sentence must be vacated because the State did not provide the proper notice
of its intent to seek that penalty as required by law. He premised this argument on K.S.A.
1993 Supp. 21-4624(1). It provided that the State was to file and serve its notice "at the
time of arraignment" if the State intended to seek a hard 40 sentence for first-degree
murder. The statute also noted that the defendant "shall be sentenced as otherwise
provided by law, and no mandatory term of imprisonment shall be imposed hereunder" if
proper notice was not given. In Jackson's murder case, the parties agree the State filed
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and served the notice on May 5, 1994—several weeks before the June 24, 1994
arraignment.
The district court conducted a non-evidentiary hearing on Jackson's current motion
to correct an illegal sentence. Jackson's counsel argued the May 5, 1994 notice did not
strictly comply with the statutory language. The State countered that the notice was
sufficient and would not render the sentence illegal even if the early notice fell short of
strict adherence because that would not deprive the sentencing court of jurisdiction or
render the sentence ambiguous. The court denied the motion, noting the caselaw permits
notice at or before arraignment. Jackson appealed.
Jurisdiction is proper. See K.S.A. 2020 Supp. 22-3601(b)(3); State v. Sims, 294
Kan. 821, 823-24,
280 P.3d 780 (2012) (holding Supreme Court has jurisdiction over
motion to correct an illegal sentence filed in a case in which defendant received a life
sentence).
STANDARD OF REVIEW
An appellate court reviews a district court's summary denial of a motion to correct
an illegal sentence de novo because the appellate court has the same access to the motion,
records, and files as the district court. Whether a sentence is illegal is a question of law
subject to unlimited review. State v. R. H., 313 Kan. 699, 701,
490 P.3d 1157 (2021).
DISCUSSION
As mentioned, Jackson's motion relies on K.S.A. 1993 Supp. 21-4624(1). It states:
"If a defendant is charged with murder in the first degree, the county or district
attorney shall file written notice if such attorney intends, upon conviction or adjudication
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of guilt of the defendant, to request a separate sentencing proceeding to determine
whether the defendant should be required to serve a mandatory term of imprisonment of
40 years. Such notice shall be filed with the court and served on the defendant or the
defendant's attorney at the time of arraignment. If such notice is not filed and served as
required by this subsection, the county or district attorney may not request such a
sentencing proceeding and the defendant, if convicted of murder in the first degree, shall
be sentenced as otherwise provided by law, and no mandatory term of imprisonment shall
be imposed hereunder." (Emphasis added.)
"If faced with a hard 40 prospect, a defendant should be aware of it and be able to
plan his or her strategy accordingly. Notice at the time of arraignment serves this
purpose." State v. Bailey, 251 Kan. 156, 169,
834 P.2d 342 (1992). Notice is mandatory,
and the failure to comply strictly with the statute requires vacating the sentence. State v.
Duke,
263 Kan. 193, 197,
946 P.2d 1375 (1997).
In State v. Deavers, 252 Kan. 149, 168,
843 P.2d 695 (1992), the court vacated the
defendant's hard 40 sentence because the State's service was "beyond the requirement of
the statute," rejecting the State's argument that strict compliance should be excused when
the prosecutor provided the notice two hours and 20 minutes after the arraignment. In
State v. Peckham,
255 Kan. 310, 316,
875 P.2d 257 (1994), disapproved in part on other
grounds by State v. Marsh,
278 Kan. 520,
102 P.3d 445 (2004), rev'd and remanded
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U.S. 163,
126 S. Ct. 2516,
165 L. Ed. 2d 429 (2006), the court held the "at the time of
arraignment" requirement applied to both service and filing. There, the State served its
notice on the defendant at arraignment but did not file it with the court until the next day.
The Peckham court vacated the defendant's hard 40 sentence.
255 Kan. at 318.
But unlike a late notice or filing, one filed and served before arraignment has been
held to satisfy the statute. Richardson, 256 Kan. at 77-78. In that case, the State filed and
served the notice a month before the arraignment, so the defendant argued this did not
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meet the statutory requirement, relying on Deavers. But the Richardson court upheld the
hard 40 sentence, noting the "rationale in Deavers . . . would not require that the notice in
the present case be invalidated unless 'at the time of arraignment' . . . is construed to mean
'at the arraignment.'" 256 Kan. at 77. The Richardson court rejected this construction as
"hyperliteral."
256 Kan. at 77. The court noted that
"notice filed and served before the time of arraignment serves the purpose of alerting a
defendant to a hard-40 prospect so that he or she may plan strategy accordingly. And it
may be said that no prejudice to a defendant may be shown and no legislative purpose
may be shown to have been defeated or impaired by notice filed or served before the time
of arraignment." Richardson, 256 Kan. at 76-77.
Jackson argues Richardson was not decided until after his 1994 arraignment and
substantially changed the strict compliance standard applied in Deavers and Peckham. He
suggests applying Richardson would have a prohibited "ex post facto effect." There are at
least three problems with this contention.
First, any suggestion Richardson abandoned a previous strict-compliance standard
misconstrues the caselaw. Richardson simply interpreted the statutory standard the State
must strictly comply with to conclude that filing and service before the arraignment met
the statutory requirement that "notice shall be filed with the court and served on the
defendant or the defendant's attorney at the time of arraignment." Richardson, 256 Kan.
at 77-78.
Second, even if Richardson changed the law, it was decided while Jackson's case
was still at the district court. "The general rule . . . is that a change in the law acts
prospectively, applying only 'to all cases, state or federal, pending on direct review or not
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yet final.'" State v. Mitchell, 297 Kan. 118, 124-25,
298 P.3d 349 (2013). Jackson is
bound by Richardson's interpretation under our general rule.
Third, Richardson has no ex post facto effect on Jackson. State v. Campbell, 307
Kan. 130, 135,
407 P.3d 240 (2017) ("Relying on statutes in effect at the time a crime is
committed eliminates the need for an ex post facto analysis."). The Campbell court held
no ex post facto problem arose when the lower court rejected a motion to correct an
illegal sentence based on a recently decided case that overruled an earlier decision about
the prior-crime classification for criminal history purposes. And this was true even
though the overruling decision effectively subjected the defendant to a more severe
sentence as compared to the result the movant might have obtained under the earlier
decision. The statute interpreted in the overruling decision was the same statute in effect
when the defendant committed the crimes, and not a law "that increased the potential
punishment after [the defendant's] crimes were committed." 307 Kan. at 136.
Richardson's application in Jackson's case raises no ex post facto problem.
Affirmed.
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