State v. Thomas

• Decision Date: 27 April 2007
• Docket Number: No. 95,733.,95,733.
• Citation: 156 P.3d 1261
• Parties: STATE of Kansas, Appellee, v. John Aaron THOMAS, Appellant.
• Court: Kansas Supreme Court

156 P.3d 1261

STATE of Kansas, Appellee, v. John Aaron THOMAS, Appellant.

No. 95,733.

Supreme Court of Kansas.

April 27, 2007.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Ty Kaufman, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.:

The State appeals the Court of Appeals' order granting Thomas' motion for summary disposition and remanding for resentencing pursuant to State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). The State argues that a late appeal granted by the district court in 2005 must be subject to the law in effect at the time Thomas should have filed it, September 2001, and in effect during the course of that 2001 appeal. It reasons that because McAdam is a 2004 decision, Thomas' appeal could not have been pending at that late date and a sentence reduction that McAdam would otherwise authorize is not available to him. Our jurisdiction is pursuant to K.S.A. 20-3018(b).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the Court of Appeals err in granting Thomas' motion for summary disposition? Yes.

2. Is remanding for resentencing under McAdam correct? Yes.

3. Does K.S.A. 21-4721(c) bar Thomas' appeal? No.

Accordingly, we affirm the Court of Appeals' order remanding the case to the district court for resentencing.

FACTS

In January 2001, John Aaron Thomas was charged in the McPherson County District Court with manufacturing methamphetamine, possessing methamphetamine, felony possession of drug paraphernalia, and criminal possession of a firearm.

On April 17, 2001, Thomas entered a plea agreement with the State. He agreed to plead either guilty or nolo contendere to the manufacturing methamphetamine charge; in exchange, the State agreed to dismiss the remaining counts.

On September 11, 2001, Thomas was sentenced to 162 months' imprisonment based upon the drug severity level 1 felony of manufacturing methamphetamine and a criminal history classification of "E." The district court judge failed to inform Thomas of his appellate rights, e.g., the right to appeal his sentence as permitted by Kansas law. See State v. Harrold, 239 Kan. 645, 649, 722 P.2d 563 (1986) (following a guilty or nolo contendere plea, a defendant may challenge the sentence imposed). Thomas did not file a direct appeal. See K.S.A. 22-3608(a) (appeal must be filed within 10 days of sentencing).

On January 30, 2004, the Kansas Supreme Court filed State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). The court held that the offense of manufacturing the controlled substance methamphetamine under K.S.A. 65-4159(a), a drug severity level 1 felony, was identical to the offense of compounding the stimulant methamphetamine under K.S.A. 65-4161(a), a drug severity level 3 felony. Accordingly, 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 with instructions to resentence him for a drug severity level 3 felony, as provided for a violation of K.S.A. 65-4161(a).

On February 25, 2004, Thomas filed a motion to correct an illegal sentence under K.S.A. 22-3504, i.e., to reduce his drug severity level 1 sentence to a drug severity level 3 sentence per McAdam. The district court denied the motion.

On June 25, 2004, the Kansas Supreme Court filed State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004). Barnes pled guilty to aiding and abetting the manufacture of methamphetamine and was sentenced under K.S.A. 65-4159(a) to a controlling term of 146 months' imprisonment. Prior to this court's decision in McAdam, the Court of Appeals had rejected Barnes' argument that the offense of manufacturing methamphetamine under K.S.A. 65-4159(a), a drug severity level 1 felony, was identical to the offense of compounding a stimulant under K.S.A. 65-4161(a), a drug severity level 3 felony, and that she could only be sentenced under the lesser penalty provision. In Barnes, we held that the McAdam rule applied to a case which had a direct appeal pending as of the date of the McAdam decision. We also held that Barnes' plea agreement, which included a guilty plea in exchange for the dismissal of several charges, did not bar her relief under McAdam. We remanded for resentencing. 278 Kan. at 127-28, 92 P.3d 578.

On June 24, 2005, the Court of Appeals affirmed the district court's denial of Thomas' motion to correct his illegal sentence under K.S.A. 22-3504 and its alternative characterization as a motion under K.S.A. 60-1507. It held that McAdam did not apply retroactively, i.e., to those cases which were no longer direct appeals pending as of the date of the McAdam decision.

On August 25, 2005, Thomas filed a motion to docket his direct appeal out of time. Based upon State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), he argued that the district court erred in failing to advise him of his right to appeal his sentence at the September 2001 sentencing and that fundamental fairness required that his late appeal be allowed to proceed.

On September 2, 2005, the Kansas Supreme Court filed Bryant v. State, 280 Kan. 2, 118 P.3d 685 (2005). As characterized 2 months later in State v. Phinney, 280 Kan. 394, 400-01, 122 P.3d 356 (2005), Bryant essentially held that McAdam did not apply retroactively, i.e., to those cases which were no longer direct appeals pending as of the date of the McAdam decision.

On November 9, 2005, the district court granted Thomas's motion to docket his appeal out of time based upon Ortiz. The journal entry provided: "[T]he Court never advised the defendant of his right to appeal at the time of sentencing; the defendant was not advised of his right to appeal by his attorney; and the defendant did not otherwise know that he had a right to appeal the sentence of the Court.'" Later that day, Thomas filed his direct appeal with the Court of Appeals.

On November 10, 2005, the Kansas Supreme Court filed Phinney. Phinney pled no contest to possession of pseudoephedrine in exchange for the remaining charges being dismissed. He was sentenced for a drug severity level 1 felony under K.S.A.2001 Supp. 65-7006 to a 150-month prison sentence, with a dispositional departure to 36 months' probation. He did not file a notice of appeal. Approximately 1 month after his sentencing, the Court of Appeals filed State v. Frazier, 30 Kan.App.2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). That court held that possession of pseudoephedrine under K.S.A.2001 Supp. 65-7006(a), a severity level 1 felony, and possession of drug paraphernalia under K.S.A.2001 Supp. 65-4152(a)(3), a severity level 4 felony, are identical offenses, and a defendant convicted under 65-7006(a) could be sentenced only under the lesser penalty provision of 65-4152. In short, the Frazier court recognized the "identical offense" doctrine, as this court would later in a similar context in McAdam. After Phinney violated his probation, among other things he asked that his sentence be reduced to a severity level 4 felony based upon Frazier. The district court denied the motion, revoked his probation, and ordered him to serve the original 150-month sentence. Phinney later filed a direct appeal, 1 1/2 years after his original sentencing, arguing he was entitled to a late appeal pursuant to Ortiz.

In Phinney, we noted that Barnes involved a direct appeal pending when McAdam was decided, and we had found the defendant entitled to resentencing under McAdam. We also observed that State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005), involved a direct appeal pending when Frazier was decided, and this court had ultimately affirmed the Frazier holding by finding that 65-7006(a) was identical to 65-4152(a)(3) and that the defendant should have been sentenced under the lesser penalty provision. We held that Phinney met the Ortiz requirements, allowed his appeal out of time, and remanded for resentencing:

"The rationale for allowing an Ortiz appeal out of time is fundamental fairness. It is a device to put the defendant into the position he or she would have been in if fully informed of his or her appeal rights after sentencing. If a defendant can meet the narrow exceptional circumstances outlined in Ortiz and applied in Willingham, that defendant's out-of-time appeal should be treated as if it were a timely filed direct appeal. [Citation omitted.]

"Thus, Phinney's appeal should be treated as if it had been filed timely. Had that occurred, it would have been pending when Frazier was decided, and Frazier should apply to reduce Phinney's sentence, in accord with the holding in Campbell. This case must be remanded for resentencing as a severity level 4 felony.

"This conclusion is also supported by this court's opinion in Bryant v. State, 280 Kan. 2, 118 P.3d 685. While we refused in Bryant to apply McAdam on a collateral attack, the final paragraph of the opinion contemplated an `alternative means to the end Bryant seeks,' i.e, retroactive application of McAdam may be achieved by perfecting a direct appeal out of time, as Phinney has done here. See Bryant, 280 Kan. at 13, 118 P.3d 685." Phinney, 280 Kan. at 406-07, 122 P.3d 356.

On December 27, 2005, Thomas' appeal was docketed with the Clerk of the Appellate Courts.

On April 27, 2006, Thomas moved for summary disposition of his appeal pursuant to Supreme Court Rule 7.041a (2006 Kan. Ct. R. Annot. 53). He argued that the Barnes court had held that a defendant whose direct appeal was pending at the time McAdam was released was entitled to resentencing in accordance with McAdam; consequently, his sentence should be reduced on remand from a drug severity level 1 to a drug severity level 3.

On May 3, 2006, the Court of Appeals denied Thomas' motion for summary disposition of his appeal.

On May 5, 2006, Thomas filed his appellate brief. He again...