Wilson v. State, 89,787
| Decision Date | 03 July 2003 |
| Docket Number | No. 89,787,89,787 |
| Citation | 31 Kan.App.2d 728,71 P.3d 1180 |
| Parties | DOUG L. WILSON, Appellant, v. STATE OF KANSAS, Appellee. |
| Court | Kansas Court of Appeals |
Quentin J. Boone, of Law Office of Quentin J. Boone, of Hays, for appellant.
Thomas J. Drees, county attorney, and Phill Kline, attorney general, for appellee.
Before RULON, C.J., KNUDSON, J., and LARSON, S.J.
In this K.S.A. 60-1507 appeal, Doug L. Wilson asks for retroactive application of our decision of State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002).
We decline to apply our Frazier decision retroactively in a collateral attack on an unappealed guilty conviction and affirm the trial court.
On October 12, 1999, Wilson pled no contest to possession of ephedrine/pseudoephedrine, contrary to K.S.A. 1999 Supp. 65-7006(a), attempted manufacture of methamphetamine, contrary to K.S.A. 65-4159 and K.S.A. 21-3301, and possession of methamphetamine with intent to sell, contrary to K.S.A. 65-4161. After an extensive plea hearing, Wilson was found guilty on all three charges.
Wilson's pleas were the result of a favorable plea agreement where, in exchange for the three no contest pleas, the State dismissed nine counts in the three cases where he pled and completely dismissed all charges in two other cases.
On March 14, 2000, Wilson was sentenced to 146 months for possession of ephedrine/pseudoephedrine, a severity level 1 drug felony, 45 months for attempted manufacture of methamphetamine, and 20 months for possession of methamphetamine with intent to distribute. All three sentences were ordered to run concurrently. Wilson did not appeal.
On March 15, 2002, the Kansas Court of Appeals filed its decision in Frazier. The Frazier court found K.S.A. 2001 Supp. 65-7006(a) to be equivalent to the statute prohibiting possession of drug paraphernalia, K.S.A. 2001 Supp. 65-4152(a)(3), a drug severity level 4 felony, and directed the level 1 sentence to be modified to a level 4 sentence.
Wilson subsequently filed a motion, contending he was illegally sentenced and asked that his level 1 sentence be reduced to a level 4 sentence which with his time served would result in his release.
The trial court ruled in October 2002 that Wilson's K.S.A. 60-1507 motion could not be used to attack a sentence which Wilson failed to appeal. The court held the original sentence was appropriate for Wilson's criminal history considering the severity level of the crime at the time sentence was imposed and that the Frazier decision was not to be applied retroactively.
From this ruling, Wilson appeals.
The only issue we face is whether our decision in Frazier is to be applied retroactively. If it is, Wilson's sentence must be reduced to that which is appropriate for a severity level 4 felony. If it is not, the original sentence imposed by the trial court must be served.
Wilson contends the question of whether Frazier is to be applied retroactively is a question of law over which our review is unlimited. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). In addition, an illegal sentence may be corrected by an appellate court at any time. State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998).
The State suggests our standard of review of the denial of a K.S.A. 60-1507 motion is to determine if there is substantial competent evidence to support its findings and if those findings are sufficient to support its conclusions of law. Edwards v. State, 29 Kan. App. 2d 75, 25 P.3d 142 (2001). The State also cites Donlay for the rule that our review of questions of law is unlimited. We first point to the statutory wording of the two statutes in issue in this appeal. K.S.A. 1999 Supp. 65-7006(a), the statute in effect at the time Wilson committed the crime, provides: "It shall be unlawful for any person to possess ephedrine, pseudoephedrine or phenylpropanolamine . . . with intent to use the product as a precursor to any illegal substance." By comparison, K.S.A. 65-4152(a)(3) states, in relevant part: "No person shall use or possess with intent to use . . . any drug paraphernalia to. . . manufacture . . . a controlled substance in violation of the uniform controlled substances act." The definition of drug paraphernalia includes all equipment, products, and materials used or intended for use in manufacturing a controlled substance. K.S.A. 65-4150(c).
Where two offenses contain identical elements but carry different severity level classifications, a defendant convicted of either crime may be sentenced only according to the lesser severity level. State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989).
In Frazier, this court concluded that possession of ephedrine or pseudoephedrine and possession of drug paraphernalia, as proscribed in K.S.A. 1999 Supp. 65-7006(a) and K.S.A. 65-4152(a)(3), respectively, are identical offenses despite their variations in terminology:
This court 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.
As we have previously stated, our case, while factually following the Frazier scenario, differs because Wilson is collaterally attacking his sentence by way of a K.S.A. 60-1507 motion. He could have raised the precise question decided by Frazier on appeal, but he failed to do so. In addition, he received the benefits of a very favorable plea agreement with numerous counts and two companion cases dismissed.
The State asks us to rely on the rule of State v. Neer, 247 Kan. 137, Syl. ¶ 3, 795 P.2d 362 (1990), that "[a] new constitutional rule of criminal procedure generally will not be applied retroactively to cases on collateral review." There are several very limited exceptions to this rule, but the problem with the State's argument is that we are not here dealing with a "constitutional rule of criminal procedure" and Neer is simply not applicable to our situation.
Wilson recognizes that Frazier represents new case law but contends the only period for which the concept of retroactiveness must be considered is when the statute (K.S.A. 1999 Supp. 65-7006[a]) is being applied to a defendant prior to its original enactment before July 1, 1999. This argument, like the State's Neer argument referred to above, has no applicability to our situation because Wilson's criminal acts took place September 1, 1999. On that date, both L. 1999, ch. 170, sec. 12 (K.S.A. 1999 Supp. 65-7006[a]) and L. 1999, ch. 170, sec. 4 (K.S.A. 1999 Supp. 65-4152[a]) were in full force and effect.
An alternative argument that Wilson can make is that his situation is like that in State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992). In Williams, a lesser penalty resulted from a holding that where there is a single act of forcible sexual intercourse and the defendant is related to the victim, the crime which is committed is aggravated incest, K.S.A. 21-3603(1), a class D felony, and not indecent liberties with a child, K.S.A. 21-3503(1)(b), a class C felony. Aggravated incest was deemed to be the more specific crime because of the relationship of the parties. The Williams opinion stated the legislature appeared to reason it was a less serious offense when the victim was related to the defendant than when there was no family relationship.
Based on the Williams holding, a K.S.A. 60-1507 motion was filed in Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994), contending the district court lacked jurisdiction to convict Carmichael of rapes of his granddaughter. The Court of Appeals agreed and reversed the rape convictions. 18 Kan. App. 2d 435, 448, 856 P.2d 934 (1993). Our Supreme Court reversed the Court of Appeals, holding there was jurisdiction to convict Carmichael but that the rape sentences were to be vacated and Carmichael was to be resentenced for aggravated incest. 255 Kan. at 19-20.
The holding of Carmichael can be argued to compel and justify a retroactive application of Frazier in a collateral attack situation. Unfortunately for Wilson, the general versus specific situation in Carmichael is reversed in his case as the language of K.S.A. 1999 Supp. 65-7006(a) is more specific and K.S.A. 65-4152(a)(3) is the more general crime.
In addition, K.S.A. 1999 Supp. 65-7006(a) is the later enacted criminal statute; possession of ephedrine and pseudoephedrine is specifically prohibited with intent to use the product to manufacture a controlled substance and the violation level is raised to a severity level 1 felony, indicating a legislative intent to treat Wilson's activity more harshly. There remains, however, the argument that the two crimes are identical, and under the reasoning of Carmichael and Nunn, only the sentence for the lesser severity level could be entered.
A case that is more compelling to us is the recent decision in Easterwood v. State, 273 Kan. 361, 383, 44 P. 3d 1209 (2002), which held that intervening appellate decisions interpreting the felony-murder statute did not apply retroactively to a defendant's collateral attack on his felony-murder conviction. Also of interest is the decision in Whisler v. State, 272 Kan. 864, 36 P.3d 290 (2001), holding that Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (), do not apply retroactively to cases on...
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