State v. Campbell

• Decision Date: 31 January 2005
• Docket Number: No. 88,656.,654,88
• Citation: 106 P.3d 1129,279 Kan. 1
• Parties: STATE OF KANSAS, Appellee, v. JIMMY W. CAMPBELL, Appellant.
• Court: Kansas Supreme Court

279 Kan. 1

106 P.3d 1129

STATE OF KANSAS, Appellee, v. JIMMY W. CAMPBELL, Appellant.

Nos. 88,654, 88,656.

Supreme Court of Kansas.

Modified opinion filed January 31, 2005.

Rick Kittel, assistant appellate defender, argued the cause and was on the brief for appellant.

Thomas R. Stanton, deputy district attorney, argued the cause, and Keith E. Schroeder, district attorney, and Phill Kline, attorney general, were with him on the briefs for appellee.

Angela M. Wilson, assistant district attorney, and Gerald W. Woolwine, county attorney, were on the brief for amicus curiae Kansas County and District Attorneys Association.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Jimmy W. Campbell was charged in case No. 00CR779 with one count of possession of methamphetamine on September 11, 2000. In a separate case, No. 01CR147, he was charged with one count each of manufacture of methamphetamine, unlawful possession of ephedrine with intent to manufacture methamphetamine, possession of methamphetamine with intent to sell, possession of drug paraphernalia with intent to use it to manufacture a controlled substance, and possession of marijuana on December 8, 2000. The two cases were consolidated for a bench trial on stipulated facts, and Campbell was convicted on all 6 counts. He was sentenced to 120 months' imprisonment for possession of ephedrine in violation of K.S.A. 65-7006, and his controlling sentence was 120 months. Campbell appealed the two cases together to the Court of Appeals, which considered them as one appeal and affirmed the convictions and sentences in State v. Campbell, 31 Kan. App. 2d 1123, 78 P.3d 1123 (2003), declining to follow State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). Campbell petitioned this court for review of several issues, including sentencing. This court granted Campbell's petition for review only on the sentencing for possession of ephedrine in violation of K.S.A. 65-7006(a).

The narrow issue before us in this appeal is whether Campbell was properly sentenced for a severity level 1 felony for possession of ephedrine with intent to manufacture methamphetamine.

The facts were not in issue in the trial court or the Court of Appeals. In its opinion, the Court of Appeals stated:

"The stipulation of facts . . . sets forth the following:

`4. The investigating officers in this case would testify consistently with their prior testimony at the preliminary hearing and the hearing on the motion to suppress held July 30, 2001, and said testimony is hereby incorporated by reference. A summary of the evidence as it would be presented by the investigating officers and witnesses in this case is as follows:

`a. On the 8th day of December, 2000, officers of the Hutchinson Police Department obtained a search warrant for 16 West 10th, Apt. 4, Hutchinson, Reno County, Kansas. Before executing the warrant, the officers discussed the entry and it was made clear to Sgt. McClarty of the police department that the apartment in question was the apartment at the top of the stairs to the left. Sgt. McClarty stated in his police report of the incident that Sgt. Fesler had informed him that officers were supposed to go in the front doors upstairs and enter the apartment to the left. At approximately 9:28 p.m. on December 8, 2000, Sgt. McClarty, Sgt. Fesler, Officer Robertson and Officer Harcrow executed the search warrant. Upon arrival at the top of the stairs, Sgt. McClarty observed two females in the doorway of apartment # 4, and apartment # 4 was to the right at the top of the stairs. Sgt. McClarty saw the doorway to the left standing open, and that apartment was later identified as apartment # 3. Sgt. McClarty saw that there was no number visible at the top of the stairs at apartment # 3. . . .'

....

"Subparagraph `e' then sets forth a detailed page of items seized from the apartment claimed to be utilized in the manufacture of methamphetamine; paragraphs 5 and 6 stipulate to a proper chain of custody; paragraph 7 stipulates to the testing of items as being marijuana, pseudoephedrine, methanol, and methamphetamine; paragraph 8 stipulates that Campbell had previously been convicted of possession of marijuana; and paragraph 9 states:

`9. The evidence in this case is sufficient for this Court to determine in its discretion a verdict on the following charges: manufacture of methamphetamine, a level one drug felony pursuant to K.S.A. 2000 Supp. 65-4159; unlawful possession of ephedrine or pseudoephedrine, a level one drug felony pursuant to K.S.A. 2000 Supp. 65-7006; possession of methamphetamine with the intent to sell, a level three drug felony pursuant to K.S.A. 2000 Supp. 65-4161; possession of drug paraphernalia with intent to manufacture methamphetamine, a level four drug felony pursuant to K.S.A. 2000 Supp. 65-4152(a)(3); and possession of marijuana, a level four drug felony pursuant to K.S.A. 2000 Supp. 65-4162(a)(3).'" 31 Kan. App. 2d at 1125-26.

Campbell was charged and convicted of unlawful possession of ephedrine with the intent to manufacture methamphetamine in violation of K.S.A. 65-7006(a). He was sentenced pursuant to K.S.A. 65-7006(d).

K.S.A. 65-7006 provides in part:

"(a) It shall be unlawful for any person to possess ephedrine, pseudoephedrine... or phenylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product to manufacture a controlled substance.

....

"(d) A violation of this section shall be a drug severity level 1 felony."

For Campbell's criminal history category of I, the sentencing range for a drug severity level 1 felony is 138 to 154 months. The sentencing judge granted a durational departure to 120 months. Campbell contends that he was illegally sentenced for possession of ephedrine as a drug severity level 1 felony and that he can be sentenced only under the lesser penalty provision of K.S.A. 65-4152. K.S.A. 65-4152(a) provides: "No person shall . . . possess with intent to use . . . (3) any drug paraphernalia to . . . manufacture or compound . . . a controlled substance in violation of the uniform controlled substances act." The penalty for violation of 65-4152(a)(3) is a drug severity level 4 felony. K.S.A. 65-4152(c). For Campbell's criminal history category, the sentencing range for a drug severity level 4 felony is 10 to 12 months. Drug paraphernalia is defined in K.S.A. 65-4150(c) as including "products and materials of any kind which are used or intended for use in . . . manufacturing . . . a controlled substance."

Campbell relies on Frazier, 30 Kan. App. 2d 398, in arguing that possession of ephedrine with intent to use it to manufacture a controlled substance in violation of K.S.A. 65-7006(a) and possession of drug paraphernalia with intent to use it to manufacture a controlled substance in violation of K.S.A. 65-4152(a)(3) are identical offenses. When two offenses are identical, the defendant must be sentenced under the statute carrying a lesser penalty. State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989).

With regard to Campbell's sentence under K.S.A. 65-7006, the Court of Appeals stated:

"The State makes a compelling argument that Frazier was wrongly decided, in that the legislative intent was not followed, that 65-7006 is the more specific statute, and that the elements of the two crimes are in fact different. In addition, since Frazier was announced, we considered in Wilson v. State, 31 Kan. App. 2d 728, 71 P.3d 1180, rev. denied 276 Kan. 974 (2003), whether to apply the Frazier decision retroactively, and we declined to do so. Judge Knudson's concurring opinion in Wilson expressed dissatisfaction with the Frazier result and suggested it was wrongly decided. Judge Knudson's concurrence suggested the initial sentence imposed by the trial court in Frazier was not an illegal sentence, that K.S.A. 65-4152(a)(3) and K.S.A. 1999 Supp. 65-7006(a) were not identical offenses, and the extension of the holdings of State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), and State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), to the circumstances of Frazier was unwarranted. 31 Kan. App. 2d at 734-36.

"For the above stated reasons, we will separately consider whether Campbell was properly sentenced. This involves the interpretation of statutes under which our appellate review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). In doing so, we must follow the rules of statutory construction which require us to interpret a statute to give the effect intended by the legislature. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Ordinary words are to be given ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English is in it, Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984), and we must read the statutes so as to give effect to every part thereof, KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).

"In this case because there is a clear difference of opinion as to which statute generally deals with the issue and which deals with a certain phase, the holding of State v. Reed, 254 Kan. 52, Syl. ¶ 1, 865 P.2d 191 (1993), is applicable and states: `When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intended to make the general act controlling.'

"The issue we face requires us to construe the specific language of two statutes. It is helpful to look to the legislative history and language of each." 31 Kan. App. 2d at 1133-34.

The court then discussed the legislative history relative to the statutes and concluded:

"It is clear that reducing the severity level was considered, rejected, and the legislative intent is to penalize the possession and intended

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