State v. Barnes

• Decision Date: 25 June 2004
• Docket Number: No. 89,628.,89,628.
• Citation: 278 Kan. 121,92 P.3d 578
• Parties: STATE OF KANSAS, Appellee, v. THERESA A. BARNES, Appellant.
• Court: Kansas Supreme Court

278 Kan. 121

92 P.3d 578

STATE OF KANSAS, Appellee, v. THERESA A. BARNES, Appellant.

No. 89,628.

Supreme Court of Kansas.

Opinion filed June 25, 2004.

Randall L. Hodgkinson, deputy appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with him on the briefs for appellant.

Kim W. Cudney, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the briefs for appellee.

The opinion was delivered by

LUCKERT, J.:

Theresa Barnes pled guilty to aiding and abetting the manufacture of methamphetamine, possession of methamphetamine, possession of methamphetamine with intent to sell, possession of drug paraphernalia, and endangering a child. In State v. Barnes, No. 89,628, unpublished opinion filed November 7, 2003, the Court of Appeals upheld her sentences, holding in part that there was no error in sentencing Barnes for aiding and abetting the manufacture of methamphetamine as a drug severity level 1 felony pursuant to K.S.A. 65-4159(a) rather than as a drug severity level 3 felony pursuant to K.S.A. 65-4161(a). This court granted Barnes' petition for review on the sole issue of whether State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), applies.

Facts

In December 2001, Barnes was arrested for various drug-related offenses following the execution of a search warrant at her home. Pursuant to a plea agreement in which other charges were dismissed, Barnes pled guilty and was sentenced to a controlling term of 146 months' imprisonment based upon her most serious conviction of aiding and abetting the manufacture of methamphetamine; all other sentences were ordered to run concurrently.

On direct appeal, Barnes raised several sentencing issues. The Court of Appeals held that although the offenses of manufacture of methamphetamine under K.S.A. 65-4159(a) and compounding a stimulant under K.S.A. 65-4161 contained identical elements, the sentencing court correctly sentenced Barnes for a drug severity level 1 felony under K.S.A. 65-4159(a) as the more specific provision. The Court of Appeals also held that the lesser misdemeanor penalty under K.S.A. 65-4127c did not apply and that the sentencing court did not err in imposing a drug severity level 4 felony sentence for Barnes' conviction of possession of drug paraphernalia.

This court granted Barnes' petition for review as to the first issue only and directed the State to show cause why McAdam, 277 Kan. 136, should not apply to Barnes' case. Both the State and Barnes responded to the show cause order; their arguments will be discussed below.

Does McAdam Require that Barnes be Resentenced for a Drug Severity Level 3 Felony for her Conviction of Aiding and Abetting the Manufacture of Methamphetamine?

In McAdam, the defendant was convicted of conspiracy to unlawfully manufacture methamphetamine and was sentenced for a drug severity level 1 felony pursuant to K.S.A. 65-4159(a). This court compared K.S.A. 65-4159(a), which makes manufacturing methamphetamine a drug severity level 1 felony, with K.S.A. 65-4161(a), which makes compounding a stimulant a drug severity level 3 felony. The court found the offenses were identical under the facts of the case; therefore, the defendant could be sentenced only under the lesser penalty provisions of K.S.A. 65-4161(a). 277 Kan. at 142-47.

The State contends that McAdam does not control Barnes' case because Barnes received the benefit of a favorable plea agreement. Barnes argues that her guilty plea is of no significance because, under McAdam, the imposition of a drug severity level 1 felony sentence was an illegal sentence. She argues that an illegal sentence must be vacated even when entered following a guilty plea, citing State v. Santos-Garza, 276 Kan. 27, 72 P.3d 560 (2003), and State v. Cullen, 275 Kan. 56, 60 P.3d 933 (2003). However, the sentences in Santos-Garza and Cullen were illegal because they were based on an unconstitutional sentencing scheme. See Santos-Garza, 276 Kan. 27, Syl.; Cullen, 275 Kan. 56, Syl. ¶ 1. The sentence in McAdam was not unconstitutional. See United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979) (when defendant sentenced under statute with greater penalty even though same conduct violated similar statute with lesser penalty, no violations of Equal Protection or Due Process Clauses of United States Constitution). Rather, the problem when two statutes have identical elements but carry different penalties is that "`"the decision as to which penalty to seek cannot be a matter of prosecutorial whimsy in charging."'" McAdam, 277 Kan. at 145 (quoting State v. Clements, 241 Kan. 77, 83, 734 P.2d 1096 [1987]).

Like Barnes, McAdam failed to raise the sentencing issue before the trial court. While the Court of Appeals chose to address the issue based upon McAdam's assertion that his sentence was illegal, on petition for review this court did not address the illegal sentence issue, merely stating that we were reviewing the Court of Appeals' decision. 277 Kan. at 142. See Supreme Court Rule 8.03(g)(1) (2003 Kan. Ct. Rules Annot. 58).

McAdam is grounded upon Clements and State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989). Nunn, 244 Kan. at 229, adopts the holding in Clements that "`[a]s to identical offenses, a defendant can only be sentenced under the lesser penalty.' 241 Kan. at 83." Neither case holds the underlying sentence to be illegal.

Thus, we must examine our prior interpretation of the term "illegal sentence" as that phrase is used in K.S.A. 22-3504(1) which allows correction of an illegal sentence at any time:

"We have defined an illegal sentence as a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served [Citations omitted.]" State v. Duke, 263 Kan. 193, 194, 946 P.2d 1375 (1997).

There is no question that the district court had jurisdiction to find Barnes guilty and impose sentence. Further, Barnes' sentence conformed to K.S.A. 65-4159 as to both its character and term of punishment. Her sentence was not ambiguous in the time or manner in which it was to be served. Thus, Barnes' sentence was not "illegal."

The conclusion that Barnes' sentence was not illegal does not, however, deprive this court of jurisdiction to hear Barnes' appeal because K.S.A. 21-4721(e) provides: "In any appeal, the appellate court may review a claim that . . . (3) the sentencing court erred in ranking the crime severity level of the current crime."

Nor does the conclusion that the sentence is not illegal end our analysis of whether Barnes is entitled to relief. Barnes argues that McAdam should apply to any appeal pending at the time of the decision. In support, she cites State v. Hood, 242 Kan. 115, 744 P.2d 816 (1987). Hood applied the new constitutional rule from Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), to the defendant's case which was pending on direct appeal and remanded for the trial court to determine whether the Batson factors were met. 242 Kan. at 117-23. See also State v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001) (applying new constitutional sentencing rule to cases pending on direct appeal). However, as mentioned above, McAdam did not involve a constitutional rule.

Another theory for applying McAdam is the rule that overruling decisions are applied retroactively to all similar cases pending at the time of the decision. State v. Waterberry, 248 Kan. 169, 172, 804 P.2d 1000 (1991) (expanding application of State v. Hall, 246 Kan. 728, 793 P.2d 737 [1990], analysis regarding claims of defective information to all cases pending on date of Hall opinion).

However, this court has refused to apply this general rule when the prior decision was not an "overruling" decision. In State v. Alford, 257 Kan. 830, 839-40, 896 P.2d 1059 (1995), the defendant sought to have the ruling in State v. Willis, 254 Kan. 119, 130-31, 864 P.2d 1198 (1993), apply because his case was pending on direct appeal when Willis was decided. Willis added a clarifying phrase to the PIK Crim. 3d 56.01-B sentencing instruction regarding whether a crime is committed in an especially heinous, atrocious, or cruel manner. Willis stated that the new instruction should be used in all cases on appeal of the date of the opinion where the vagueness of the instruction had been raised as an issue on appeal. However, State v. Duke, 256 Kan. 703, 717, 887 P.2d 110 (1994), modified the statement in Willis and held that the new instruction should be used only in cases where the vagueness of the instruction had been raised in both the trial court and as an issue on appeal. See Alford, 257 Kan. at 839. The Alford court found that Willis was not an overruling decision because it merely supplemented the existing sentencing instruction. Since the defendant had failed to raise the vagueness of the instruction before the trial court, the Alford court refused to consider the defendant's argument on appeal. 257 Kan. at 840.

Similarly, McAdam is not an overruling decision in the sense that it did not expressly overrule prior case law and did not hold any law unconstitutional. While McAdam did reverse the relevant portion of the Court of Appeals' earlier decision, since that decision never became final as a result of the petition for review being granted, it cannot be said that the Court of Appeals was overruled. There were also several unpublished Court of Appeals decisions which reached a different result. See State v. Scott, No. 89,945, unpublished opinion filed January 16, 2004, and State v. Ramsey, No. 89,856, unpublished opinion filed January 9, 2004. However, petitions for review are pending in those cases. Thus, Barnes is not entitled to relief under the theory that overruling cases are retroactively applied to all...