State v. Snellings

• Decision Date: 06 April 2012
• Docket Number: No. 101,378.,101,378.
• Citation: 273 P.3d 739
• Parties: STATE of Kansas, Appellee, v. M.L. SNELLINGS, Appellant.
• Court: Kansas Supreme Court

273 P.3d 739

STATE of Kansas, Appellee,

v.M.L. SNELLINGS, Appellant.

No. 101,378.

Supreme Court of Kansas.

April 6, 2012.

Syllabus by the Court

1. Under the principles that govern the identical offense sentencing doctrine, the elements of the offense of possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance as defined in K.S.A. 2007 Supp. 65–7006(a), a severity level 2 drug felony, are identical to the elements of the offense of possession of drug paraphernalia with intent to manufacture a controlled substance as defined in K.S.A. 2007 Supp. 65–4152(a)(3), a severity level 4 drug felony.

2. Under the principles that govern the identical offense sentencing doctrine, the elements of the offense of manufacturing methamphetamine as defined in K.S.A. 2007 Supp. 65–4159(a), a severity level 1 felony, are not identical to the elements of the offense of compounding a controlled substance containing ephedrine or pseudoephedrine as defined in K.S.A. 65–4164(a), a class A misdemeanor.

3. Use of prior convictions in a criminal defendant's criminal history score to enhance the defendant's sentence without requiring the history to be included in the complaint and proved to a jury beyond a reasonable doubt does not violate the defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of the same office, was on the brief for appellant.

Thomas R. Stanton, deputy district attorney, argued the cause, and Keith E. Schroeder, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

M.L. Snellings appeals his sentence, primarily arguing two of his convictions were assigned the wrong severity level by the sentencing court. In making this argument, Snellings attempts to apply the identical offense sentencing doctrine. Under that doctrine, where two offenses have identical elements, an offender can be sentenced to only the less severe penalty applying to the two offenses. Specifically, Snellings argues:

(1) An offense of possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance as defined in K.S.A. 2007 Supp. 65–7006(a), a severity level 2 drug felony, must be classified as a severity level 4 drug felony because it has identical elements to the offense of possession of drug paraphernalia with intent to manufacture a controlled substance as defined in K.S.A. 2007 Supp. 65–4152(a)(3), which is a severity level 4 drug felony; and

(2) An offense of manufacturing methamphetamine as defined in K.S.A. 2007 Supp. 65–4159(a), a severity level 1 drug felony, must be classified as a class A misdemeanor because it has identical elements to the offense of compounding a controlled substance containing ephedrine or pseudoephedrine as defined in K.S.A. 65–4164(a), a class A nonperson misdemeanor.

We find merit in the first of these arguments and therefore vacate Snellings' sentence for possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance and remand for resentencing on this count as a severity level 4 drug felony. However, we reject the second argument and also reject a third issue raised by Snellings, which is controlled by our decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).

Factual and Procedural Background

Defendant Snellings pleaded no contest to eight drug related charges and a ninth charge of criminal possession of a firearm. At sentencing, the district court made findings regarding Snellings' criminal history, granted Snellings' motion for a downward durational sentencing departure, and imposed a controlling term of 144 months' imprisonment. On direct appeal to the Court of Appeals, Snellings raised several issues, and the Court of Appeals affirmed in part, reversed in part, and remanded for resentencing. See State v. Snellings, No. 101,378, ––– Kan.App.2d ––––, 2010 WL 2216900 (Kan.App.2010) (unpublished opinion).

Snellings filed a petition for review seeking the discretionary review of this court on only three issues, which we have stated above. This court granted Snellings' petition for review and has jurisdiction over these three issues under K.S.A. 22–3602(e) (petition for review) and K.S.A. 20–3018(b) (same). The other issues considered by the Court of Appeals are not before us for review. See Supreme Court Rule 8.03(a)(5)(c) (2011 Kan. Ct. R. Annot. 70) (“Issues not presented in the petition, or fairly included therein, will not be considered by the court.”).

Possession of Ephedrine or Pseudoephedrine

We first consider Snellings' argument that the offense of possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance, defined in K.S.A. 2007 Supp. 65–7006(a), a severity level 2 drug felony, is identical to the offense of possession of drug paraphernalia with intent to manufacture a controlled substance, defined in K.S.A. 2007 Supp. 65–4152(a)(3), a severity level 4 drug felony. K.S.A. 21–4721(e)(3) grants an appellate court jurisdiction to consider a challenge to the severity level of the crime, even if the conviction and sentence follow from a plea agreement. See State v. Thomas, 283 Kan. 796, 805–06, 156 P.3d 1261 (2007).

Identical Offense Sentencing Doctrine

The principle behind the identical offense sentencing doctrine, which is the focus of Snellings' argument, is: “ ‘Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.’ ” State v. Cooper, 285 Kan. 964, 966–67, 179 P.3d 439 (2008) (quoting State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 [1989] ); see State v. Fanning, 281 Kan. 1176, 1180, 135 P.3d 1067 (2006). Two policy considerations support this doctrine. First, courts cannot rationally interpret the legislative intent behind the levels of punishment when two statutes prohibit the same conduct but impose different consequences for engaging in that conduct. Second, the doctrine prevents a prosecutor from indiscriminately choosing between the statutes in charging the offenses and, thus, impermissibly directing the range of sentences. Cooper, 285 Kan. at 968, 179 P.3d 439.

This court has explained there are three situations where offenses may have identical provisions: (1) where one offense is a lesser included offense of the other; (2) where some provisions in two statutes overlap, the overlapping provisions apply to the charged crime, and the overlapping provisions are identical except for the penalty provisions; and (3) where all provisions in two statutes are identical except for the penalty provisions. The identical offense sentencing doctrine applies to the second and third situations. State v. Campbell, 279 Kan. 1, 14–15, 106 P.3d 1129 (2005) (quoting 4 LaFave, Israel & King, Criminal Procedure § 13.7[a], pp. 95–99 [2d ed. 1999] ).

Snellings' arguments suggest it is the second situation—overlapping statutes—that applies to his argument. “When two statutes contain overlapping provisions, this court must examine the facts in order to determine the area of overlap. Once it is determined which provisions of a statute apply, the only question is whether the overlapping provisions contain identical elements. That determination is made from the statute.” Cooper, 285 Kan. at 967, 179 P.3d 439 (citing Campbell, 279 Kan. 1, 106 P.3d 1129). This argument requires us to interpret the relevant statutes, which presents a question of law subject to unlimited review. Cooper, 285 Kan. at 966, 179 P.3d 439.

In Campbell, 279 Kan. 1, 106 P.3d 1129, this court applied these general principles to prior versions of the statutes at issue in the present case, K.S.A. 65–7006(a) and K.S.A. 65–4152(a)(3). The Campbell court held the elements of K.S.A. 65–7006(a) overlapped with the elements of K.S.A. 65–4152(a)(3) and, to the extent of the overlap, the elements were identical. Applying the identical offense sentencing doctrine, the Campbell court held the defendant must be sentenced to the less severe penalty of the two identical offenses. Campbell, 279 Kan. at 16–17, 106 P.3d 1129. In reaching this decision, the Campbell court approved a Court of Appeals decision, State v. Frazier, 30 Kan.App.2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002), which had reached the same result.

After the decision in Campbell, the legislature amended K.S.A. 65–7006(a). The State argues the amendments removed the overlapping provisions so that the elements of the two statutes are no longer identical. Snellings argues the legislature failed to remove all of the overlapping and identical elements, meaning the holdings in Campbell and Frazier still apply and only the less severe sentence can be imposed. To determine which of these arguments is correct, we first will consider the basis for the decisions in Campbell and Frazier and then examine the statutory amendment.

Campbell and Frazier

Campbell, like Snellings, was accused of possessing ephedrine or pseudoephedrine with the intent to manufacture methamphetamine. At the time Campbell was decided and at the time Snellings committed the crime at issue in this case, K.S.A. 65–7006 provided in part: “(a) It shall be unlawful for any person to possess ephedrine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phenylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product to manufacture a controlled substance.” At the time of the Campbell decision, this offense was classified as a severity level 1 drug felony. See K.S.A. 65–7006(d). Under the version of the statute in effect when Snellings acted, it was a severity level 2 drug felony. See K.S.A. 2007...