Opinion
No. 109,506.
2015-02-19
STATE of Kansas, Appellee, v. Cara N. PERRY, Appellant.
Appeal from Brown District Court; John L. Weingart, Judge.Carol Longenecker Schmidt and Joanna Labastida of Kansas Appellate Defender Office, of Topeka, for appellant.Kevin M. Hill, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Brown District Court; John L. Weingart, Judge.
Carol Longenecker Schmidt and Joanna Labastida of Kansas Appellate Defender Office, of Topeka, for appellant. Kevin M. Hill, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., POWELL and STEGALL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Cara Perry brought this collateral challenge to the sentence she received upon convictions for both distributing and possessing a drug precursor. She claims that those offenses are identical to the lesser crimes of distribution and possession of drug paraphernalia, thus requiring that she be resentenced. We find that Perry's challenge is properly converted to a timely filed direct appeal pursuant to the exceptions set out in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1980). Furthermore, we agree that Perry's convictions for distribution of a drug precursor and possession of a drug precursor are identical to the lesser offenses of distribution of drug paraphernalia and possession of drug paraphernalia. We therefore reverse and remand with directions that Perry be resentenced.
Factual and Procedural Background
On March, 5, 2012, Perry pled no contest to one count each of unlawful distribution of a drug precursor and unlawful possession of a drug precursor, both level 2 drug felonies in violation of K.S.A.2011 Supp. 21–5710. She was sentenced on April 6, 2012. The district court sentenced her to 54 months' imprisonment for distribution of a drug precursor and 49 months for possession of a drug precursor, with the sentences running concurrently. The district court informed Perry of her right to appeal, and she confirmed on the record that she understood how to appeal her case. Perry did not file a direct appeal. However, on the day she was sentenced, our Supreme Court released its opinion in State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012), holding that possession of drug precursors and possession of drug paraphernalia are identical crimes because precursors meet the statutory definition of paraphernalia. 294 Kan. at 158.
On July 2, 2012, Perry filed a pro se motion pursuant to K.S.A. 60–1507 arguing that under Snellings she should have been sentenced under the provisions of K.S.A.2011 Supp. 21–5710(b) for possession of drug paraphernalia, a level 4 drug felony. The district court conducted a hearing, and the State argued that Snellings could not apply as Perry did not file a direct appeal of her sentence. Relying on Bryant v. State, 280 Kan. 2, Syl. ¶ 3, 118 P.3d 685 (2005) (defendants who enter guilty pleas are barred from relying on the identical offense doctrine when collaterally attacking their sentences if they failed to file a direct appeal), the State argued that Perry was barred from collaterally attacking her sentence.
The district court side-stepped the Bryant issue and held that Snellings applied to count two, possession of a drug precursor, but did not apply to count one, distribution of a drug precursor. Accordingly, the district court reduced Perry's sentence from a level 2 drug felony to a level 4 drug felony for possession of drug paraphernalia, changing the sentence on that count from 49 months' to 11 months' imprisonment. The modified sentence was still to run concurrent with the 54–month sentence for distribution. The district court then informed Perry of her right to appeal and encouraged her to do so in order to clarify this issue. The State chose not to challenge the district court's ruling.
Perry appealed and, mindful of Bryant, we retained jurisdiction but remanded the case to the district court for the sole purpose of conducting an Ortiz hearing to determine whether Perry's 60–1507 motion should be construed as a direct appeal of her sentence. See Ortiz, 230 Kan. 733. In Ortiz, our Supreme Court recognized three exceptions to the requirement of a timely notice of appeal, thus allowing those within the exceptions to file direct appeals out of time. Ortiz allows a defendant to file a late appeal if the defendant was not informed of the right to an appeal, was not furnished an attorney to perfect an appeal, or was furnished an attorney for appeal who failed to perfect and complete the appeal. Ortiz, 230 Kan. 733, Syl. ¶ 3. Perry claimed the first and third exceptions.
At the Ortiz hearing, Perry testified that she and her attorney had discussed an appeal. However, her attorney told her she had no grounds for an appeal and she could not afford one in any case. Perry acknowledged that she was informed of her appellate rights during sentencing and was aware that appellate counsel could be appointed for her. She further testified that while she never asked or directed her attorney to appeal, this was because he had told her there was nothing to appeal in her case and she believed she had no appellate options. She testified that had she been aware of Snellings, she would have directed her counsel to appeal.
Perry's attorney, Robert Arnold III, testified that he discussed with Perry the fact that she got the benefit of her plea bargain by not being sentenced to consecutive sentences and having charges dropped against her. He also advised her that if she appealed there was a very low likelihood of success. He told Perry that he would not file an appeal for her without pay, and Perry agreed that she could not pay and never asked Arnold to file an appeal. Finally, Arnold admitted that he did not become aware of Snellings until months after Perry's sentencing.
After hearing testimony and reviewing the record, the district court found Perry did not satisfy any of the Ortiz exceptions as she was notified of her right to appeal, had counsel available if she wanted to appeal, and did not direct her counsel to file an appeal. Perry then appealed the district court's determination that she was not within any of the Ortiz exceptions.
Analysis
1. Is Perry entitled to convert her 60–1507 motion to a direct appeal pursuant to one one of the Ortiz exceptions?
We review the factual underpinnings of a trial court's Ortiz ruling for substantial competent evidence, but the ultimate legal determination of whether those facts fit within an Ortiz exception is reviewed de novo. State v. Gill, 287 Kan. 289, 293, 196 P.3d 369 (2008). We have no difficulty concluding that there was substantial competent evidence to support the district court's finding that the first Ortiz exception does not apply. Perry claims that our Supreme Court's decision in State v. Patton, 287 Kan. 200, Syl. ¶ 2, 195 P.3d 753 (2008), requires that a district court specifically inform a criminal defendant of his or her right to appeal the severity level of the sentence imposed. However, a panel of this court recently clarified this issue in State v. Shelly, 49 Kan.App.2d 942, 948, 318 P.3d 666 (2014):
“Despite the language used by the Supreme Court in Patton, we do not interpret the court's decision in that case as requiring a sentencing judge to specifically advise the defendant of his or her right to appeal the severity level of the sentence. The defendant in Patton happened to be challenging the severity level of his conviction and sentence. Thus, in ruling that a sentencing judge must advise the defendant of the right to appeal the severity level of the sentence, the Supreme Court was only using language applicable to the facts of that particular case.”
K.S.A.2011 Supp. 22–3424(f) and K.S.A. 22–4505 only require the district court to inform the defendant of his or her right to appeal and the right to have appointed counsel if the defendant is indigent. The most fundamental rule of statutory interpretation requires us to remain faithful to the intent of the legislature if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). Here, there is no indication that the legislature intended the district court to specifically advise a defendant of his or her right to appeal the severity level of the defendant's crimes. In fact, as noted in Shelly, this could have the effect of misleading the defendant to believe that no other issue may be appealed beyond the severity level of his or her convictions. 49 Kan.App.2d at 949. Here, the record of Perry's sentencing reveals that the district court correctly informed her of her right to appeal. Therefore, the district court did not err in finding that the first Ortiz exception did not apply to Perry's case.
Whether or not a defendant meets the third Ortiz exception depends first on whether the defendant's attorney has met the minimum performance standards that are constitutionally required as set forth in Roe v. Flores–Ortega, 528 U.S. 470, 476–77, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Patton, 287 Kan. at 223–24. The Flores–Ortega test requires that the defendant show counsel's representation “ ‘fell below an objective standard of reasonableness.’ “ 528 U.S. at 476–77 (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). “In making this determination, courts must take into account all the information counsel knew or should have known.” 528 U.S. at 480. The second prong of the Strickland test requires the defendant to demonstrate prejudice; however,
“[u]nder Flores–Ortega, if appointed or retained counsel has failed to file or perfect a direct appeal by a criminal defendant, we will presume the existence of prejudice. This is not, however, the same as a finding of prejudice per se, requiring application of the third Ortiz exception. The defendant must still demonstrate that, but for counsel's failure, he or she would have taken a timely direct appeal. The defendant need not show, as he or she would have had to show if we were using the Strickland standard as our benchmark, that such a timely direct appeal would have been successful.” Patton, 287 Kan. at 225.
It is undisputed that Arnold and Perry discussed appellate options both before and after sentencing and that Perry did not request or direct Arnold to file an appeal. However, it is likewise undisputed that Arnold was unaware of our Supreme Court's decision in Snellings during the time period when Perry could have timely filed her appeal and, further, that had Perry been made aware of Snellings, she would have appealed.
Arnold incorrectly told Perry that there existed no legal grounds for an appeal. Had she been properly advised, Perry would have pursued the issue on direct appeal. Counsel's failure to learn of Snellings and advise his client accordingly was objectively unreasonable and deprived Perry of her right to file a direct appeal. Accordingly, there is substantial evidence to support Perry's claim under the third Ortiz exception that the failure of her counsel to correctly inform her of the state of the law amounts to a failure of counsel to file or perfect an appeal.
Because Perry has met the narrow and exceptional circumstances required to claim an Ortiz exception, we treat Perry's filing as a timely direct appeal of her sentence, permitting us to reach the merits of her claim. See State v. Phinney, 280 Kan. 394, 406, 122 P.3d 356 (2005). 2. Does Snellings Apply to Perry's Conviction for Unlawful Distribution of a Drug Precursor?
The identical offense doctrine requires that “where two offenses have identical elements, an offender can be sentenced to only the less severe penalty applying to the two offenses.” Snellings, 294 Kan. at 150. Whether the identical offenses doctrine applies is a question of law over which appellate review is unlimited. 294 Kan. at 152.
In Snellings, the defendant was convicted of unlawful possession of a drug precursor in violation of K.S.A.2007 Supp. 65–7006(a), a level 2 drug felony. K.S.A.2007 Supp. 65–7006(a) makes it illegal to “possess ephedrine, pseudoephederine, or red phosphorus, ... with intent to use the product to manufacture a controlled substance.” On appeal, Snellings argued that this offense was identical to the unlawful possession of drug paraphernalia in violation of K.S.A.2007 Supp. 65–4152(a)(3), a severity level 4 drug felony. That provision prohibits possession with intent to use “any drug paraphernalia to plant, propagate ... manufacture ... compound ... produce, process ... or distribute a controlled substance ....“ The term “drug paraphernalia” includes “all equipment and materials of any kind which are used, or primarily intended or designed for use in ... manufacturing, compounding, converting, or producing ... a controlled substance ....“ K.S.A.2007 Supp. 65–4150(c).
The Snellings decision turned on the meaning of the word “material” understood in its plainest sense. It is a fundamental rule of statutory interpretation that common words be given their ordinary meaning. State v. Finch, 291 Kan. 665, 670, 244 P.3d 673 (2011). Our Supreme Court consulted Webster's Dictionary to determine that “ ‘Material’ is defined in part as ‘the substance or substances out of which a thing is or can be made; [c]omposed of or relating to ... substances.’ “ Snellings, 294 Kan. at 158 (Quoting Webster II New Collegiate Dictionary 675 [1995] ). Because ephedrine and pseudoephederine are precursor chemicals used to manufacture methamphetamine, they are materials, which also makes them paraphernalia. Therefore, our Supreme Court concluded that “ephedrine and pseudoephedrine are ‘materials' and, consequently, the offense of possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine under K.S.A.2007 Supp. 65–7006(a) is identical to the offense of possession of drug paraphernalia with intent to manufacture methamphetamine under K.S.A.2007 Supp. 65–4152(a)(3).” Snellings, 294 Kan. at 158.
Here, Perry pled no contest to the offense of unlawful distribution of a drug precursor pursuant to K.S.A.2011 Supp. 21–5710(a)(1). However, K.S.A.2011 Supp. 21–5710(b) makes it illegal to distribute any drug paraphernalia. K.S.A.2011 Supp. 21–5701(f) defines paraphernalia as “all equipment and materials of any kind which are used, or primarily intended or designed for use in ... manufacturing, compounding, converting, or producing ... a controlled substance.” (Emphasis added.) It is clear that the logic of Snellings should also apply to Perry's distribution charge. The statutory language makes it clear that drug paraphernalia includes “materials of any kind” that are used in the manufacture of a controlled substance. K.S.A 2011 Supp. 65–4150(c). Thus, all precursors are, by definition, also paraphernalia. The only distinction between Snellings and Perry's case is that Snellings dealt with possession while Perry pled to distribution. This is a distinction without a difference, however, as the key fact implicating the identical offenses doctrine is the same— i.e., that drug precursors and drug paraphernalia are completely overlapping categories.
Therefore, because the precursors defined in K.S.A.2011 Supp. 21–5710(a) meet the definition of paraphernalia in K.S.A.2011 Supp. 21–5701(f), distribution of precursors is an identical offense to distribution of paraphernalia, just as possession of precursors is an identical offense to possession of paraphernalia. The decision of the district court is reversed and remanded with instructions to resentence Perry to a severity level 4 drug felony pursuant to K.S.A.2011 Supp. 21–5710(b).
Reversed and remanded with directions.