Opinion
110,887.
04-03-2015
James Thomas BROWN V, Appellant, v. STATE of Kansas, Appellee.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.
Janine Cox, of Kansas Appellate Defender Office, for appellant.
Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
James Thomas Brown V appeals from the district court's denial of his K.S.A. 60–1507 motion. Brown pled guilty to possession of anhydrous ammonia with intent to manufacture a controlled substance, a drug severity level 2 felony, and possession of drug paraphernalia with intent to manufacture a controlled substance, a drug severity level 4 felony. Counsel admittedly failed to discuss with Brown, both prior to sentencing and prior to the lapse of his appeal time, the identical offense sentencing doctrine. The doctrine holds that upon a finding that two offenses with different sentencing schemes are identical, the court may only impose the lesser of the sentences. Brown asserts that had he known about this issue he would have appealed. And because similarly situated defendants that raised this issue on appeal both before and after Brown's sentencing successfully had their sentences reduced when the Supreme Court issued its decision in State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012), Brown is clearly able to show prejudice. We find that Brown's counsel was ineffective for failing to discuss the identical offense doctrine with him so that he could make an informed decision regarding his appeal. Accordingly, we reverse the district court finding that counsel was not ineffective, vacate Brown's sentence, and remand the case for resentencing as a drug severity level 4 felony.
Factual and Procedural History
Among other charges, Brown pleaded guilty to possession of anhydrous ammonia with intent to manufacture a controlled substance, a drug severity level 2 felony, and possession of drug paraphernalia with intent to manufacture a controlled substance, a drug severity level 4 felony. He was sentenced on March 29, 2010.
Brown attempted to file an out-of-time direct appeal, arguing that the Ortiz exceptions apply because he would have filed an appeal had he known that he could appeal the severity level of his offense. This request was denied by the district court. The district court's decision was affirmed by this court. State v. Brown, No. 110,693, 2014 WL 5801178 (Kan.App.2014) (unpublished opinion), petition for rev. filed December 1, 2014. However, after the district court denied Brown's request to file an out-of-time direct appeal, it indicated that Brown could file a K.S.A. 60–1507 motion for ineffective assistance of counsel.
Brown took the advice and filed a pro se K.S.A. 60–1507 motion. In his motion, Brown argued his trial counsel was ineffective because he would have appealed his sentence if he had been told by his trial counsel about the identical offense sentencing doctrine which would have reduced his sentence from a drug severity level 2 felony to a drug severity level 4 felony.
After an evidentiary hearing, the district court denied Brown's K .S.A. 60–1507 motion, holding: (1) Brown's motion was filed beyond the 1–year statute of limitations for filing such motions; (2) at the time of sentencing, the parties relied on current caselaw; (3) it was reasonable for trial counsel not to pursue or advise Brown that the issue was still in question; and (4) Brown was not asking to set aside his convictions; thus, there was no remedy under a multiplicity argument.
Brown filed a timely notice of appeal.
Analysis
Brown asserts that the district court erred when it denied his K.S.A. 60–1507 motion because Brown's trial counsel's performance fell below the objective standard of reasonableness when he failed to inform Brown of the identical offense sentencing doctrine so he could have made an informed decision concerning an appeal. Brown argues that he was prejudiced by his trial counsel's ineffective performance because he would have been given a lesser sentence if the issue had been raised on appeal.
The State argues that Brown's motion was filed beyond the 1–year statute of limitations and that Brown failed to show that manifest injustice existed to extend the 1–year statute of limitations. The State also contends that Brown's trial counsel was not ineffective for failing to appeal Brown's sentence using the identical offense sentencing doctrine.
Stadndars or Review
K.S.A. 60–1507 Motion
After a full evidentiary hearing on a K.S.A. 60–1507 motion, the district court must issue findings of fact and conclusions of law concerning all issues presented. Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 285). The appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is de novo. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013).
Ineffective Assistance of Counsel
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law. Consequently, appellate courts review the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo. State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014).
To establish ineffective assistance of counsel, the defendant must establish (1) that counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and (2) that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014).
Under State v. Patton, 287 Kan. 200, 225, 195 P.3d 753 (2008), prejudice is presumed where retained or appointed counsel failed to file or perfect a direct appeal. However, a defendant must show that, but for counsel's failure, he or she would have taken a timely direct appeal—not that a timely direct appeal would have been successful.
Neither party challenges the district court's finding of manifest injustice to extend the 1–year statute of limitations for filing a K.S.A. 60–1507 motion.
A defendant has 1 year from when his or her conviction becomes final to file a motion under K.S.A. 60–1507(a). K.S.A. 60–1507(f)(1). In Brown's case, his conviction became final in April 2010. Brown did not file his K.S.A. 60–1507 motion until February 2013. Neither party challenges the court's finding that the motion was untimely and the facts support such a finding.
But the 1–year time limitation for bringing an action under K.S.A. 60–1507(f)(1) may be extended by the district court to prevent a manifest injustice. K.S.A. 60–1507(f)(2). Manifest injustice must be determined from the totality of the circumstances. In determining whether manifest injustice exists, the court should consider this nonexhaustive list of factors: (1) whether the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60–1507 motion within the time limitation; (2) the merits of the movant's claims raise substantial issues of law or fact deserving the district court's consideration; and (3) whether the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence. Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014).
The district court found that the issue of whether manifest injustice existed was a close enough issue that an appellate court could find manifest injustice in this case to support a late filing. And, if a defendant can show prejudicial ineffective assistance of counsel, such proof could contribute to a finding of manifest injustice. See Vontress, 299 Kan. at 616. Accordingly, the court addressed the merits of Brown's claim. Again, neither party challenges this finding by the court. Brown argues that the district court was correct to rule on the merits of his claim, although he disagrees with the court's conclusion. The State does not address the issue of manifest injustice at all in its brief, except a conclusory statement that there was no showing of manifest injustice. A point raised incidentally in a brief and not argued therein is deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013).
As a result, we find that the parties do not challenge on appeal the court's finding of manifest injustice. Accordingly, we too will proceed to the merits of Brown's claim.
We find that counsel was ineffective for failing to inform Brown that the identical offense sentencing doctrine existed and was being asserted regularly on appeal in factual patterns identical to his.
Brown pleaded guilty to possession of anhydrous ammonia with intent to manufacture a controlled substance, a drug severity level 2 felony, and possession of drug paraphernalia (to wit: pseudoephedrine) with intent to manufacture a controlled substance, a drug severity level 4 felony. One year after Brown's time to appeal his sentence expired, the Kansas Supreme Court entered its decision in Snellings, 294 Kan. 149, finding that the two offenses Brown was charged with were identical. Accordingly, under the identical offense sentencing doctrine, “ “ ‘[w]here 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.’ “ “ 294 Kan. at 151. So, if Brown were to receive the benefit of the Snellings' ruling his sentence would be substantially reduced from a drug severity level 2 felony to the lesser drug severity level 4 felony.
Brown contends that his attorney was ineffective for (1) failing to advise him that there was an identical offense sentencing doctrine which could apply to his plea in this case; (2) failing to advise him to appeal his sentence where the issue could be raised; and (3) failing to treat him like counsel's other clients, where he had raised this issue. He claims that but for counsel's ineffectiveness, he would have appealed his conviction, the appeal would have been pending when the Snellings decision was released, and he would have reaped the benefit of that decision. At the evidentiary hearing, Brown's trial counsel testified that he did not inform Brown of the potential issue pertaining to the identical offense sentencing doctrine because he thought it was a dead issue since this court continued to deny appeals that raised the issue. However, with hindsight, Brown's trial counsel indicated that he should have filed an appeal. Brown's trial counsel also testified that he raised the identical offense sentencing doctrine in some of his clients' cases, so he was clearly aware it was an issue of concern. So does an attorney provide ineffective assistance to a client when the attorney does not foresee a potential change in the law and continue to assert an issue and recommend an appeal to preserve the client's position?
In Laymon v. State, 280 Kan. 430, Syl. ¶ 3, 122 P.3d 326 (2005), the Supreme Court opined that a lawyer's failure to foresee a change in the law may lead to K.S.A. 60–1507 relief if the failure was not objectively reasonable. Therefore, the question here becomes whether Brown's attorney's failure to advise him of the issues associated with the identical offense sentencing doctrine and foresee the possibility of the Supreme Court's ruling in Snellings was objectively reasonable. To answer this question, we must examine the status of the law at the time Brown's sentence was imposed and his appeal time began to run, March 29, 2010.
On March 29, 2010, questions regarding the application of the identical defense sentencing doctrine in the case of various drug crimes had been swirling around at least since the doctrine was discussed in State v. McAdam, 277 Kan. 136, 146–47, 83 P.3d 161 (2004). See State v. Clements, 241 Kan. 77, 82–83, 734 P.2d 1096 (1987) (application of doctrine to nondrug crimes of aggravated criminal sodomy and indecent liberties with a child). Indeed, Brown's attorney had raised the issue on behalf of another client in 2009.
In McAdam, the Supreme Court found that K.S.A. 65–4159(a) regarding the drug severity level 1 offense of manufacturing a controlled substance was identical to K.S.A. 65–4161(a), a drug severity level 3 offense of unlawfully compounding any opiates or narcotic. Therefore McAdam could only be sentenced to the lesser offense. 277 Kan. at 145.
In 2005, the year after McAdam was filed, the Supreme Court entered its decision in State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005). Campbell was charged with possession of ephedrine or pseudoephedrine with the intent to manufacture a controlled substance and possession of drug paraphernalia with the intent to use it to manufacture a controlled substance. In Campbell, the court held, first, that drug paraphernalia is defined as “ ‘products and materials of any kind which are intended for use in manufacturing a controlled substance’ “ under K.S.A. 65–4150(c). 279 Kan. 1, Syl. ¶ 3. Moreover, K.S.A. 65–7006 defines certain “products” that are unlawful to possess with the intent to manufacture a controlled substance. 279 Kan. 1, Syl. ¶ 3. The court found that when the “product” which is used in the paraphernalia charge is also identified as a product in the manufacture charge under K.S.A. 65–7006, the charges are identical. 279 Kan. 1, Syl. ¶ 4. In Campbell, that product was ephedrine or pseudoephedrine. See Snellings, 294 Kan. at 154 (summarizing the Campbell ruling). We pause to note that K.S.A. 65–7006(a) and K.S.A. 65–4152(a)(3) were the predecessors of K.S.A.2009 Supp. 21–36a09(a) and K.S.A.2009 Supp. 21–36a09(b), the same offenses at issue in this case. So as of January 31, 2005, Brown would have been subject to a drug severity level 4 felony sentence under the identical offense sentencing doctrine because the paraphernalia he was charged with possessing, pseudoephedrine, was also listed as a product under K.S.A. 65–7006(a).
But in an apparent attempt to address Campbell, the 2006 legislature amended the definition of drug paraphernalia under K.S.A. 65–4150(c) by removing the term “products.” K.S.A.2006 Supp. 65–4150(c).This court had an opportunity to review whether Campbell was still good law in light of this statutory amendment in State v. Dalton, 41 Kan.App.2d 792, 207 P.3d 257 (2008), rev. denied 287 Kan. 767 (2009).
Dalton entered a nolo contendre plea to one count of possession of red phosphorus with intent to manufacture methamphetamine in violation of K.S.A.2006 Supp. 65–7006(a), a drug severity level 2 felony. He argued that since this crime was identical to K.S.A.2006 Supp. 65–4152(a)(3), a drug severity level 4 felony, based on Campbell he could only be subject to the lesser drug severity level 4 sentence under the identical offense sentencing doctrine.
The Court of Appeals found that the 2006 statutory amendments clearly communicated the legislative intent that drug paraphernalia does not include the products listed in K.S.A.2006 Supp. 65–7006(a). Dalton, 41 Kan.App.2d at 795. Accordingly the statutes were no longer identical and Campbell did not control the result. Although Dalton was originally an unpublished opinion, the Supreme Court denied a petition for review on January 22, 2009, and ordered the Court of Appeals opinion published in April 2009. One could argue that this was sending a message that the Court of Appeals decision in Dalton was supported by the Supreme Court. But our Supreme Court rules are clear that “[a] denial of a petition for review imports no opinion on the merits of the case.” Supreme Court Rule 8.03(g) (2014 Kan. Ct. R. Annot. 80).
After Dalton but before Brown's sentencing, three other Court of Appeals panels reached the same conclusion as Dalton. See State v. Moon, No. 101,556, 2010 WL 445924, at *3 (Kan.App.2010) (unpublished opinion); State v. Claussen, No. 100,899, 2009 WL 4035202, at *2–3 (Kan.App.2009) (unpublished opinion); State v. Sutton, No. 101,522, 2009 WL 3428670, at *6 (Kan.App.2009) (unpublished opinion). This was the status of the law at the time of Brown's sentencing. There were no opinions to the contrary, although petitions for review had been filed in Moon, Claussen, and Sutton. This was clearly the source of Brown's trial counsel's statement that although he had raised the issue before, he had “kind of given up on the issue. The Court of Appeals was coming down consistently against them.” But Campbell, which would have supported an appeal by Brown, had not been overruled and remained the last statement from the Supreme Court on the issue.
It appears counsel gave up prematurely. Even though the Court of Appeals had filed Dalton and the Supreme Court had denied review, attorneys continued filing petitions for review in cases decided after Brown's sentencing where the Court of Appeals continued to cite Dalton as controlling. See State v. Adams, 43 Kan.App.2d 842, 853–56, 232 P.3d 347 (2010) ; State v.. Holland, No. 102,795, 2011 WL 135022, at *7 (Kan.App.2011) (unpublished opinion); State v. Terrill, No. 103,105, 2011 WL 781614, at *3 (Kan.App.2011) (unpublished opinion); State v. Busse, No. 101,703, 2010 WL 5490725, at *8 (Kan.App.2010) (unpublished opinion); State v. Montgomery, No. 101,507, 2010 WL 2502875, at *3 (Kan.App.2010) (unpublished opinion); State v. Snellings, No. 101,378, 2010 WL 2216900, at *3 (Kan.App.2010) (unpublished opinion). All of these sentences were subsequently vacated pursuant to the Supreme Court's decision in Snellings. Moreover, Brown's trial counsel had represented Danny Terrill in one of those cases. Terrill pled guilty in April 2009 to one count of possession of ephedrine with intent to manufacture a controlled substance, a drug severity level 2 felony. Counsel unsuccessfully raised the identical offense sentencing doctrine at sentencing, arguing that based on Campbell, Terrill could only be sentenced to a drug severity level 4 felony. This court entered its decision denying Terrill relief, consistent with Dalton, on March 4, 2011. Terrill, by that time represented by the Kansas Appellate Defender Office, filed a petition for review and was ultimately granted the relief requested based upon Snellings. See Terrill, 2011 WL 781614, at *3.
We find that the district court's conclusions regarding the effect of Dalton and counsel's reliance thereon was not supported by substantial competent evidence and was insufficient to support the district court's conclusion of law that counsel's performance was not constitutionally deficient. At the time of Brown's sentencing any attorney dealing with drug crimes and their sentences should have been aware of the continuing viability of the question of the applicability of the identical offense sentencing doctrine in situations similar to that faced by Brown. It was clear that whether the Dalton rationale would ultimately prevail was continuing to be challenged with several petitions for review outstanding at the time of Brown's sentencing and many more after his sentencing. We find it objectively unreasonable that counsel did not at least tell Brown of the doctrine and argue it at sentencing. Had counsel done so and had Brown refrained from pursuing an appeal, at least Brown's choice would have been an informed one. Therefore, Brown's trial counsel should have at least informed Brown that the identical offense sentencing doctrine was a potential issue for sentencing and appeal, particularly since trial counsel was already aware of the issue at the time of Brown's sentencing. Trial counsel's deficient performance prejudiced Brown. Our Supreme Court has determined that a defendant whose direct appeal is still pending at the time a decision is rendered regarding the application of the identical offense doctrine is entitled to resentencing. State v. Barnes, 278 Kan. 121, 122–28, 92 P.3d 578 (2004). Thus, if Brown had filed a direct appeal and then a petition for review once this court denied his issue, he would have been given relief as soon as Snellings was filed by our Supreme Court and he would have been sentenced to a severity level 4 felony rather than a severity level 2 felony.
Finally, we see no purpose in granting Brown a late direct appeal in his case, particularly when the result is clear and Brown is not challenging his conviction. Instead, we vacate his sentence and remand the case to the district court for resentencing as a drug severity level 4 felony.
Reversed, sentence vacated, and remanded with directions for resentencing.