State v. Harp

• Decision Date: 27 April 2007
• Docket Number: No. 94,322.,94,322.
• Citation: 156 P.3d 1268
• Parties: STATE of Kansas, Appellee, v. Gary W. HARP, Sr., Appellant.
• Court: Kansas Supreme Court

156 P.3d 1268

STATE of Kansas, Appellee, v. Gary W. HARP, Sr., Appellant.

No. 94,322.

Supreme Court of Kansas.

April 27, 2007.

Kent A. Roth, of Roth Law Office, of Ellinwood, was on the brief for appellant.

Chris Oakley, county attorney, and Phill Kline, attorney general, was with her on the brief for appellee.

The opinion was delivered by

LUCKERT, J.:

Gary W. Harp, Sr., who seeks resentencing pursuant to State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), argues for reversal of the Court of Appeals' and district court's determinations that he is not entitled to relief pursuant to a motion to correct an illegal sentence and is not entitled to take an out-of-time appeal pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). We conclude that Harp is not entitled to relief pursuant to a motion to correct an illegal sentence but is entitled to file an appeal out of time.

Harp pled guilty to one count of manufacture of methamphetamine as a severity level 1 drug felony in January 2002. On April 17, 2002, Harp was sentenced to 96 months in prison. He did not file a direct appeal.

In October 2003, Harp filed a pro se K.S.A. 60-1507 motion in which he argued that he should have been convicted of a severity level 2 drug felony instead of a severity level 1 drug felony. This motion was later voluntarily dismissed.

Then, on April 1, 2004, Harp filed another pro se motion-this time a motion to correct an illegal sentence. This motion was filed 3 months after the decision in McAdam. In McAdam, this court held that the offense of manufacturing methamphetamine under K.S.A. 65-4159(a), a severity level 1 drug felony, was identical to the offense of compounding methamphetamine under K.S.A. 65-4161(a), a severity level 3 drug felony. Accordingly, by application of the identical offense sentencing doctrine, the defendant could be sentenced only under the lesser penalty provision. This court vacated McAdam's sentence for violation of K.S.A. 65-4159(a) and remanded for resentencing him to a severity level 3 drug felony for a violation of K.S.A. 65-4161(a).

Harp seeks similar relief. In response to his motion, the State filed a "Motion to Dismiss Defendant's 60-1507 Motion," arguing that, because Harp's April 2004 motion was filed more than 10 days after the filing of the sentencing journal entry, it should be treated as a K.S.A. 60-1507 motion. The State basically argued that the district court was not obligated to hear a successive motion on the same matter and asked the court to dismiss for lack of jurisdiction.

The district court held a hearing at which Harp was represented by counsel. After listening to the parties' arguments, the court denied Harp's motion to correct an illegal sentence "on the basis that he received a beneficial plea agreement and failed to file a direct appeal and therefore is unable to attack his sentence collaterally."

On direct appeal of the district court's denial of Harp's motion to correct an illegal sentence, the Court of Appeals rejected Harp's contention that the classification of his conviction should be changed from a severity level 1 to a severity level 3 drug felony. State v. Harp, No. 94,322, 124 P.3d 521 unpublished opinion filed December 16, 2005, 2005 WL 3455824 at *2 (Kan.App. 2005). The panel further rejected Harp's argument, raised for the first time on appeal, that the Court of Appeals should consider his appeal as a direct criminal proceeding under Ortiz. Harp, 124 P.3d 521, 2005 WL 3455824 *2.

We granted Harp's petition for review and temporarily remanded the case to the district court for a hearing and determination on the record of whether any of the Ortiz exceptions apply such that Harp should be permitted a direct appeal of his sentence out of time. Ortiz recognized limited exceptions to the general rule requiring a timely appeal from sentencing, concluding that, in the interest of fundamental fairness, an untimely appeal will be allowed only in those cases where an indigent defendant was either: (1) not informed of his or her appellate rights; (2) not furnished with an attorney to perfect an appeal; or (3) furnished with an attorney for that purpose who failed to perfect and complete an appeal. Ortiz, 230 Kan. at 735-36, 640 P.2d 1255 (relying on Brizendine v. State, 210 Kan. 241, 242-44, 499 P.2d 525 [1972]). If any of these narrow exceptional circumstances are met, a court must permit an appeal out of time. See State v. Willingham, 266 Kan. 98, 99-102, 967 P.2d 1079 (1998).

After hearing the evidence and arguments of counsel, the district court found that Harp was not advised of his right to appeal by the sentencing court or by defense counsel. Consequently, the district court determined that, under Ortiz, Harp should be permitted to appeal out of time.

This court retained jurisdiction of the case for consideration upon the district court's final determination. Based upon the arguments and holdings of the lower courts, we must consider whether Harp is entitled to relief via a motion to correct an illegal sentence, a petition pursuant to K.S.A. 60-1507, or through a direct appeal allowed under Ortiz.

Motion to Correct an Illegal Sentence

First, Harp argues that the district court erred in denying his pro se motion to correct an illegal sentence. He contends that, under the identical offense doctrine as applied in McAdam, the district court should have reduced the classification of his conviction for manufacture of methamphetamine from a severity level 1 drug felony to a severity level 3 drug felony.

Generally, no appeal can be taken from a judgment of conviction upon a guilty or no contest plea, "except that jurisdictional or other grounds going to the legality of the proceedings may be raised" as provided by K.S.A. 60-1507. K.S.A.2006 Supp. 22-3602(a). Following a plea, however, a defendant may challenge the sentence imposed under limited circumstances; specifically, he or she may challenge the severity level of the crime upon which the sentence is based. K.S.A. 21-4721(e)(3); State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004). Additionally, a defendant may argue the sentence qualifies as "illegal" as that term is used in K.S.A. 22-3504. Neither the district court nor an appellate court has jurisdiction over an untimely request to modify a sentence unless the sentence is illegal. State v. Phinney, 280 Kan. 394, 399, 122 P.3d 356 (2005); State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).

The question of whether a sentence is illegal is a question of law over which this court has unlimited review. State v. Hoge, 283 Kan. 219, 221, 150 P.3d 905 (2007). This court has 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 character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served. Hoge, 283 Kan. at 225, 150 P.3d 905; State v. Nash, 281 Kan. 600, 601, 133 P.3d 836 (2006); State v. Edwards, 281 Kan. 1334, 1336, 135 P.3d 1251 (2006).

Kansas case law has clearly established that a sentence imposed for a crime which has identical or overlapping elements with a crime of a less severe penalty and, thus, violates this court's rulings on identical or overlapping offenses is not "illegal" as that term is used in K.S.A. 22-3504. The district court had jurisdiction to accept Harp's guilty plea and to impose a sentence under K.S.A. 2001 Supp. 65-4159. See, e.g., State v. Swisher, 281 Kan. 447, 449, 132 P.3d 1274 (2006); Phinney, 280 Kan. at 399, 122 P.3d 356; Barnes, 278 Kan. at 123-24, 92 P.3d 578; see also Hoge, 283 Kan. at 225, 150 P.3d 905 (K.S.A. 22-3504 only applies if sentence is illegal). Harp's sentence conformed to 65-4159 as to its character and term of punishment, and the sentence was not ambiguous. Therefore, relief was not available to Harp under K.S.A. 22-3504.

K.S.A. 60-1507

In the alternative, although not required to do so, the district court could have construed Harp's pro se motion to correct an illegal sentence as a motion challenging his sentence under K.S.A. 60-1507. This construction was recently employed in Swisher, where the defendant raised an identical offense argument in light of State v. Frazier, 30 Kan.App.2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002) (possession of ephedrine, a severity level 1 drug felony, and possession of drug paraphernalia, a severity level 4 drug felony, had identical elements; thus, person convicted of either one could only be sentenced for severity level 4 drug offense), and State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005) (defendant entitled to be sentenced under lesser penalty provisions of drug paraphernalia statute), and challenged his controlling sentence as "illegal" in a pro se motion to correct an illegal sentence. See also, e.g., Love v. State, 280 Kan. 553, 557, 124 P.3d 32 (2005) (pro se motion to correct an illegal sentence treated as motion filed under K.S.A. 60-1507).

However, as this court observed in Swisher, even construing the motion as a K.S.A. 60-1507 motion, the defendant must overcome procedural hurdles. Swisher, 281 Kan. at 449, 132 P.3d 1274. A K.S.A. 60-1507 motion is not typically an acceptable instrument for a nonconstitutional claim of error that the defendant could have addressed on direct appeal. See Supreme Court Rule 183(c)(3) (2006 Kan. Ct. R. Annot. 227); Bruner v. State, 277 Kan. 603, 607, 88 P.3d 214 (2004); see also United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (no constitutional right to lesser penalty when two applicable statutes proscribe identical conduct).

Moreover, as the Court of Appeals panel concluded, Harp's collateral attack argument must be rejected under the holding in Bryant v. State, 280 Kan. 2, 118 P.3d 685 (2005). In Bryant, this court held that a defendant who enters a plea and does not file a direct appeal...