Opinion
No. 110,778.
2014-11-21
STATE of Kansas, Appellee, v. Kelvin MINER, Appellant.
Appeal from Reno District Court; Trish Rose, Judge.Sam S. Kepfield, of Hutchinson, for appellant.Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The facts underlying this case are well known by the parties and are set forth in detail in this court's memorandum decision affirming the revocation of Miner's probation and the modification of his underlying sentence from 161 months to 80 months. See State v. Miner, No. 107,255, 2012 WL 5205630 (Kan.App.2012) (unpublished opinion).
While Miner's appeal of his probation revocation was pending, our Supreme Court issued its decisions in State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012), and State v. Adams, 294 Kan. 171, 273 P.3d 718 (2012), holding, respectively, that possession of pseudoephedrine and possession of lithium metal with intent to manufacture were identical to the offense of possession of drug paraphernalia with intent to manufacture. Accordingly, prior to this court's memorandum decision, Miner filed a motion to correct an illegal sentence, arguing that his conviction of possession of lithium metal with intent to manufacture was an identical offense to possession of drug paraphernalia with intent to manufacture.
The district court conducted a hearing at which the State argued that since Miner did not perfect a direct appeal after he was sentenced in 2009, he could not collaterally attack his sentence. Miner argued that while he did not take a direct appeal from his original sentence in 2009, he did appeal after the district court modified his sentence when revoking his probation. Miner claimed that when the district court modified his sentence, he had effectively been given a new sentence from which he took a direct appeal, which in turn would allow him to collaterally attack his sentence. The district court denied Miner's motion finding that Miner's sentence was final in 2009 and that Snellings only applied to cases pending on direct appeal in 2012. Miner appeals.
On appeal, Miner reprises the claims and legal arguments he made below. Whether a sentence is illegal is a question of law reviewed de novo. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). K.S.A. 22–3504(1) allows a district court to correct an illegal sentence at any time. A sentence is illegal if it imposed by a court without jurisdiction, does not conform to the applicable statutory provision either in character or term of punishment, or is ambiguous as to the time and manner in which the sentence is to be served. State v. Harp, 283 Kan. 740, 744, 156 P.3d 1268 (2007). Further, “a sentence imposed for a crime which has identical or overlapping elements with a crime of a less severe penalty and, thus, violates this court's rulings on identical or overlapping offenses is not ‘illegal’ as that term is used in K.S.A. 22–3504.” 283 Kan. at 744.
With these principles in mind, we can conclude that Miner's sentence is not illegal. Miner was originally sentenced to 161 months imprisonment underlying a 36–month term of probation in 2009. It is undisputed that the district court had jurisdiction to sentence Miner, that his sentence was authorized by the law at the time he was sentenced, and Miner makes no argument that his sentence was ambiguous in the time or manner in which it was to be served. Miner appeals solely on the grounds of a claimed illegal sentence pursuant to K.S.A. 22–3504 and has not asked this court to construe his motion as one under K.S.A. 60–1507 or argued any other grounds for relief.
Because it is clear that Miner's sentence was not illegal pursuant to K.S.A. 22–3504, our analysis would ordinarily end. However, we will briefly address Miner's claim that he is entitled to collaterally attack his sentence and obtain the benefit of the Supreme Court's holding in Snellings because he filed an appeal from the district court's revocation of his probation and modification of his underlying sentence.
“A defendant who enters a guilty plea and does not file a direct appeal cannot collaterally challenge the sentence imposed on the ground that the offense he or she pled guilty to and a second offense having a lesser penalty have identical elements.” Bryant v. State, 280 Kan. 2, Syl. ¶ 3, 118 P.3d 685 (2005). Miner did not file a direct appeal of his sentence following his guilty plea. He attempts to make an end run around this procedural hurdle by claiming that his probation revocation appeal amounted to a direct appeal of a new sentence. Miner's argument is without merit.
“K.S.A. 22–3716(b) does not ... authorize the district court to impose an entirely new sentence. It instead allows a downward modification of the original sentence. The district court may not increase the term of incarceration of the underlying sentence after probation is revoked, and [the defendant] therefore possessed all the information necessary to determine whether an appealable issue ... existed when the court originally imposed [the sentence].” State v. Ehrlich, 286 Kan. 923, 926, 189 P.3d 491 (2008).
Because Miner's modified sentence was not a new sentence, he remains subject to the Bryant rule prohibiting him from collaterally attacking his sentence under the holding of Snellings . For these reasons, the district court did not err in denying Miner's motion.
Affirmed.