State v. MilesState v. Miles
- Reporters:
- , ,
- Before:
- Rulon
Defendant Maurice Miles appeals the sentence imposed for his conviction for conspiracy to manufacture methamphetamine, arguing the conduct proscribed by
*212The State charged the defendant with manufacture of methamphetamine, in violation of
Pursuant to plea negotiations, the defendant entered a plea of nolo contendere to the charge of conspiracy to manufacture methamphetamine. In exchange, the State dismissed the remaining counts. Consistent with the holding of McAdam, the district court sentenced the defendant to 26 months based upon a severity level 3 drug felony conviction. The sentence was ordered to run consecutive to a Missouri sentence.
The defendant contends the district court should have sentenced him for a severity level 4 drug felony because some of the conduct proscribed in
Despite the defendant’s failure to raise this issue before the district court, this court possesses jurisdiction to review this sentencing claim on a direct sentencing appeal. See State v. Barnes, 278 Kan. 121, 123-24, 92 P.3d 578 (2004). The issue raised in this appeal requires this court to construe the pertinent statutes, which is a question of law subject to unlimited review. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
“Drug paraphernalia” is statutorily defined as
“all equipment, products and materials of any land which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the uniform controlled substances act.”K.S.A. 65-4150(c) .
The fundamental rule of statutory interpretation is that the intent of the legislature, where ascertainable, governs. Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005). If the language of the statute is unambiguous, the intent of the legislature is presumably effected therein, and the appellate court need not resort to legislative histoiy or rules of construction. See State v. Campbell, 279 Kan. 1, 6, 106 P.3d 1129 (2005).
In Campbell, our Supreme Court considered the similar question of whether
“The conduct prohibited byK.S.A. 65-7006(a) is a defendant’s act of knowingly possessing ephedrine or pseudoephedrine with the intent to use the product to manufacture a controlled substance. The conduct prohibited byK.S.A. 65-4152(a)(3) is a defendant’s act of knowingly possessing drug paraphernalia with the intent to use it to manufacture a controlled substance. The definition of drug paraphernalia inK.S.A. 65-4150(c) includes products and materials of any land’ which are intended for use in manufacturing a controlled substance. Thus, the conduct prohibited byK.S.A. 65-4152(a)(3) may include a defendant’s act of knowingly possessing a product with the intent to use it to manufacture a controlled substance. Ephedrine and pseudoephedrine are products used in the manufacture of a controlled substance, methamphetamine. Indeed, inK.S.A. 65-7006(a) tire legislature used the term ‘product’ as a synonym for ephedrine or pseudoephedrine. In the circumstances of this case, the elements of the offense *214were knowingly possessing ephedrine or pseudoephedrine with the intent to use it to manufacture a controlled substance. The elements were the same whether Campbell had been charged under the ephedrine statute or the drugparaphernalia statute. Consequently, he must be sentenced under the lesser penalty provisions for violation of 65-4152(a)(3).” (Emphasis added.) Campbell, 279 Kan. at 16-17.
The defendant invites us to construe the act of manufacturing methamphetamine as encompassing the use of drug paraphernalia to manufacture methamphetamine. From a practical standpoint, the defendant’s argument holds some validity. Due to the broad definition of drug paraphernalia provided by statute, it would be impossible to manufacture any controlled substance without drug paraphernalia. Consequently, any attempt to convict a defendant of manufacture of methamphetamine (or attempted manufacture of methamphetamine) under
For purposes of identifying identical proscribed conduct under different statutes, however, the test is not whether proving one offense necessarily proves the other but whether the same conduct, as defined by the elements contained within each statute, is proscribed.
*215As the statutes proscribe different conduct, even though the conduct is inextricably connected, the rule of McAdam does not require resentencing of the defendant.
Affirmed.