Friday, January 20, 2006

Best of 2005 (Part II)

Another continuing story from 2004 is the unfolding McAdam saga. Developments in 2005 included State v. Boley, a Newton case, where the KSC held that a defendant who sought a McAdam sentence on direct appeal did not violate a plea agreement that included joint recommendations for a specific sentence. This was no surprise to those of who have tried (unsuccessfully) to withdraw a plea when a judge didn't follow a sentencing agreement.

On the bad side, in Bryant v. State, from Pratt, the KSC held that Mr. Bryant could not assert McAdam for the first time in a 1507 motion. Of course I always thought you could raise a claim that a sentence was contrary to Kansas law because the statute says you can raise a claim that a sentence was contrary to Kansas law. But the KSC disagreed and said (I guess) that you can only raise a sentencing claim in a 1507 motion if it is "illegal" or unconstitutional. Because neither of those definitions apply to a McAdam claim, Mr. Bryant lost.

But because good things come to those who wait, in State v. Phinney, another Newton case, the KSC held that Ortiz applies in these cases, so defendants that can show that they were not notified of the right to appeal can seek a late direct appeal and obtain McAdam relief that way. So now a large number of these clients who lost their collateral attacks (like Mr. Bryant) are trying to go with late direct appeals. Before all this mess, the COA was pretty accepting about allowing late notices of appeal under Ortiz. My experience so far is that the COA has engaged in more scrutiny in these McAdam cases. But we have also seen some cases decided on summary disposition under Phinney (after a long wait).

Finally, in Laymon v. State, from Rice County, Robert Anderson won a sentence reversal because the ADO was ineffective for failing to raise a McAdam claim in an appeal pending at the time McAdam was decided. The KSC uses language in Laymon and Boley that makes it appear that the KSC thinks McAdam was forseeable before January 20, 2004, the date it was issued, but what date is the dividing line between deficient and effective performance remains to be seen. It might be July 9, 2004 (the date PR was granted in McAdam), April 11, 2003 (the date of the published COA decision in McAdam), December 12, 2002 (the date of the first Layton decision, which is the first mention of the overlap regarding compounding), October 11, 2002 (the date of the Luttig decision, which was the first published case rejecting any issue regarding manufacture sentencing), March 15, 2002 (the date Frazier was issued granting relief under the identical offense doctrine), or eariler.

We will likely see more decisions on Ortiz and IAC in the McAdam context as well as possible decisions about the overlap between 65-4159 (manufacture) and 65-4152 (use of paraphernlia to manufacture) and also decisions about whether 65-4127c applies to 65-4141 and 65-4142. Keep an eye out!

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