Bryant v. State, 91,113.

• Decision Date: 02 September 2005
• Docket Number: No. 91,113.,91,113.
• Parties: Jimmie R. BRYANT, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 685

118 P.3d 685

Jimmie R. BRYANT, Appellant, v. STATE of Kansas, Appellee.

No. 91,113.

Supreme Court of Kansas.

September 2, 2005.

Randall L. Hodgkinson, deputy appellate defender, argued the cause and was on the brief for appellant.

Ernest H. Richardson, acting county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by ALLEGRUCCI, J.:

Jimmie R. Bryant pled guilty in February 2002 to one count of attempted manufacture of methamphetamine, a drug severity level 1 offense. He was sentenced to 81 months' imprisonment. There was no direct appeal. In May 2003 Bryant filed a K.S.A. 60-1507 motion seeking to have his sentence vacated and the case remanded for resentencing pursuant to State v. Frazier, 30 Kan.App.2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). The district court denied the motion. The Court of Appeals affirmed. This court granted defendant's petition for review to consider the single question of whether a defendant may assert the rule from State v. McAdam, 277 Kan. 136, Syl. ¶ 3, 83 P.3d 161 (2004), as to identical offenses, in a collateral challenge claiming that the defendant could only be sentenced to the lesser penalty.

Bryant pled guilty to one count of attempt to manufacture methamphetamine in violation of K.S.A. 65-4159(b)(1), a severity level 1 drug felony. Pursuant to the plea agreement, the State dismissed four remaining charges: (1) possession of pseudoephedrine/ephedrine in violation of K.S.A. 65-7006, a severity level 1 drug felony; (2) possession of methamphetamine in violation of K.S.A. 65-4160(a), a severity level 4 drug felony; (3) possession of drug paraphernalia in violation of K.S.A. 65-4152(a)(3), a severity level 4 drug felony; and (4) criminal possession of a firearm in violation of K.S.A. 21-4204(a)(3), a severity level 8 nonperson felony. Following the plea agreement, the State and defendant jointly then sought a downward departure in the sentence from the presumptive standard of 162 months' to 81 months' imprisonment. After acknowledging the plea agreement, the district court judge sentenced defendant to 81 months' imprisonment.

Bryant's 60-1507 motion seeks to have his sentence vacated and the matter remanded for resentencing pursuant to Frazier, 30 Kan.App.2d 398, 42 P.3d 188. The trial court denied relief. Bryant appealed to the Court of Appeals where he argued that McAdam controlled and sought to have the trial court's decision reversed and the matter remanded for resentencing to a severity level 3 drug felony. The Court of Appeals affirmed. Bryant v. State, No. 91,113, 2004 WL 1683127, unpublished opinion filed July 23, 2004.

In Frazier, a direct appeal, the Court of Appeals had concluded that possession of ephedrine or pseudoephedrine, K.S.A. 65-7006(a), and possession of drug paraphernalia, K.S.A. 65-4152(a)(3), were identical offenses prohibiting possession of ephedrine or pseudoephedrine for use in the manufacture of a controlled substance. 30 Kan.App.2d at 404-05, 42 P.3d 188. The Court of Appeals vacated Frazier's severity level 1 felony sentence and remanded to the district court with directions to impose a sentence for a drug severity level 4 felony.

In McAdam, also a direct appeal, this court had held that the elements of conspiracy to manufacture methamphetamine under K.S.A. 65-4159(a) are identical in the context of methamphetamine to the elements of 65-4161(a), the compounding of illegal substances, and therefore the defendant could only be sentenced to the less severe penalty of the two statutes. The court then vacated McAdam's severity level 1 drug felony sentence and remanded the matter to the district court with directions to impose a sentence for a severity level 3 drug felony as provided for with a violation of 65-4161(a). 277 Kan. at 146-47, 83 P.3d 161.

In the present case, the Court of Appeals ordered the parties to brief the question whether the reasoning in Wilson v. State, 31 Kan.App.2d 728, 71 P.3d 1180, rev. denied 276 Kan. 974 (2003), applied. In Wilson, the Court of Appeals held that Frazier "will not be retroactively applied in a K.S.A. 60-1507 collateral attack of an unappealed conviction after a favorable plea agreement." 31 Kan.App.2d 728, 71 P.3d 1180, Syl.

The Court of Appeals determined that the facts of the present case were analogous to the facts in Wilson, "where the defendant sought to have his sentence reduced from a level 1 drug felony for possession of ephedrine/pseudoephedrine to a level 4 drug felony for possession of drug paraphernalia citing State v. Frazier, 30 Kan.App.2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002)." Slip op. at 4. Continuing its comparison of the present case to Wilson, the Court of Appeals stated:

"Subsequently, in Wilson, the defendant, who had entered a no contest plea to possession of ephedrine/pseudoephedrine under K.S.A. 65-7006(a), filed a K.S.A. 60-1507 [a collateral attack] motion arguing his sentence was illegal under Frazier. This court disagreed and held that where a defendant enters a no contest plea to take advantage of a favorable plea agreement and does not file a direct appeal, he or she cannot collaterally challenge the sentence imposed. 31 Kan.App.2d at 733-34, 71 P.3d 1180." Slip op. at 5.

The Court of Appeals then noted:

"Here, the facts are substantially the same procedurally as those in Wilson. First, the defendant entered into a plea agreement which resulted in the State dismissing several other charges. In addition, the State joined the defendant in his motion for a downward durational departure. The sentencing court, on September 2, 2002, accepted the plea and imposed the stipulated sentence of 81 months. No direct appeal was taken. Instead, almost nine months later, the defendant filed a K.S.A. 60-1507 motion challenging his sentence." Slip op. at 5-6.

The Court of Appeals then stated:

"It is settled law that state courts are under no constitutional duty to apply their criminal decisions retroactively. See Wilson, 31 Kan.App.2d at 733, 71 P.3d 1180. Here, the defendant's sentence was final before McAdam was decided on January 30, 2004. There is no claim that a new constitutional rule of criminal procedure is at issue, and no one is arguing that the McAdam decision stands for the proposition that the defendant could not be convicted of the crime as set out in the plea agreement. We understand there is no right to a lesser sentence when two crimes have the same elements under the United States Constitution. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). . . .

"The defendant's only right to relief would arise from our Supreme Court's decisions in State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), and State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987). However, we understand that both Nunn and Clements were direct appeals and not collateral attacks as is the case here. Neither of those decisions control the question here.

"As in Wilson, we decline to hold that McAdam applies retroactively to those cases on collateral review because to do so would give the defendant the double benefit of a favorable plea agreement, with a significant downward durational departure and then the benefit of an issue he failed to raise at the trial court or on direct appeal. Similarly, the defendant cannot argue his sentence should have been for a severity level 4 felony [under Frazier] for the same reason." Slip op. at 6-7.

In response to the Court of Appeals' order, Bryant now contends to this court that Wilson should not be applied because its reasoning was erroneously drawn from Easterwood v. State, 273 Kan. 361, 44 P.3d 1209, cert. denied 537 U.S. 951, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002). In Easterwood, the principal question was whether State v. Sophophone, 270 Kan. 703, 19 P.3d 70 (2001), should be applied so that Easterwood, who had been sentenced in 1996, could have his guilty pleas set aside in a collateral attack. In Sophophone's direct appeal, this court held that the killing of his co-felon by a law enforcement officer as the co-felon was fleeing from an aggravated burglary in which both felons had participated did not support Sophophone's conviction for felony murder. 270 Kan. at 713, 19 P.3d 70. "The facts in Sophophone were almost identical to Easterwood's situation" with "the deaths in both cases result[ing] from the lawful act of a law enforcement officer." 273 Kan. at 367-68, 44 P.3d 1209. In reaching its conclusion that Sophophone should not be applied, the Easterwood court reasoned:

"Felony murder clearly existed when Easterwood pled. A death had occurred during a covered felony. Easterwood was a primary actor in the aggravated robbery and kidnapping, which was necessary to invoke the felony-murder doctrine. He admitted in his plea colloquy that he was guilty. He asked the court to accept the plea agreement. He failed to appeal or challenge the court's acceptance of his plea. We will not now retroactively decide that his plea is void because of a later favorable ruling on the precise issue he voluntarily declined to challenge." 273 Kan. at 382-83, 44 P.3d 1209.

In a supplemental brief, Bryant now contends that Easterwood was an unsuitable source for Wilson's reasoning because Easterwood was a collateral attack on convictions and Wilson's collateral attack was on his sentence. Bryant argues that Easterwood had waived his right to collaterally attack his conviction by pleading guilty, but that Bryant could attack his illegal sentence at any time pursuant to K.S.A. 22-3504. He now asserts that neither the State nor a defendant can stipulate to an illegal sentence or waive an illegal sentence. We note that this court, in State v. Barnes, 278 Kan. 121, 124, 92 P.3d 578 (2004), squarely faced the question whether the defendant's severity level 1 drug felony sentence for manufacture of methamphetamine under K.S.A....