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State v. Harp

April 27, 2007; as amended May 29, 2007

STATE OF KANSAS, APPELLEE,
v.
GARY W. HARP, SR., APPELLANT.



Review of the judgment of the Court of Appeals in an unpublished opinion filed December 16, 2005. Appeal from Rice district court; BARRY A. BENNINGTON, judge. Judgment of the Court of Appeals is reversed. Judgment of the district court is affirmed.

SYLLABUS BY THE COURT

1. Generally, no appeal can be taken from a judgment of conviction upon a guilty or no contest plea, except that jurisdictional or other grounds going to the legality of the proceedings may be raised as provided by K.S.A. 60-1507. Following a plea, however, a defendant may challenge the sentence imposed under limited circumstances; specifically, he or she may challenge the sentence imposed if challenging the severity level of the crime upon which the sentence is based. Additionally, a defendant may argue the sentence qualifies as "illegal" as that term is used in K.S.A. 22-3504. Neither the district court nor an appellate court has jurisdiction over an untimely request to modify a sentence unless the sentence is illegal.

2. A sentence imposed for a crime which has identical or overlapping elements with a crime of a less severe penalty and, thus, is a sentence that violates this court's rulings on identical or overlapping offenses is not "illegal" as that term is used in K.S.A. 22-3504.

3. A K.S.A. 60-1507 motion is not typically an acceptable instrument for a non-constitutional claim of error that the defendant could have addressed on direct appeal.

4. A defendant who enters a plea and does not file a direct appeal cannot collaterally challenge the sentence imposed on the ground that the offense he or she pled guilty to and a second offense having a lesser penalty have identical elements.

5. Under the facts of this case, where the defendant was not advised of the right to appeal and did not have an understanding of the right, the defendant may file an appeal even though the time for a direct appeal has passed.

6. When a direct appeal is granted under an exception recognized in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), the appeal is subject to the law in effect at the time of its granting.

The opinion of the court was delivered by: Luckert, J.

Gary W. Harp, Sr., who seeks resentencing pursuant to State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), argues for reversal of the Court of Appeals' and district court's determinations that he is not entitled to relief pursuant to a motion to correct an illegal sentence and is not entitled to take an out-of-time appeal pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). We conclude that Harp is not entitled to relief pursuant to a motion to correct an illegal sentence but is entitled to file an appeal out of time.

Harp pled guilty to one count of manufacture of methamphetamine as a severity level 1 drug felony in January 2002. On April 17, 2002, Harp was sentenced to 96 months in prison. He did not file a direct appeal.

In October 2003, Harp filed a pro se K.S.A. 60-1507 motion in which he argued that he should have been convicted of a severity level 2 drug felony instead of a severity level 1 drug felony. This motion was later voluntarily dismissed.

Then, on April 1, 2004, Harp filed another pro se motion -- this time a motion to correct an illegal sentence. This motion was filed 3 months after the decision in McAdam. In McAdam, this court held that the offense of manufacturing methamphetamine under K.S.A. 65-4159(a), a severity level 1 drug felony, was identical to the offense of compounding methamphetamine under K.S.A. 65-4161(a), a severity level 3 drug felony. Accordingly, by application of the identical offense sentencing doctrine, the defendant could be sentenced only under the lesser penalty provision. This court vacated McAdam's sentence for violation of K.S.A. 65-4159(a) and remanded for resentencing him to a severity level 3 drug felony for a violation of K.S.A. 65-4161(a).

Harp seeks similar relief. In response to his motion, the State filed a "Motion to Dismiss Defendant's 60-1507 Motion," arguing that, because Harp's April 2004 motion was filed more than 10 days after the filing of the sentencing journal entry, it should be treated as a K.S.A. 60-1507 motion. The State basically argued that the district court was not obligated to hear a successive motion on the same matter and asked the court to dismiss for lack of jurisdiction.

The district court held a hearing at which Harp was represented by counsel. After listening to the parties' arguments, the court denied Harp's motion to correct an illegal sentence "on the basis that he received a beneficial plea agreement and failed to file a direct ...


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