State v. Matson, 63870

• Decision Date: 31 August 1990
• Docket Number: No. 63870,63870
• Citation: 14 Kan.App.2d 632,798 P.2d 488
• Parties: STATE of Kansas, Appellee, v. Gilbert MATSON, Appellant.
• Court: Kansas Court of Appeals

Page 488

798 P.2d 488

14 Kan.App.2d 632

STATE of Kansas, Appellee, v. Gilbert MATSON, Appellant.

No. 63870 Court of Appeals of Kansas.

Aug. 31, 1990.

Review Denied May 24, 1991.

Syllabus by the Court

1. The "included crime" provided for in K.S.A. 21-3107(2)(d), and to which the proscription of the statute applies, is a lesser crime or offense, i.e., a crime which carries a lesser penalty than the penalty for the crime charged.

2. The general rule is that a conspiracy to commit a crime is an offense separate and distinct from the crime that is the object of the conspiracy.

3. The delay caused by a defendant in failing to obtain counsel and in failing to keep appointments or communicate with appointed counsel in order to prepare for trial may be properly charged to the defendant in determining whether the defendant was brought to trial within the time provided for in K.S.A. 22-3402(2).

4. K.S.A. 79-5201 et seq., which imposes a tax on marijuana and controlled substances, does not violate due process provisions of the Fourteenth Amendment and is constitutionally valid.

Reid T. Nelson, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Timothy J. Chambers, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRISCOE, P.J., BRAZIL, J., and HARRY G. MILLER, District Judge Retired, Assigned.

MILLER, Judge:

Defendant Gilbert Matson has appealed from his convictions on three drug-related charges.

The evidence is not disputed that Matson was employed by "Gene's Machines," a California car dealership. It was Matson's job to buy used cars in Hutchinson, Kansas, send them to David White, Gene's mechanic in Hutchinson, for repair, and then take the cars to California to be sold for profit.

The Reno County police department had information that Matson was bringing methamphetamine from California for use in an illicit drug operation with David White and others in Hutchinson. On May 10, 1988, based on information that Matson was arriving from California by plane, law enforcement officers met the plane in Wichita. They observed Matson place a bag in the trunk of a car driven by a friend and drive toward Hutchinson. As the car entered Reno County, it was stopped by law enforcement officers, who found in the trunk a large quantity of pure methamphetamine.

After a jury trial, Matson was convicted on three drug related charges, conspiracy to sell methamphetamine, K.S.A. 21-3302, K.S.A. 65-4127b(b), possession of methamphetamine with intent to sell, K.S.A. 65-4127b(b), and possession of methamphetamine without a tax stamp, K.S.A. 79-5201 et seq.

Because Matson was a third-time felon, the court declared him to be a habitual criminal, enhanced the sentences, and ordered them to run consecutively with a resulting controlling term of 23 to 75 years. Matson timely appeals.

Matson first contends that the charge of possession of methamphetamine with intent to sell was necessarily proved when he was convicted on the conspiracy charge and, therefore, his conviction on the possession charge must be vacated as being an included crime.

The jury was instructed that in order to find Matson guilty of the conspiracy charge, the State must prove the following:

"1. That the defendant agreed with others to commit or assist in the commission of the crime of sale of methamphetamine;

"2. That the defendant did so agree with the intent that the crime of sale of methamphetamine be committed;

"3. That the defendant or any party to the agreement acted in furtherance of the agreement by possessing a quantity of methamphetamine with intent to sell; and

"4. That this act occurred on or about the 10th day of May, 1988, in Reno County, Kansas."

Matson maintains that the information as clarified by the instruction necessarily required the State to prove that he committed the requisite overt act of possessing methamphetamine with the intent to sell, and that this was the same act of possession for which he was separately charged in count II of the information. Thus, he argues, the possession charge was the "included crime" under K.S.A. 21-3107(2)(d), and his conviction thereon must be vacated.

The State argues that the instructions required only possession of methamphetamine with intent to sell by any member of the conspiracy and not necessarily the defendant, that David White, a codefendant, was also convicted of possessing the drug with intent to sell, and that the two charges are separate and distinct offenses.

K.S.A. 21-3107(2) provides:

"Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

....

"(d) a crime necessarily proved if the crime charged were proved."

Cases considering the applicability of this statute have consistently interpreted it to prohibit prosecutions for "lesser included crimes." In State v. Fike, 243 Kan. 365, 367, 757 P.2d 724 (1988), the court, after considering the question at length, concluded that the "included crime" to which the proscription of the statute applies is a lesser crime or offense, i.e., "a crime" which carries a lesser penalty than the penalty for the crime charged.

Possession of methamphetamine with intent to sell is a class C felony. Conspiracy to sell methamphetamine is a class E felony. The possession charge is not a lesser included crime. Therefore, section 21-3107(2) does not prohibit conviction on both offenses.

Matson also contends that the convictions are unconstitutionally multiplicitous. He did not raise this issue at trial, but he correctly notes that multiplicity may be raised on appeal if necessary to serve the ends of justice or to prevent denial of fundamental rights. State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984). Since defendant was sentenced to consecutive sentences, the controlling term of his sentences will be significantly reduced if any one conviction is set aside. We will, therefore, consider this issue.

Matson, in effect, argues that the possession charge merged into the "broader crime" of conspiracy, and that the possession charge must, therefore, be vacated.

With limited exceptions not applicable here, the general rule is that a conspiracy to commit a crime is an offense separate and distinct from the crime that is the object of the conspiracy. United States v. Davis, 578 F.2d 277, 280 (10th Cir.1978). The rule is stated in 16 Am.Jur.2d, Conspiracy § 5, p. 220, as follows:

"The general rule is that a conspiracy to commit a crime is an offense separate and distinct from the crime that is the object of the conspiracy.... Because the conspiracy is the crime and not its execution, it is punishable both where it fails in its object and where the intended crime is accomplished."

The double jeopardy clause of the United States Constitution, of course, protects defendants in criminal proceedings from multiple punishments for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1078-79, 47 L.Ed.2d 267 (1976).

Multiplicity exists when the State attempts to use a single wrongful act as the basis for multiple charges. State v. Garnes, 229 Kan. 368, 372-73, 624 P.2d 448 (1981). In State v. Hobson, 234 Kan. 133, 137, 671 P.2d 1365 (1983), the court stated:

"In Jarrell v. State, 212 Kan. 171, 173, 510 P.2d 127 (1973), it was recognized that two or more separate convictions cannot be carved out of one criminal delinquency and where numerous charges are made, those which make up an integral part of another crime charged, in which the defendant was convicted, must be dismissed as duplicitous."

The test as to whether the substantive offense and the conspiracy to commit it constitute the same offense or are separate and distinct offenses depends upon whether one requires proof of an essential element which the other does not. State v. Garnes, 229 Kan. at 373, 624 P.2d 448; State v. Hobson, 234 Kan. 133, Syl. p 1, 671 P.2d 1365; United States v. Kelley, 545 F.2d 619, 624, cert. denied 430 U.S. 933, 97 S.Ct. 1555, 51 L.Ed.2d 777 (1977).

The essence of a conspiracy charge is the agreement to commit the crime. Thus, to convict Matson on the conspiracy charge required proof of an agreement. No such agreement was required to convict on the possession charge. The two charges are, therefore, separate and distinct offenses, and we find no error in defendant's conviction on both charges.

Matson, for a second ground on appeal, contends that the trial court violated his right to a speedy trial under K.S.A. 22-3402.

The record shows that Matson was originally charged with all three counts in one case. At a preliminary hearing on May 31, 1988, the conspiracy count was dismissed for lack of probable cause. Matson was arraigned on the possession charge and the tax stamp charges on June 6, 1988. The conspiracy charge was refiled and defendant was arraigned on this charge on July 5, 1988. The cases were consolidated prior to trial, and trial ultimately commenced on January 17, 1989.

K.S.A. 22-3402(2) provides:

"If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred and eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3)."

Under subsection (3), the court may grant one continuance of not more than 30 days if it needs to because of scheduling problems.

The record shows that on October 3, 1988, the trial court granted a continuance because of a crowded docket and in order to allow Matson to consult with his attorney and to prepare for trial. Defendant's counsel argues that since he did not request the continuance, the time should not be charged to defendan...