STATE OF KANSAS, Appellee, v. M.L. SNELLINGS, Appellant.
No. 101,378
Supreme Court of Kansas
April 6, 2012
273 P.3d 739
LUCKERT, J.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of the same office, was on the brief for appellant.
Thomas R. Stanton, deputy district attorney, argued the cause, and Keith E. Schroeder, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
LUCKERT, J.: M.L. Snellings appeals his sentence, primarily arguing two of his convictions were assigned the wrong severity level by the sentencing court. In making this argument, Snellings attempts to apply the identical offense sentencing doctrine. Under that doctrine, where two offenses have identical elements, an offender can be sentenced to only the less severe penalty applying to the two offenses. Specifically, Snellings argues:
- An offense of possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance as defined in
K.S.A. 2007 Supp. 65-7006(a) , a severity level 2 drug felony, must be classified as a severity level 4 drug felony because it has identical elements to the offense of possession of drug paraphernalia with intent to manufacture a controlled substance as defined inK.S.A. 2007 Supp. 65-4152(a)(3) , which is a severity level 4 drug felony; and - An offense of manufacturing methamphetamine as defined in
K.S.A. 2007 Supp. 65-4159(a) , a severity level 1 drug felony, must be classified as a class A misdemeanor because it has identical elements to the offense of compounding a controlled substance containing ephedrine or pseudoephedrine as defined inK.S.A. 65-4164(a) , a class A nonperson misdemeanor.
We find merit in the first of these arguments and therefore vacate Snellings’ sentence for possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance and remand for resentencing on this count as a severity level 4 drug felony. However, we reject the second argument and also reject a third issue raised by Snellings, which is controlled by our decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Snellings pleaded no contest to eight drug related charges and a ninth charge of criminal possession of a firearm. At sentencing, the district court made findings regarding Snellings’ criminal history, granted Snellings’ motion for a downward durational sentencing departure, and imposed a controlling term of 144 months’ imprisonment. On direct appeal to the Court of Appeals,
Snellings filed a petition for review seeking the discretionary review of this court on only three issues, which we have stated above. This court granted Snellings’ petition for review and has jurisdiction over these three issues under
POSSESSION OF EPHEDRINE OR PSEUDOEPHEDRINE
We first consider Snellings’ argument that the offense of possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance, defined in
Identical Offense Sentencing Doctrine
The principle behind the identical offense sentencing doctrine, which is the focus of Snellings’ argument, is: ” ‘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. Cooper, 285 Kan. 964, 966-67, 179 P.3d 439 (2008) (quoting State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 [1989]); see State v. Fanning, 281 Kan. 1176, 1180, 135 P.3d 1067 (2006). Two policy considerations support this doctrine. First, courts cannot
This court has explained there are three situations where offenses may have identical provisions: (1) where one offense is a lesser included offense of the other; (2) where some provisions in two statutes overlap, the overlapping provisions apply to the charged crime, and the overlapping provisions are identical except for the penalty provisions; and (3) where all provisions in two statutes are identical except for the penalty provisions. The identical offense sentencing doctrine applies to the second and third situations. State v. Campbell, 279 Kan. 1, 14-15, 106 P.3d 1129 (2005) (quoting 4 LaFave, Israel & King, Criminal Procedure § 13.7[a], pp. 95-99 [2d ed. 1999]).
Snellings’ arguments suggest it is the second situation—overlapping statutes—that applies to his argument. “When two statutes contain overlapping provisions, this court must examine the facts in order to determine the area of overlap. Once it is determined which provisions of a statute apply, the only question is whether the overlapping provisions contain identical elements. That determination is made from the statute.” Cooper, 285 Kan. at 967 (citing Campbell, 279 Kan. 1). This argument requires us to interpret the relevant statutes, which presents a question of law subject to unlimited review. Cooper, 285 Kan. at 966.
In Campbell, 279 Kan. 1, this court applied these general principles to prior versions of the statutes at issue in the present case,
After the decision in Campbell, the legislature amended
Campbell and Frazier
Campbell, like Snellings, was accused of possessing ephedrine or pseudoephedrine with the intent to manufacture methamphetamine. At the time Campbell was decided and at the time Snellings committed the crime at issue in this case,
Campbell, like Snellings, argued his conviction should be classified as a severity level 4 drug felony because
In comparing the two statutes, the Campbell court noted there were two components that had to be identical for the identical offense sentencing doctrine to apply: (1) the offender had to pos-
“The definition of drug paraphernalia in
K.S.A. 65-4150(c) includes ‘products and materials of any kind’ 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) the legislature used the term ‘product’ as a synonym for ephedrine or pseudoephedrine. In the circumstances of this case, the elements of the offense were 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 drug paraphernalia statute. Consequently, he must be sentenced under the lesser penalty provisions for violation of 65-4152(a)(3).” Campbell, 279 Kan. at 16-17.
In arguing for this result, Campbell cited and relied on the Court of Appeals decision in Frazier, 30 Kan. App. 2d 398. The Frazier court had found that because the list of items in
Subsequent to the decision in Campbell, the legislature amended the definition of drug paraphernalia found in
Relying on Campbell and emphasizing the language used by the Court of Appeals in Frazier, Snellings argues ephedrine and pseudoephedrine are “materials” used in the manufacture of a controlled substance. The Court of Appeals panel in this case, relying on a previous decision by another panel, State v. Dalton, 41 Kan. App. 2d 792, 207 P.3d 257 (2008), rev. denied 287 Kan. 767 (2009), rejected this argument. Snellings, 2010 WL 2216900, at *3. Snellings argues that Dalton was incorrectly decided and the panel in this case erred in relying on that decision.
In Dalton, the defendant had argued that red phosphorus qualifies as “materials of any kind” in the definition of drug paraphernalia under
The Dalton court also explicitly rejected the argument that a contrary legislative intent was expressed by the legislature‘s use of the terms “materials” and “precursor chemicals” in
The Dalton court did not see this reference as either binding or persuasive. The court noted that the purpose behind
Several Court of Appeals cases have explicitly relied on Dalton to reject the argument that the “products” listed in
Reliance on Dalton is justified, the State argues, because the legislature clearly intended to exclude the items listed in
But as Snellings notes: “A statute should not be read to add something that is not found in the plain words used by the legislature or delete something that is clearly found within the ordinary language used.” Farmers Ins. Co. v. Southwestern Bell Tel. Co., 279 Kan. 976, 978, 113 P.3d 258 (2005). Applying this general rule, Snellings argues the Court of Appeals in this case and in Dalton ignored the words “materials of any kind.” Because, he suggests, ephedrine or pseudoephedrine still fall into the definition of drug paraphernalia as “materials of any kind” used to manufacture a controlled substance, such as methamphetamine, the Court of Appeals erred. Citing Frazier, Snellings claims the legislature‘s ” ‘poor research or inept drafting’ ” has contributed to its unsuccessful “fix” of the definition of drug paraphernalia.
Indeed, while the legislature‘s deletion of the word “products” paralleled the Campbell court‘s focus on that word, the failure to delete the word “materials” ignored the Court of Appeals decision in Frazier, which stated: “Ephedrine and pseudoephedrine fall within the definition of drug paraphernalia because they are materials used to manufacture a controlled substance. [Citation omitted.]” (Emphasis added.) Frazier, 30 Kan. App. 2d at 405. The Campbell court did not explicitly adopt that language, but it approved the Frazier decision and did not correct or criticize the
As Snellings points out, general rules of statutory interpretation require courts to give ordinary words their ordinary meaning. See State v. Finch, 291 Kan. 665, 670, 244 P.3d 673 (2011). “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.” Webster‘s II New Collegiate Dictionary 675 (1995). Because ephedrine and pseudoephedrine are items that are precursor chemicals used in the manufacture of methamphetamine, they fit within this definition of “material.” This point is illustrated by the legislature‘s own use of the word “materials,” in
Hence, we conclude ephedrine and pseudoephedrine are “materials” and, consequently, the offense of possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine under
MANUFACTURE OF METHAMPHETAMINE
In the other identical offense sentencing issue, Snellings argues he should have been sentenced to a class A misdemeanor under
The statute under which Snellings was charged,
The statute under which Snellings argues he should be sentenced,
Snellings argues this misdemeanor statute overlaps with
The panel agreed with Snellings that “compounding” and “manufacturing” were the same conduct, but the panel concluded the misdemeanor statute does not specifically apply to the manufacture of methamphetamine. The panel explained that
In seeking our review, Snellings argues first that the specific controlled substance that is manufactured is irrelevant; what counts, Snellings contends, is that there is an intent to manufacture some type of a controlled substance. We disagree. Snellings was specifically charged with the manufacture of methamphetamine. Hence, that is what the State had to prove. In order for the statutes to be subject to the identical offense sentencing doctrine, both statutes must be ones under which the State could prosecute the charged crime. If one of the statutes could not be used to convict the defendant of the charged crime, it does not matter that the statutes may overlap in other respects. Rather, “[w]hen two statutes contain overlapping provisions, this court must examine the facts in order to determine the area of overlap. Once it is determined which provisions of a statute apply, the only question is whether the overlapping provisions contain identical elements.” State v. Cooper, 285 Kan. 964, 967, 179 P.3d 439 (2008) (citing Campbell, 279 Kan. 1). Because
To make this alternative argument, Snellings points out that the
McAdam was convicted of conspiracy to unlawfully manufacture methamphetamine in violation of
McAdam argued that under the identical offense sentencing doctrine, he should have been sentenced under the lesser offense defined in
” ‘Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person‘s possession
with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; dispense or compound any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 and amendments thereto.’ ” (Emphasis added.) McAdam, 277 Kan. at 142.
The court agreed with McAdam and found that the two statutes had identical elements; both forbade the compounding of methamphetamine. Because the two statutes were identical with respect to McAdam‘s conduct, he could be sentenced under only the lesser penalty found in
That holding does not apply in this case, however, because the statute considered in McAdam is distinguishable from the statute Snellings wishes to have applied. More specifically, the statute at issue in McAdam,
Likewise, the second case cited by Snellings does not support his argument. In State v. Campbell, 279 Kan. 1, 14-15, 106 P.3d 1129 (2005), this court applied the identical offense sentencing doctrine analysis from McAdam to conclude that possession of drug paraphernalia with the intent to use it to manufacture methamphetamine in violation of
While neither McAdam nor Campbell assist in our analysis on this point, a comparable analysis is found in Cooper, 285 Kan. 964.
While Cooper is not controlling, its analysis is persuasive. Just as the prosecution did not have to prove that Cooper used ephedrine or pseudoephedrine to manufacture methamphetamine, the prosecution in this case did not have to prove that Snellings manufactured a product containing detectable quantities of ephedrine or pseudoephedrine. Thus, the Court of Appeals correctly concluded that manufacture of methamphetamine under
After reaching this conclusion, the Court of Appeals panel took a detour in its analysis that seems to arise from confusion over the application of our previous cases. In explaining the reason for the
On other occasions, the Court of Appeals has engaged in a similar analysis of how the facts of the particular case may fit the statute that is argued to be identical. Often these cases comment on confusion caused by some language in Fanning. See State v. Moore, 39 Kan. App. 2d 568, 590, 181 P.3d 1258 (2008), rev. denied 286 Kan. 1184 (2008) (“This court has sometimes struggled with the application of Fanning. However, generally, we have concluded that where the record contains evidence that the defendant actually used paraphernalia, manufacturing and possession of drug paraphernalia are identical offenses for sentencing purposes.“); State v. Allen, No. 95,628, 2007 WL 4158070, at *3 (Kan. App. 2007) (unpublished opinion) (“[T]he outcome of Fanning would apparently have been different if the record had supported Fanning‘s argument that he used drug paraphernalia to attempt to manufacture methamphetamine.“).
In Fanning, 281 Kan. 1176, this court considered whether the identical offense doctrine applied to the offenses of attempted manufacture of methamphetamine and possession of drug paraphernalia with the intent to manufacture methamphetamine. One of Fanning‘s arguments was that attempted manufacture was an
“Although the elements are nearly identical, they are not completely identical. Attempted manufacture of methamphetamine requires an additional element not found in possession of drug paraphernalia [prevented or intercepted in actually manufacturing methamphetamine]. Consequently, the two crimes are not identical under the rules applied in both McAdam and Campbell, which required the elements proven to be exactly the same under each statute.” Fanning, 281 Kan. at 1183.
After reaching this conclusion, the Fanning court went on to address the defendant‘s “use” argument and found “the record does not support Fanning‘s argument that he used drug paraphernalia to attempt to manufacture methamphetamine. The evidence in this case merely establishes possession of drug paraphernalia. There are no facts to establish that Fanning actually used the paraphernalia for any reason.” Fanning, 281 Kan. at 1184. This appears to be a peripheral analysis of the term “use” that was not intended to circumvent the court‘s focus on the statutory elements at issue in the case. In other words, even if the record had supported Fanning‘s argument that he used drug paraphernalia to attempt to manufacture methamphetamine, the elements would not have been identical because there remained an additional element in the attempt crime. But it is this discussion in Fanning that appears to have caused the confusion.
Despite this factual examination, the Fanning court returned its focus to the statutory elements, holding: “Limiting our analysis to McAdam and Campbell and the facts as supported by the record in relation [to] the statutory elements of these crimes, we hold that
Two years later in Cooper, this court cited Fanning for the concept that “[o]ffenses are identical when they have the same elements” and to reiterate that “for sentencing purposes, an appellate court must consider the statutory elements in conjunction with the underlying facts. [Citations omitted.]” Cooper, 285 Kan. at 966. The Cooper court then clarified that the identification of elements ultimately controls. As we have previously quoted, the Cooper court stated: “When two statutes contain overlapping provisions, this court must examine the facts in order to determine the area of overlap. Once it is determined which provisions of a statute apply, the only question is whether the overlapping provisions contain identical elements.” Then, in the next sentence, the court stressed: ”That determination is made from the statute.” (Emphasis added.) Cooper, 285 Kan. at 967 (citing Campbell, 279 Kan. 1). In other words, the facts of the case are only relevant to determine which provisions of a statute apply—a preliminary step—not as a final step of examining the record to determine what evidence was used to prove the overlapping elements.
For example, in this case, we look to the facts to tell us that Snellings was convicted of manufacturing methamphetamine. Once this is established, a comparison of the elements of
We therefore affirm Snellings’ sentence for manufacture of methamphetamine as a severity level 1 drug felony.
APPRENDI/IVORY ISSUE
Snellings’ final argument is that the district court violated his
Snellings acknowledges that this court has consistently rejected this argument. See, e.g., State v. Bennington, 293 Kan. 503, Syl. ¶ 9, 264 P.3d 440 (2011); State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Fewell, 286 Kan. 370, 394-96, 184 P.3d 903 (2008); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). This court continues to hold that the use of prior convictions for sentencing enhancement is constitutional; thus, the Court of Appeals correctly found no merit to Snellings’ contention. Snellings, 2010 WL 2216900, at *4.
The Court of Appeals is affirmed in part and reversed in part. The district court is affirmed in part and vacated in part. Specifically, Snellings’ sentence for violation of
MORITZ, J., not participating.
PAULA B. MARTIN, District Judge, assigned.
*
JOHNSON, J., concurring: I concur in the result reached by the majority. Specifically, with respect to Snellings’ sentence for manufacturing methamphetamine, I agree that the identical offense sentencing doctrine is not applicable. On the record before us, we cannot say that methamphetamine is also a compound that contains any detectable quantity of ephedrine or pseudoephedrine, i.e., the facts of this case do not definitively establish an overlap in the provisions of
“Although, as a factual matter, paraphernalia must have been used to manufacture methamphetamine, the State is not required to prove this fact. For example, the State could present a witness who would testify, ‘I watched the defendant manufacture methamphetamine.’ A defendant might also confess, ‘I manufactured methamphetamine.’ In either such case, the State would have established a prima facie case and would not be required to prove how that manufacturing occurred or that any paraphernalia was used in the process. Even if the evidence described the scientific process and circumstantially established that paraphernalia had been used in the process, the jury would not be instructed that it must find beyond a reasonable doubt that the defendant possessed paraphernalia for the purpose of manufacturing the methamphetamine.” Cooper, 285 Kan. at 967.
First, I would point out that the last sentence of the foregoing quote, as well as the majority opinion here, confuses the possessing of paraphernalia with intent to manufacture methamphetamine with the using of paraphernalia to manufacture methamphetamine. The using of paraphernalia to manufacture connotes that an act is being performed, rather than an act that is being contemplated. That distinction is important because the crime proscribed by
” ‘Manufacture’ means the production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly or by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container.”
Cooper‘s examples of how manufacturing can be proved without proving the use of paraphernalia to manufacture simply miss the mark. Although we permit a defendant to plead guilty, we do not imbue the defendant with the legal authority to make the determination of whether a crime has, in fact, been committed. Instead, we require that the judge taking the plea be “satisfied that there is a factual basis for the plea.”
In my view, Cooper‘s concession that, factually, one cannot manufacture methamphetamine without using paraphernalia to manufacture methamphetamine is sufficient to establish an overlap in the two statutes. Cooper apparently construes the doctrine as requiring that the elements of two offenses must be semantically identical, i.e., stated in precisely identical terms. In other words, driving a vehicle recklessly would not be identical to an offense described as using a vehicle to drive recklessly. Likewise, under Cooper‘s logic, to convict a defendant of digitally raping a victim the State would not be required to prove that the defendant used a finger to rape the victim if an eyewitness states that he or she saw the defendant rape the victim.