Opinion
No. 109,792.
2014-10-10
Joseph GRAZIER, Appellant, v. STATE of Kansas, Appellee.
Appeal from Morton District Court; Linda P. Gilmore, Judge.Meryl Carver–Allmond, Capital Appellate Defender, for appellant.Adam T. Carey, assistant county attorney, Eric L. Witcher, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Morton District Court; Linda P. Gilmore, Judge.
Meryl Carver–Allmond, Capital Appellate Defender, for appellant. Adam T. Carey, assistant county attorney, Eric L. Witcher, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Having learned in prison of the identical offense sentencing doctrine applied by the Kansas Supreme Court in two cases similar to his, Joseph Grazier sought a late appeal of his sentence for unlawful possession of drug precursors. He contends that application of the doctrine to his case would reduce his sentence. After he was sentenced, Grazier talked with his lawyer about an appeal, but when his lawyer told him that there were no appealable issues, he decided not to appeal. Because two similar cases were pending before the Supreme Court some 10 months before Grazier was sentenced, and his defense counsel admits to limiting his research to looking at the case citations listed beneath the statutes in the yearly Cumulative Supplement to the Kansas Statutes Annotated before advising Grazier there were no appealable issues, we hold the district court erred when it ruled that Grazier's counsel's performance did not fall below an objective standard of reasonableness.
We reverse that ruling. We also apply the identical offense sentencing doctrine to Grazier's sentence and find the correct severity level for Grazier's crime is severity level 4 on the drug crime grid. Therefore, we vacate his sentence and remand the case to the district court for resentencing.
Grazier bargained with the State and entered a plea.
Joseph Grazier entered into a plea agreement on June 7, 2011. Grazier pled no contest to unlawful possession of certain drug precursors or drug paraphernalia, a severity level 2, nonperson drug felony. On July 12, 2011, the court imposed a 56–month presumptive sentence. After he was sentenced, Grazier spoke to his attorney, James Kuharic, about the possibility of an appeal. Kuharic advised Grazier that an appeal would be senseless under the law at the time. Grazier never asked Kuharic to file an appeal.
While in prison, Grazier learned there were pending petitions for review before the Kansas Supreme Court that were pertinent to his particular crime. Grazier filed a motion under K.S.A. 60–1507 arguing he received an illegal sentence. More specifically, Grazier argued his sentence severity level was incorrect; he should have received a lesser sentence under State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012), and State v. Adams, 294 Kan. 171, 273 P.3d 718 (2012). The court in both Snellings and Adams held that under the identical offense sentencing doctrine, the elements of possession with intent to manufacture a controlled substance—a severity level 2 drug felony—are identical to elements of the offense of possession of drug paraphernalia with intent to manufacture a controlled substance—a severity level 4 drug felony. Snellings, 294 Kan. 149, Syl. ¶ 1; Adams, 294 Kan. 171, Syl. ¶ 7. Snellings and Adams were both decided on April 6, 2012.
Grazier argued that by applying the doctrine to his case he should have received a sentence for a drug felony with a severity level of 4. The district court held Grazier was trying to collaterally attack his sentence. Additionally, the district court found Grazier did not allege ineffective assistance of counsel and there was no reason to apply Snellings and Adams retroactively. The district court denied Grazier's K.S.A. 60–1507 motion.
Grazier appealed and filed a motion for remand. We granted Grazier's motion and remanded this matter for the district court to decide if Grazier was entitled to file an out-of-time direct appeal under one or more of the provisions of the ruling in State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982).
At the Ortiz hearing, both Grazier and his lawyer, Kuharic, testified. Kuharic testified he advised Grazier that based on the law at the time, there were no appealable issues. Kuharic was not aware that the Kansas Supreme Court had granted a review of Snellings and Adams when he informed Grazier of the law. Kuharic testified that he looked at the statute and annotations that followed but he did not read any cases. Kuharic worked with this issue for a while, so he was familiar with the charge. Grazier testified that based on Kuharic's advice, he never asked Kuharic to file an appeal.
The district court found that Kuharic's representation of Grazier was not unreasonable; therefore, it denied Grazier's request to file an out-of-time direct appeal under the third Ortiz exception. Grazier appeals.
We give a brief history of the doctrine.
The identical offense doctrine did not just pop up anew in Snellings and Adams. In 1989, the Kansas Supreme Court ruled: “Where 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.” State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989).
In 2004, the Kansas Supreme Court applied the doctrine to order the resentencing of a man convicted of conspiracy to manufacture methamphetamine. The court vacated his drug severity level 1 sentence and ordered the imposition of a drug severity level 3 sentence on remand. See State v. McAdam, 277 Kan. 136, 146–47, 83 P.3d 161 (2004).
Then, in State v. Campbell, 279 Kan. 1, Syl. ¶ 4, 106 P.3d 1129 (2005), the court applied the doctrine to equate the crime of possession of ephedrine with intent to manufacture methamphetamine with the crime of possession of drug paraphernalia. The court ruled that the elements of the crimes were the same whether Campbell had been charged under the ephedrine statute or the drug paraphernalia statute and ordered resentencing at the lower severity level. 279 Kan. at 16.
The Kansas Legislature entered the arena and struck the word “product” from the definition of drug paraphernalia in K.S.A. 65–4150(a) on May 25, 2006. L.2006, ch. 194, § 33. But the legislature left the barn door open by leaving the phrase “materials of any kind” in the definitions of drug paraphernalia. See K.S.A.2007 Supp. 65–4150(c).
In Snellings, the charge was possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance. That is similar to the charge levied against Grazier in this case. The court's ruling was filed on April 6, 2012. In Adams, the charge was possession of lithium metal with the intent to manufacture a controlled substance. That opinion was also filed on April 6, 2012. Citing the “materials of any kind” language found in the lesser crime, possession of drug paraphernalia, the court remanded both cases for resentencing at the lower severity level. Snellings, 294 Kan. at 157–59; Adams, 294 Kan. at 187.
These questions were pending when Grazier was sentenced.
Prior to the Kansas Supreme Court's holdings, State v. Snellings, No. 101,378, 2010 WL 2216900 (Kan.App.2010) (unpublished opinion), was filed on May 21, 2010, and State v. Adams, 43 Kan.App.2d 842, 232 P.3d 347 (2010), was filed on June 4, 2010. Both of these Court of Appeals opinions expressly rejected the application of the identical offense sentencing doctrine.
Petitions for review in both cases were filed with the Kansas Supreme Court in June 2010 seeking application of the identical offense sentencing doctrine to the sentences imposed in Snellings and Adams. The Snellings petition for review was granted on September 8, 2010. The Adams petition for review was also granted on September 8, 2010.
Grazier was sentenced on July 12, 2011—10 months after the petitions for review were granted in Snellings and Adams.
Analysis
What strikes us about this case is that had Grazier filed an appeal, it would have been pending when the Snellings and Adams Supreme Court opinions were filed. Undoubtedly, he would have received relief on his sentence. His case has the same issues as Snellings and Adams. Our Supreme Court has ruled that a criminal defendant whose direct appeal on a McAdam-type issue was still pending at that time is entitled to resentencing. State v. Barnes, 278 Kan. 121, 122–28, 92 P.3d 578 (2004).
Actually, this is a question of fundamental fairness. The Supreme Court has stated:
“The ... principle underlying all three exceptions recognized in Ortiz and its progeny is based on the facts that the defendant's failure to timely appeal was the result of being deprived of a right to which he or she was entitled by law: the statutory right to be advised of the right to appeal; the statutory right to be provided an attorney to file an appeal; or the right to have the appointed attorney perform effectively in perfecting the appeal.” (Emphasis added.) Guillory v. State, 285 Kan. 223, 228, 170 P.3d 403 (2007).
We emphasize that the decision to appeal is left to the client and not the attorney. But to make an informed decision, the client must be informed correctly by their counsel. The appointed attorney here looked at case citations listed beneath the statutes and pronounced that there were no appealable issues. We find that meager effort to be substandard.
All legal advice must be considered within its context. 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. We cannot see that counsel could have been unaware of the identical offense sentencing doctrine since it presented so many questions in the law of drug crimes in Kansas ever since the ruling in McAdam was handed down in 2004. Any attorney dealing with drug crimes and their sentences had to deal with the question of the applicability of the identical offense sentencing doctrine. We find it unreasonable that counsel did not at least tell Grazier of the doctrine. Had he done so and had Grazier refrained from pursuing an appeal, at least Grazier's choice would have been an informed one.
In State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008), while looking at the third exception under Ortiz, the court adopted the standard of performance for an attorney as stated in Roe v. Flores–Ortega, 528 U.S. 470, 470–72, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). In Flores–Ortega, the United States Supreme Court applied the ineffective assistance of counsel test to determine whether counsel was constitutionally ineffective for failing to file a notice of appeal. The defendant must establish (1) that counsel's representation fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defendant. 528 U.S. at 476–77.
We hold that Grazier's attorney was ineffective for failing to inform Grazier of the identical offense sentencing doctrine when discussing an appeal. The Snellings and Adams petitions for review had been granted and were available 10 months before Grazier was sentenced. McAdam was issued by the Supreme Court 7 years before Grazier was sentenced. While the listing of cases beneath each criminal statute in the supplements is helpful, they are truly limited. Published but annually, they cannot be considered comprehensive.
Moving to the next stage of the analysis, we hold it is self-evident that counsel's deficient performance prejudiced Grazier. He was sentenced as a drug severity level 2 felon when he should have been sentenced as a drug severity level 4 felon.
Finally, we see no purpose in granting Grazier a late direct appeal in his case. Instead, we vacate his sentence and remand the case to the district court for resentencing as a drug severity level 4 felon.
Reversed, sentence vacated, remanded with directions for resentencing.