State v. Singleton, No. 92,638.

• Decision Date: 21 January 2005
• Docket Number: No. 92,638.
• Parties: STATE OF KANSAS, Appellee, v. RONALD G. SINGLETON, Appellant.
• Court: Kansas Court of Appeals

33 Kan.App.2d 478

104 P.3d 424

STATE OF KANSAS, Appellee, v. RONALD G. SINGLETON, Appellant.

No. 92,638.

Court of Appeals of Kansas.

Opinion filed January 21, 2005.

Patrick H. Dunn, assistant appellate defender, for appellant.

Chris Oakley, county attorney, and Phill Kline, attorney general, for appellee.

Before RULON, C.J., GREENE and HILL, JJ.

RULON, C.J.:

Movant Ronald G. Singleton appeals the district court's denial of his motion to correct an illegal sentence under K.S.A. 22-3504(1), arguing his sentence should be modified from a severity level 1 offense to a severity level 3 offense following State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). In the alternative, the movant argues the court erred in denying his motion to file a direct appeal 18 months out of time.

This record shows that in August 2002 the movant and the State presented the district court with a plea agreement where the movant agreed to enter a plea of guilty to one count of manufacture of methamphetamine, a severity level 1 drug felony. In exchange the State agreed to dismiss one count of conspiracy to manufacture methamphetamine, a severity level 1 drug felony; one count of possession of anhydrous ammonia, a severity level 4 drug felony; and felony possession of drug paraphernalia, a severity level 4 drug felony. Further, the State agreed to recommend a downward durational departure from the presumed 138-154 month range to 72 months of imprisonment. The movant agreed not to request either a dispositional departure or a durational departure to a sentence of less than 72 months. The court accepted the plea on the record and imposed the recommended sentence on August 21, 2002.

Later, on February 17, 2004, the movant filed a pro se motion to correct an illegal sentence arguing he should have been sentenced as a severity level 3 offender under our Supreme Court's decision in State v. McAdam. On March 2, 2004, the movant's appointed counsel filed another motion to correct an illegal sentence which included a motion to file a notice of appeal out of time. The district court denied both motions, finding McAdam did not apply retroactively and the movant was not entitled to file an appeal as his conviction was the result of an agreed plea bargain sentence wherein the movant received a downward durational departure sentence. This appeal followed.

Motion To Correct An Illegal Sentence

In State v. Barnes, 278 Kan. 121, 123-24, 92 P.3d 578 (2004), our Supreme Court instructed that imposition of a sentence in conformity with a severity level 1 offense for conspiracy to manufacture methamphetamine was not an illegal sentence, nor was such an unconstitutional sentence. The Barnes court concluded the sentencing court did not err in denying the motion to correct an illegal sentence as the movant's sentence was not illegal.

We understand the movant's second motion to correct an illegal sentence is now claimed to constitute a K.S.A. 60-1507 motion despite the fact that no such language was present in the original motion. However, historically we have been instructed that "Pro se pleadings are to be liberally construed." State v. Andrews, 228 Kan. 368, 370, 614 P.2d 447 (1980) (pro se documents considered motion for new trial); see State v. Jackson, 255 Kan. 455, 458, 874 P.2d 1138 (1994) (A motion to withdraw a plea of nolo contendere after sentencing should be treated like a K.S.A. 60-1507 motion.); Jackson v. State, 1 Kan. App. 2d 744, 573 P.2d 637 (1977) (K.S.A. 60-1507 motion construed as motion for new trial under K.S.A. 22-3501). Additionally, our Supreme Court has recognized that "[t]here is no indication that a motion to correct an illegal sentence was intended by the legislature to be treated differently from a K.S.A. 60-1507 attack upon a sentence. Logic does not require a different treatment." State v. Duke, 263 Kan. 193, 196, 946 P.2d 1375 (1997). But see State v. McCoin, 278 Kan. 465, 101 P.3d 1204 (2004) (District court's denial of pro se motion seeking order to correct journal entry was really a motion to arrest judgment and could not be "liberally construed" to be a motion to correct an illegal sentence and, thus, defendant was required to file K.S.A. 60-1507 motion before the court had jurisdiction to consider the matter.).

We are unclear if our Supreme Court in McCoin is abandoning the court's long-standing policy of liberal construction where pro se motions are concerned. However, we note that McCoin's motion was construed by the district court and our Supreme Court as a motion to arrest judgment under K.S.A. 22-3502. 278 Kan. at 467-68. Here, we have a motion to correct an illegal sentence and, under Duke, we are obligated, until otherwise instructed, to treat the present motion as a K.S.A. 60-1507 motion and address the merits of the motion rather than dismiss for lack of jurisdiction.

Application of McAdam

In McAdam, our Supreme Court held that conspiracy to manufacture methamphetamine under K.S.A. 65-4159(a) had identical elements to K.S.A. 65-4161(a), a severity level 3 offense, and concluded the defendant there could only be sentenced to the lesser penalty. 277 Kan. at 146-47. McAdam was a direct appeal from a conviction at jury trial. Here, this movant entered a guilty plea, did not file a direct appeal from the sentence imposed, and his sentence became final 10 days after sentencing under K.S.A. 22-3608(c).

In Wilson v. State, 31 Kan. App. 2d 728, 71 P.3d 1180,rev. denied276 Kan. 974 (2003), this court considered an analogous issue relating to the retroactive application of State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188,rev. denied 274 Kan. 1115 (2002). In Frazier, this court concluded that possession of ephedrine or pseudoephedrine under K.S.A. 2001 Supp. 65-7006(a) and possession of drug paraphernalia, as proscribed by K.S.A. 2001 Supp. 65-4152(a)(3), are identical offenses despite their variations in terminology. This court held that the severity level 1 sentence imposed was illegal and vacated Frazier's sentence and remanded the case with directions to impose a sentence consistent with the penalties for a drug severity level 4 felony. 30 Kan. App. 2d at 405-06.

Based upon this ruling, Wilson filed a K.S.A. 60-1507 motion arguing his severity level 1 drug felony sentence was illegal. This court held that the rule announced in Frazier should not be applied retroactively.

The law is well settled that state courts are under no constitutional duty to apply their criminal decisions retroactively. See Wilson, 31 Kan. App. 2d at 733. Here, this movant's sentence was final before McAdam was decided on January 30, 2004. Likewise, there is no claim that a new constitutional rule of criminal procedure is at issue, nor can this movant argue that he could not be convicted of the crime as set out in the plea agreement. See State v. Barnes, 278 Kan. at 123. Further, we understand that a defendant has 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, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979) ("[T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause.").

We are convinced the Kansas Constitution provides no right to a lesser sentence because a defendant's rights under our Constitution have generally been held to be no greater than the rights provided by the United States Constitution. See State v. Morris, 255 Kan. 964, 880 P.2d 1244 (1994) (Provisions of section 10 of the Kansas Constitution Bill of Rights grant no greater protection against self-incrimination than does the Fifth Amendment to the United States Constitution.); State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993) (The scope of § 15 of the Bill of Rights to the Kansas Constitution and of the Fourth Amendment to the United States Constitution is usually identical.); In re Habeas Corpus Petition of Lucas, 246 Kan. 486, 489, 789 P.2d 1157 (1990) (Section 10 of the Bill of Rights of the Kansas Constitution entitles a defendant to the same protection against double jeopardy afforded under the United States Constitution.); State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, 583, 701 P.2d 1314 (1985) (Section 1 of the Kansas Constitution Bill of Rights is given much the same effect as the Equal Protection Clause of the Fourteenth Amendment).

This movant's only right to relief from the imposed sentence would arise from our Supreme Court's decisions in State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), and most recently, State v. McAdam and State v. Barnes. However, Clements, Nunn, McAdam, and Barnes were all direct appeals and not collateral attacks as is the case before us. Recently, our Supreme Court noted the differences between a McAdam claim presented on direct appeal and such a claim presented in a collateral attack, as in Wilson. See Barnes, 278 Kan. at 126-27. Because the appeal in Barnes was direct, according to our Supreme Court, much of the analysis in Wilson was inapplicable. The reverse would likewise be true.

As in Wilson, we hold that McAdam does not apply retroactively to those cases on collateral review because to do so would give the movant the double benefit of a favorable plea agreement, with a significant downward durational departure, and then the benefit of a reduced sentence based on an issue the movant failed to...