STATE v. McCOIN (2004)

Defendant Paul A. McCoin appeals the sentence imposed as a result of his plea of guilty to one count of attempted unlawful manufacture of methamphetamine, a severity level 1, drug felony under K.S.A. 65-4159(a).   The defendant's criminal history score was C.

We understand the defendant was granted a durational departure from the presumed sentence of 169 months to 187 months, down to 48 months in prison.   The record on appeal indicates the State, as part of the plea agreement, dropped charges of conspiracy to manufacture methamphetamine, felony possession of drug paraphernalia, possession of methamphetamine, and misdemeanor possession of drug paraphernalia. No direct appeal was taken.

However, on April 9, 2003, the defendant filed a motion to correct the journal entry which challenged the factual basis for his plea.   After that motion was denied, the defendant appealed.   Prior to briefing, the defendant filed a motion for summary disposition arguing his sentence was illegal based on State v. Frazier, 30 Kan.App.2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002).   This court granted the motion to proceed without briefs.   Subsequently, the defendant filed a second motion for summary disposition arguing our Supreme Court's decision in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), was controlling.

After a review of the record on appeal we conclude that State v. McAdam will not be applied retroactively to those cases where the defendant took advantage of a favorable guilty plea and then failed to raise the sentencing issue on direct appeal.   See Wilson v. State, 31 Kan.App.2d 728, 71 P.3d 1180, rev. denied 276 Kan. ---- (September 23, 2003).

Our Supreme Court in McAdam held that manufacture of methamphetamine under K.S.A. 65-4159(a) had the same elements as K.S.A. 65-4161(a) which deals with compounding.   A conviction under K.S.A. 65-4159(a) is a severity level 1 felony whereas a conviction under K.S.A. 65-4161(a) is a severity level 3 felony, except in certain specific circumstances not present here.  McAdam was a direct appeal from a conviction following a jury trial.

In Wilson, the defendant sought to have his sentence reduced from a level 1 drug felony for possession of ephedrine/pseudoephedrine to a severity level 4 drug felony for possession of drug paraphernalia, citing State v. Frazier, 30 Kan.App.2d 398, 42 P.3d 188.

In Frazier, this court concluded that possession of ephedrine or pseudoephedrine under K.S.A. 65-7006(a) and possession of drug paraphernalia, as proscribed by K.S.A. 65-4152(a)(3), are identical offenses despite their variations in terminology:

“Both offenses prohibit the possession of ephedrine or pseudoephedrine for use in the manufacture of a controlled substance. Ephedrine or pseudoephedrine fall within the definition of drug paraphernalia because they are materials used to manufacture a controlled substance.   See K.S.A. 65-4150(c).

“․ Although the statutes use different language, they require the same requisite criminal intent and, as such, the elements are identical.   As a result, we find that possession of ephedrine or pseudoephedrine and possession of drug paraphernalia are identical offenses.”  30 Kan.App.2d at 405, 42 P.3d 188.

This court held that the severity level 1 sentence imposed was illegal and 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.

In Wilson, the defendant, who had entered a guilty plea to possession of ephedrine/pseudoephedrine under K.S.A. 65-7006(a), filed a K.S.A. 60-1507 motion arguing his sentence was illegal pursuant to Frazier.   This court disagreed and held that where a defendant enters a no contest plea to take advantage of a favorable plea agreement and does not file a direct appeal, he or she cannot collaterally challenge the sentence imposed.

Here, the facts are substantially similar procedurally to those in Wilson.   First, the defendant entered into a plea agreement which resulted in the State dropping several other charges and agreeing to recommend a downward durational departure of 48 months.   The sentencing court, on May 11, 2001, accepted the recommendation of the State and imposed the downward departure sentence of 48 months.   No direct appeal was taken.   Instead, on April 9, 2003, the defendant filed a motion to correct the journal entry, arguing the complaint was defective and, under the facts alleged, the most he could have been convicted of was possession of drug paraphernalia.   The defendant argued his conviction was a denial of due process and asked the sentencing court to amend the journal entry to show a conviction of possession of drug paraphernalia.   The sentencing court denied the motion and defendant then perfected this appeal.   For the first time on appeal, the defendant raised the allegation that his sentence was illegal under McAdam.

We understand that the defendant's conviction and sentence would have become final 10 days after sentencing unless a timely notice of appeal was filed.   K.S.A. 22-3608.   Under the facts here, the defendant's sentence became final on May 25, 2001;  therefore, his conviction and sentence were final before the Frazier or McAdam decisions were rendered.

It is settled law that state courts are under no constitutional duty to apply their criminal decisions retroactively.   See Wilson, 31 Kan.App.2d at 733, 71 P.3d 1180.   Here, there is no claim that a new constitutional rule of criminal procedure is at issue and the defendant is not arguing that the McAdam decision stands for the proposition that he could not be convicted of the crime of conviction.   Under the United States Constitution, there is no right to a lesser sentence when two crimes have identical elements.  United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979).   In that case the Court said:

“[T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion [the prosecutor] exercises when choosing one of two statutes with identical elements.   In the former situation, once [the prosecutor] determines that the proof will support conviction under either statute, [the prosecutor's] decision is indistinguishable from the one [the prosecutor] faces in the latter context.   The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause.”   442 U.S. at 125, 99 S.Ct. 2198.

The defendant's only right to relief would arise from our Supreme Court's decisions in State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), and State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987). However, both Nunn and Clements were direct appeals and not collateral attacks as is the case here.   Neither Nunn or Clements govern the question presented here.

As in Wilson, we decline to hold that McAdam applies retroactively to those cases on collateral review because to do so would give the defendant the double benefit of a favorable plea agreement, with a significant downward durational departure, and then the benefit of an issue he failed to raise at the trial court or on direct appeal.

Affirmed.

RULON, C.J.