Plants require roots

 Caroline M. Zuschek won in State v. Holstead, No. 112,846 (Kan. App. April 8, 2016), reversing a Wyandotte County conviction for cultivation of marijuana. The COA had to decide whether marijuana clippings were "plants" as used in Kansas statute. The COA decided that "plants" require root formations:

And, even though Holsted had placed his clippings into a growing medium, that fact does not make his case unlike other cases. For example, in Edge, marijuana cuttings were found in a growing medium, saturated with a rooting hormone. Some of the cuttings had developed callus tissue, which is formed after a cutting is clipped from a mature plant and is the marker of the beginning of the development of a root. It is from this callus tissue that roots will come. But, the cuttings did not yet have any visible roots or root hairs. The court adopted the commonly accepted root test and held that those cuttings were not plants. .

The legislature set the minimum plant requirement at five. See K.S.A. 2015 Supp. 21-5701(c), K.S.A. 2015 Supp. 21-5705(c), (d)(7)(A). If defendants have only cultivated four plants, they can be punished for the possession of the plants under K.S.A. 2015 Supp. 21-5706, but they would not have a sufficiently large enough operation for a cultivation charge. The legislature emphasized the importance of properly counting the plants; the number of plants determines the severity of the crime. See K.S.A. 2015 Supp. 21-5705(d)(7).

By not defining the term "plants," it is presumed that the common, widely used definition was contemplated. There is a consensus among other courts that the common meaning of "plant" contemplates observable root formation. We share their view.

Here, the parties stipulated that Holsted's clippings had no root formation. Therefore, there was insufficient evidence that Holsted cultivated five marijuana plants in violation of K.S.A. 2012 Supp. 21-5705(c).

[Update: the state did not file a PR and the mandate issued on May 16, 2016]

Invited error doctrine does not apply to illegal sentence

Catherine A. Zigtema and Sarah Morrison Rapelye won in State v. Hankins, No. 109,123 (Kan. April 22, 2016), obtaining a new sentencing hearing in a Johnson County felony prosecution. On appeal, Mr. Hankins claimed that an Oklahoma deferred judgment should not be counted as a prior conviction. The COA had held that Mr. Hankins was precluded from making this argument under the invited error doctrine and also that he would lose on the merits. The KSC disagreed on both points.

On the procedural issue, the KSC applied recent precedent holding that "Kansas law is clear that a defendant can't agree to an illegal sentence." The KSC disagreed with the COA's distinction that the stipulation in this case was factual, which would be binding on the parties and court:

the stipulation of Hankins' attorney upon which the panel majority apparently relied was directed at a legal finding, not a factual one. After ascertaining that the parties had been provided an opportunity to look at the PSI, the district court recited the number of months' imprisonment within the presumptive gridbox for the base crime and the same information for the remaining nonbase crimes, before inquiring whether anyone disagreed with, or had anything to add to, the court's findings. The court did not ask if anyone disagreed with the existence of the convictions used to calculate the presumptive sentence; it asked if there was any disagreement with the computed presumptive sentence.

The computation of the presumptive term of imprisonment applicable to Hankins was a legal determination.

On the merits, the KSC distinguished the Oklahoma scheme from a deferred sentencing scheme:

The requirement for a judgment of guilt to trigger a "conviction" in Kansas is a critical point in our analysis because the Oklahoma deferred judgment statute specifically directs that an entry of judgment will not be entered for an offender who successfully completes a deferred judgment. The initial conditions are to be imposed "without entering a judgment of guilt." Then, upon successfully completing the deferred judgment, "the defendant shall be discharged without a court judgment of guilt." The State's argument that the journal entry in Hankins' case indicates that the district court adjudged Hankins guilty is simply unavailing. Such an action would have been statutorily prohibited, and we will not ascribe such unlawful conduct to the Oklahoma tribunal.

The KSC distinguished the instant case from precedents related to Missouri suspended sentencing scheme. The KSC held that the definition of "conviction" used in that case and noted that such reasoning actually supported a holding that the Oklahoma proceeding was not a judgment of guilt. So, as a result, the matter was remanded for a resentencing excluding the Oklahoma deferred judgment from criminal history.