Opinion
No. 110,927.
2015-02-6
STATE of Kansas, Appellee, v. Anthony R. MOSS, Appellant.
Appeal from Riley District Court; Meryl D. Wilson, Judge.Brenda M. Jordan, of Brenda Jordan Law Office LLC, of Manhattan, for appellant.Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Riley District Court; Meryl D. Wilson, Judge.
Brenda M. Jordan, of Brenda Jordan Law Office LLC, of Manhattan, for appellant. Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, J.J.
MEMORANDUM OPINION
PER CURIAM.
Anthony R. Moss appeals the district court's denial of his motion to correct an illegal sentence and, for the first time on appeal, contends his appellate counsel was ineffective for failing to raise this issue in his direct appeal. We affirm.
On January 31, 2011, Moss pled no contest to two counts of failure to register pursuant to the Kansas Offender Registration Act (KORA). Count one occurred between July 1 and July 31, 2010, and count two occurred between November 1 and November 30, 2009. At the time he committed these crimes, failure to register was a severity level 5 person felony. On March 7, 2011, the district court imposed a 114–month sentence on the first count and a concurrent 31–month sentence on the second count due to Moss' criminal history score and the severity level of the crime. Moss filed a direct appeal of his sentence, arguing only that the use of his criminal history for sentencing purposes without proving it to a jury beyond a reasonable doubt was unconstitutional. The Kansas Supreme Court affirmed Moss' original sentence on September 21, 2012, in State v. Moss, No. 106,463, 2012 WL 4464298 (Kan.2012) (unpublished opinion).
On September 10, 2012, while his direct appeal was still pending, Moss filed the present motion to correct an illegal sentence, premised on the fact the legislature amended KORA on July 1, 2011, reducing the severity level—and therefore the sentence—of a first offense for failure to register to a severity level 6 person felony. The district court summarily denied Moss' motion, and Moss timely appeals.
Moss contends his sentence is illegal as the KORA amendment should apply retroactively to alter his sentence because, although he was convicted and sentenced before the amendment took effect, his case was not yet final. “[W]hether a sentence is illegal is a question of law over which this court has unlimited review.” State v. Heronemus, 294 Kan. 933, 935, 281 P.3d 172 (2012).
The State argues that Moss should not receive the benefit of the amendment to KORA because, in Kansas, it is a fundamental rule of criminal procedure that a defendant is sentenced based on the law in effect when the crime was committed. State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010). Moreover, laws do not apply retroactively absent a clear indication from the legislature. 291 Kan. at 557, 244 P.3d 667 (citing State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 [1980] ). There is no indication the legislature intended the amendment to KORA to apply retroactively.
Moss concedes the general rule cited above but points to City of Kansas City v. Griffin, 233 Kan. 685, 687–88, 664 P.2d 865 (1983) (citing Sekt v. Justice's Court, 26 Cal.2d 297, 159 P.2d 17, cert. denied 326 U.S. 756, 66 S.Ct. 96, 90 L.Ed. 454 [1945] ), which, he argues, requires us to remand his case for resentencing:
“In the absence of a general savings statute, the prevailing rule in the United States today is that where a statute which defines a crime and provides for its punishment is repealed by a statute which, in effect, reenacts the substance of the original one, the new statute does not interrupt the operation of the old statute and does not prevent a prosecution or a conviction or affirmance of a conviction after the reenactment for an offense committed before the repeal and reenactment. This rule is discussed in the many cases set out in the annotation in 77 A.L.R.2d 336, 364. Where a statute is amended only to increase the penalty for the crime and the statute is repealed, there has been a split of authority as to whether pending prosecutions are to be abated. See the annotation at 167 A.L.R. 845.
“According to what has now become the great weight of authority, there are at least three situations to which the common-law rule does not apply:
“(1) Where the statute passed after the offense is committed but before final judgment mitigates rather than increases the punishment....”
Based on Griffin, Moss argues he should receive the benefit of the ameliorative change to K.S.A. 22–4903 because his judgment was not final at the time of the change. Moss' reliance on Griffin, however, is misplaced.
As the State points out, Griffin contemplated situations in which a statute was repealed and replaced by a new statute. K.S .A. 22–4903 was not repealed in 2011. The Kansas Legislature only amended KORA to reduce the severity level—and sentence—for a first time violation. K.S.A.2011 Supp. 22–4903(c)(1)(A). Therefore, there is no reason to follow the authority cited in Griffin and grant Moss the benefit of a statutory amendment that occurred after his conviction and sentencing.
Also, and for the first time on appeal, Moss claims his appellate counsel was ineffective for failing to raise this issue in his direct appeal. However, an appellate court generally will not consider an allegation of ineffective assistance of counsel raised for the first time on appeal. See State v. Gleason, 277 Kan. 624, 647, 88 P.3d 218 (2004).
Our Supreme Court has recognized that an appellate court may hear a claim of ineffective assistance of counsel for the first time on appeal in “extraordinary” circumstances. State v. Swisher, 281 Kan. 447, 450, 132 P.3d 1274 (2006); Laymon v. State, 280 Kan. 430, 444, 122 P.3d 326 (2005). Our Supreme Court has also held that when “the two prongs of ineffective assistance-deficient performance by counsel and prejudice as a result of the deficiency—were demonstrated as a matter of law by the appellate record ..., remand to the district court was not necessary.” Trotter v. State, 288 Kan. 112, 128, 200 P.3d 1236 (2009).
The record demonstrates that Moss' claim of ineffective assistance of counsel is without merit. First, his appellate counsel was not ineffective because Moss was not entitled be resentenced. Second, even if Moss were able to demonstrate his appellate counsel was deficient for not at least raising the issue on appeal, he cannot show prejudice because he was given the opportunity to make his argument in the present case.
Affirmed.