Opinion
112,435.
07-10-2015
STATE of Kansas, Appellee, v. Donald TUMMONS, Appellant.
Shannon S. Crane, of Hutchinson, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Shannon S. Crane, of Hutchinson, for appellant.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., HILL and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Supreme Court opinions are binding precedent on all appeals that are pending when their opinions are filed. Donald Tummons' direct appeal was pending when the Supreme Court ruled that anyone convicted of either possession of chemicals with intent to manufacture a controlled substance or the lesser felony of possession of drug paraphernalia with the intent to manufacture a controlled substance must be sentenced under the lesser crime since elements of the two offenses overlap. Because this ruling applied to Tummons' direct appeal, we hold his sentence must be vacated, and we remand to the district court for resentencing under the lesser penalty.
Convicted of drug crimes, Tummons appealed his convictions and sentence.
A jury convicted Tummons of manufacturing methamphetamine, possession of anhydrous ammonia with intent to manufacture a controlled substance, and possession of drug paraphernalia with intent to manufacture a controlled substance. The district court sentenced Tummons to 250 months' imprisonment and 36 months' postrelease supervision. Tummons appealed.
In his direct appeal, among other arguments, Tummons argued the identical offense sentencing doctrine applied to his case. A panel of this court held the doctrine did not apply. Tummons filed a petition for review with the Supreme Court, which the court subsequently denied. See State v. Tummons, No. 104,101, 2012 WL 1352822 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1256 (2013).
Within 1 year of the Supreme Court's denial, Tummons filed in the district court a pro se motion to correct an illegal sentence, again alleging the identical offense sentencing doctrine applied to his convictions. The district court denied the motion and held this sentencing issue had already been decided and there was no need to reconsider it. This appeal arises from that denial.
The only issue on appeal is the application of the identical offense sentencing doctrine. Tummons argues the doctrine applies because elements of K.S.A.2006 Supp. 65–7006, possession of anhydrous ammonia with the intent to manufacture a controlled substance, a severity level 2 felony, overlap with K.S.A.2006 Supp. 65–4152(a)(3), possession of drug paraphernalia with the intent to manufacture a controlled substance, a severity level 4 felony. Tummons argues the sentence is illegal due to this doctrine and he should be resentenced on that count as a severity level 4 drug felony. In response, the State contends a sentence that violates the rulings on the identical or overlapping offenses is not illegal. Additionally, the State claims this court has previously ruled that Tummons' sentence was proper and, since Tummons filed a petition for review which was denied, Tummons has no further avenue of relief.
Under Kansas' identical offense sentencing doctrine, as decided by the Kansas Supreme Court, if two criminal offenses have identical elements but different penalty classifications, a defendant convicted of either crime may be sentenced only under the lesser penalty provision. Legislative intent plays no role in an identical offense sentencing doctrine analysis. Rather, regardless of the legislature's intent, if the elements in overlapping provisions are identical, the due process considerations involved in the doctrine apply and a defendant may only be sentenced to the lesser penalty provided for in the identical overlapping provisions. See State v. Sandberg, 290 Kan. 980, Syl. ¶¶ 2–3, 235 P.3d 476 (2010).
In this case, the issue deals with Tummons' conviction for possession of anhydrous ammonia with intent to manufacture a controlled substance in violation of K.S.A.2006 Supp. 65–7006(a). In Tummons' view, the district court should not have sentenced him for a severity level 2 drug felony. Instead, he should have been sentenced for a severity level 4 drug felony as his crime had elements that overlapped with K.S.A.2006 Supp. 65–4152(a)(3), using or possessing drug paraphernalia with intent to manufacture a controlled substance, a severity level 4 drug felony. This view is based on K.S.A.2006 Supp. 65–4150(c), which defines the term drug paraphernalia to include all equipment and materials of any kind which are used or intended for use in manufacturing drugs. Thus, the argument goes, because anhydrous ammonia is a material of any kind possessed with the intent to manufacture a controlled substance, Tummons could only be sentenced for a severity level 4 drug felony on this count.
Indeed, the Kansas Supreme Court has ruled upon this issue in a way that is favorable to Tummons' viewpoint. On April 6, 2012, our Supreme Court issued its opinion in State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012). In Snellings, the court applied the identical offense sentencing doctrine and held that possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine under K.S.A.2007 Supp. 65–7006(a), a severity level 2 drug felony, 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), a severity level 4 drug felony, since ephedrine and pseudoephedrine are materials of any kind. Therefore, Snellings could only be sentenced under the lesser penalty provision. 294 Kan. at 158–59.
If we apply Snellings to Tummons' circumstances, the ruling is obvious. Under the identical offense sentencing doctrine created by the Supreme Court, Tummons could only be sentenced on that count for a severity level 4 felony drug crime and not a severity level 2 crime as the district court so sentenced him. Anhydrous ammonia is material of any kindest as ephedrine and pseudoephedrine was in Snellings. But the question arises, did the ruling in Snellings come too late to help Tummons?
Tummons filed his direct appeal on November 23, 2009, and docketed it on April 20, 2010. The Snellings opinion was filed on April 6, 2012, while Tummons' appeal was pending. On April 12, 2012, a panel of this court filed its opinion in Tummons' direct appeal–6 days after the Snellings ruling. Did this ruling apply to Tummons' direct appeal? We hold it did.
As Kansas Supreme Court opinions make the final ruling on all controversies on Kansas law, they are always significant. The general rule is that new opinions of the court, when filed, are binding on all cases pending on appeal and all future cases. See Stechschulte v. Jennings, 297 Kan. 2, 18, 298 P.3d 1083 (2013). Under this authority, the ruling in Snellings applied to Tummons' direct appeal. Even so, there are procedural complications that arise which must be addressed. What is the legal effect of this court's ruling on the direct appeal in Tummons in light of the Supreme Court's ruling when it denied Tummons' petition for review? Is it now the law of the case?
To answer, we return to the record and Tummons' direct appeal. The Tummons panel relied on a contrary Court of Appeals ruling handed down prior to Snellings:
“Tummons argues that [State v. ] Dalton [, 41 Kan.App.2d 792, 207 P.3d 257 (2008), rev. denied 287 Kan. 767 (2009),] was incorrectly decided because anhydrous ammonia under K.S.A. 65–7006(a) continues to fall within K.S.A. 65–4150's definition of drug paraphernalia, which includes ‘materials of any kind’ used to manufacture a controlled substance. But the Kansas Supreme Court denied review of Dalton, and this court continues to rely upon the holding in Dalton. [Citation omitted.] We therefore conclude that the district judge did not err in classifying Tummons' conviction as severity level 2 under K.S.A. 65–7006(a).” (Emphasis added.) 2012 WL 1352822, at *9.
But the holding in Dalton was clearly abrogated by the holding in Snellings, and this court did not consider Snellings in reaching its decision in Tummons' direct appeal.
At this point, we must return to the procedural path taken by Tummons' direct appeal. Tummons did not ask the Court of Appeals to reconsider. Instead, on May 14, 2012, he filed a petition for review with the Supreme Court. On page 11 of his petition, Tummons clearly argued that the Snellings ruling applied to his sentence. Nonetheless, the Supreme Court, on April 8, 2013, summarily denied Tummons' petition for review without comment. What, then, is the significance of that denial of review? Is the Court of Appeals' ruling in the direct appeal the law of the case now and, as such, immutable?
This court must determine whether finality under the law of the case doctrine occurred when Tummons' petition for review was filed. We look first at the rules.
Kansas Supreme Court Rule 8.03(g) (2014 Kan. Ct. R. Annot. 80) provides: “A denial of a petition for review imports no opinion on the merits of the case.” That seems clear. Moreover, the Supreme Court has dealt with the law of the case doctrine in State v. Collier, 263 Kan. 629, Syl. ¶ 3, 952 P.2d 1326 (1998). The court has spoken against relitigation of justiciable issues:
“This rule of practice promotes the finality and efficiency of the judicial process. The law of the case is applied to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts.” 263 Kan. 629, Syl. ¶ 2.
But the court in Collier left room to correct clear errors and cure injustice:
“When a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal, and reconsideration will not normally be given to such questions. Ordinarily, under the law of the case doctrine, once an issue is decided by the court, it should not be relitigated or reconsidered unless it is clearly erroneous or would cause manifest injustice. ” (Emphasis added.) 263 Kan. 629, Syl. ¶ 3.
Both exceptions apply here. Our decision in the direct appeal was clearly erroneous for failing to apply the Snellings ruling, and it is manifest injustice to permit a defendant to serve an incorrect prison sentence solely as a result of our court's erroneous ruling.
Given the record in this case, the applicability of Snellings to Tummons' case has never been litigated. Snellings had not yet been filed during the time of Tummons' trial, so the district court could not consider it. This court did not consider it as there was no motion to reconsider filed in the direct appeal. And, the Supreme Court's ruling denying review is not a ruling on the merits. It is clear, therefore, that no court has considered this ruling even though it is applicable to Tummons' sentence. Thus, this cannot be an instance of relitigation that the Supreme Court wishes to limit.
Another difficulty arises at this point. Can we proceed with this matter since Tummons filed a motion to correct an illegal sentence?
Simply put, Tummons is not entitled to relief under a motion to correct an illegal sentence. In State v. Harp, 283 Kan. 740, 744, 156 P.3d 1268 (2007), our Supreme Court made it clear that an illegal sentence was limited to questions of jurisdiction, conformity to the statute, and ambiguity:
“This court has defined an illegal sentence as a sentence imposed by a court without jurisdiction, a sentence which does not conform to the [applicable] statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served. [Citations omitted.]
“... [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.”
Thus, the relief Tummons seeks here is not available through a motion to correct an illegal sentence filed under K.S.A. 22–3504(1).
Ordinarily, pro se pleadings are liberally construed, giving effect to the pleading's content rather than the labels and forms used to articulate the defendant's arguments. A defendant's failure to cite the correct statutory grounds for his or her claim is immaterial. State v. Gilbert, 299 Kan. 797, 802, 326 P.3d 1060 (2014). But appellate courts will not make arguments for pro se litigants.
In Gilbert, the Supreme Court held that the pro se motion to correct an illegal sentence filed in that case could not be construed as a motion for relief under K.S.A. 60–1507. Gilbert filed his motion more than 10 years after his felony-murder conviction. Gilbert did not allege the manifest injustice required to bring an untimely motion under K.S.A. 60–1507. “Liberal rules of construction cannot transform the reality of a pleading's content or the argument being advanced, even when a litigant is pro se.” 299 Kan. at 798.
In contrast, Tummons filed his motion well within the 1–year period given by law to file a K.S.A. 60–1507 motion. This is not an attempt 10 years after the fact to see if some new legal doctrine applies to his sentence. Tummons' issue is simple and straightforward. If we view this as a collateral attack on this portion of his sentence under K.S.A. 60–1507, Tummons is entitled to relief. He cites a controlling ruling by the Kansas Supreme Court that calls for imposing a new sentence under a lower severity level on the sentencing grid. While the Supreme Court's ruling was only 6 days before the ruling on Tummons' direct appeal, that does not matter because his appeal was still pending when Snellings was decided. Six days is as good as 6 months in this context.
Moreover, the ruling of the Supreme Court on Tummons' petition for review is not a ruling on the merits of his motion, and the law of the case doctrine should not apply to this court's ruling on his direct appeal because it would, thus, create a manifest injustice. That is to say, it would deny the application of controlling Supreme Court precedent to Tummons' appeal-something a lower court cannot do.
Because the identical offense sentencing doctrine applies to Tummons' case, we vacate his sentence for possession of anhydrous ammonia and remand the matter with directions to the district court for resentencing on this count as a severity level 4 drug felony.
Sentence vacated and remanded with directions consistent with this opinion.