Opinion
No. 111,057.
2014-09-26
STATE of Kansas, Appellee, v. Kelly ANDRADE, Appellant.
Appeal from Reno District Court; Trish Rose, Judge.Sam S. Kepfield, of Hutchinson, for appellant.Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kelly Andrade appeals the district court's dismissal of his motion to correct illegal sentence. As a result of events that took place on or about January 2, 2006, Andrade pled guilty to one count each of conspiracy to manufacture methamphetamine, possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance, and other drug-related charges. At his sentencing on June 15, 2007, the district court imposed a controlling sentence of 164 months' imprisonment but granted a downward dispositional departure and assigned Andrade to the Labette Correctional Conservation Camp followed by probation. Andrade did not appeal his sentence.
In August 2009, after Andrade stipulated to multiple probation violations, the district court revoked his probation and ordered him to serve the underlying prison sentence. State v. Andrade, No. 103,570,2011 WL 1878125, at *2 (Kan.App.2011) (unpublished opinion). Andrade appealed and this court affirmed the probation revocation. 2011 WL 1878125, at *2.
In August 2013, Andrade filed a motion to correct illegal sentence. He argued that under State v. Merz, No. 95,432, 2007 WL 1529651 (Kan.App.2007) (unpublished opinion), rev. denied 285 Kan. 1176 (2007) ( Merz I ), and State v. Merz, No. 100,573, 2010 WL 653094 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1100 (2010) ( Merz II ), his convictions of conspiracy to manufacture methamphetamine and possession of ephedrine or pseudoephedrine with the intent to manufacture a controlled substance should have been scored as drug severity level 4 offenses.
The district court appointed counsel and scheduled a status hearing. On August 15, 2013, the State filed a motion for summary dismissal of Andrade's motion, arguing that the Kansas Court of Appeals has repeatedly ruled that manufacture of methamphetamine was not an identical offense to possession of drug paraphernalia with the intent to manufacture methamphetamine. The State acknowledged that Merz I had found the crimes identical, but noted that the Kansas Supreme Court subsequently held that the two crimes were not identical. State v. Cooper, 285 Kan. 964, Syl. ¶ 3, 179 P.3d 439 (2008). The State further pointed out that in Merz II, this court recognized that Cooper overruled MerzL Merz II, 2010 WL 653094, at *5–6. The State maintained that Cooper, rather than Merz I, controlled the severity levels of Andrade's relevant convictions.
In September 2013, Andrade's counsel filed a second motion to correct illegal sentence. In this motion, Andrade argued that because he was sentenced the day Merz I was filed, Merz I was the controlling law at the time of his sentencing. He contended that if he had been properly sentenced under the law in effect at the time of his sentencing— Merz I—he would have been sentenced for a severity level 4 offense. Andrade argued in the alternative that he should be allowed to pursue his request for resentencing as an untimely direct appeal under State v. Ortiz, 230 Kan. 733, 735–37, 640 P.2d 1255 (1982).
The district court held a hearing on September 20, 2013. After hearing argument of counsel, the district court took the matter under advisement. On September 24, 2013, the district court filed its order granting the State's motion for summary dismissal, relying primarily on Cooper. The district court's order did not address Andrade's Ortiz argument, and Andrade did not file a request for additional factual findings or conclusions of law. Andrade timely appealed the district court's judgment.
On appeal, Andrade claims that the district court erred in summarily dismissing his motion to correct illegal sentence. Initially, although neither party addresses jurisdiction, we note that it appears that this court does not have jurisdiction over this appeal. “[I]t is the responsibility of this court to consider the issue [of jurisdiction] sua sponte, if necessary. [Citation omitted.]” State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010).
Andrade began this action with a motion to correct illegal sentence pursuant to K.S.A. 22–3504. He requested resentencing under the identical offense doctrine, which requires that “ “ ‘[w]here 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.’ “ [Citations omitted.]” State v. Snellings, 294 Kan. 149, 151, 273 P.3d 739 (2012).
In State v. Harp, 283 Kan. 740, 744, 156 P.3d 1268 (2007), our Supreme Court held that “Kansas case law has clearly established that 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.” See also State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004) (finding that sentence violating McAdam [, 277 Kan. 136, 83 P.3d 161 (2004) ] was not “illegal” and could not be modified under K.S.A. 22–3504). Thus, relief of the sort Andrade sought here is not available through a motion to correct illegal sentence filed pursuant to K.S.A. 22–3504. If the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. McCoin, 278 Kan. at 468.
The only procedural avenue through which Andrade could properly raise this issue would be a motion to file a direct appeal out of time under Ortiz. Andrade's second motion to correct illegal sentence requested this alternative relief; however, the district court's order did not address Andrade's Ortiz argument. Andrade did not file a request for additional factual findings or conclusions of law in district court. Similarly, he has failed to address this issue on appeal. An issue not briefed by the appellant is deemed waived and abandoned. State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012).
Finally, if we addressed the merits of the issue on appeal, Andrade's argument would fail. Based on Cooper, Andrade's relevant convictions should not have been scored as drug severity level 4 offenses under the identical offense doctrine. 285 Kan. at 966–68. Even if Andrade was now allowed to pursue a direct appeal out of time, the court would apply the law as it exists at the time of granting the untimely appeal. See State v. Thomas, 283 Kan. 796, 805, 156 P.3d 1261 (2007). In other words, the holding in Cooper would be applied to Andrade's sentence rather than the holding in Merz I. As a result, Andrade would not be entitled to any relief.
Appeal dismissed.