Thursday, January 24, 2008

Manufacture sentencing win

Washburn student intern Melissa Schoen and I won a partial victory in State v. Spangler, No. 96,326 (Kan. App. Dec. 21, 2007). reversing one conspiracy count and getting a remand for resentencing on the manufacture count. This sentencing issue involves a fairly new argument (post-McAdam) regarding manufacture sentencing.

You may remember that, in State v. McAdam, the KSC held that manufacture under K.S.A. 65-4159 was identical to compounding under K.S.A. 65-4161 and K.S.A. 65-4161 usually has a lower sentence (SL1 vs SL3). Under the identical offense doctrine, a defendant is entitled to the lower sentence. So we have seen several hundred defendants across the state either get lower sentences or get resentenced to lower sentences.

McAdam was decided on January 30, 2004. The 2004 Legislature passed a "McAdam-fix" removing compounding from K.S.A. 65-4161 and therefore eliminating the McAdam issue for persons convicted of manufacture occurring on or after May 20, 2004 (the effective date of the act).

Since the McAdam-fix, we have been raising another identical offense doctrine issue in manufacture cases. K.S.A. 65-4159 makes it illegal (and a SL1 drug offense) to manufacture a controlled substance. K.S.A. 65-4152 makes it illegal (and a SL4 drug offense) to use paraphernalia to manufacture a controlled substance. Seems identical. That's how a person manufactures methamphetamine--they use paraphernalia. Not very many people have been prosecuted for "use" of paraphernalia under K.S.A. 65-4152, but it is a part of that statutory definition. So we have argued that the offenses are identical and defendants should receive the lesser sentence.

We had not had much success with this argument until fairly recently. When the argument (or a version of it) was brought before the KSC in State v. Fanning, the KSC noted that Fanning was convicted of attempted manufacture and that the record disclosed no actual evidence of use of paraphernalia in that case. As a result, the KSC rejected application of the identical offense doctrine in that case. But the implication was that if there had been evidence of use of paraphernalia, it would have constituted an identical offense situation. And we certainly had plenty of post-McAdam cases where we had plenty of evidence of use of paraphernalia (i.e. every manufacture case).

In 2007, we had a couple of unpublished cases where the COA, following Fanning, held that the record in a completed manufacture case established use of paraphernalia, remanding for a SL4 drug sentence. Some of those cases are final and some are not.

The Spangler decision is the first published case to order resentencing applying the identical offense doctrine. The state did not file a PR and the mandate issued today. Therefore, it is now good law, at least for right now.

There is a pending KSC case that may decide this issue one way or the other. I argued the case in October 2007 and I am currently waiting for a decision. I would guess we will get the decision pretty soon (maybe as early as next Friday). That case may confirm the Spangler rationale or it may reverse it or it may refine it. All we can do is wait to see. In any event, right now the law for manufacture cases is Spangler. If you have sentencing in a case of completed manufacture today, you can cite Spangler for the proposition that your client should receive a SL4 sentence.

Because of the unsettled state of the law, it is important to file a notice of appeal in any manufacture-related case sentenced using SL1. If McAdam taught me anything, it's that the only way to take advantage of the identical offense doctrine, it's by direct appeal.

In any case, this is good news for Ms. Spangler. She was originally given a 154-month sentence for two SL1 and two SL4 drug offenses. It looks to me like the worst case scenario for her now is about 32 months, which she has served.

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