Review of the judgment of the Court of Appeals in an unpublished order filed June 24, 2005. Appeal from McPherson district court; CARL B. ANDERSON, JR., judge. Judgment of the Court of Appeals remanding for resentencing is affirmed.
1. Under the facts of this case, the Court of Appeals erred in granting appellant's motion for summary disposition.
2. When a late appeal is granted by the district court under 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: Nuss, J.
The State appeals the Court of Appeals' order granting Thomas' motion for summary disposition and remanding for resentencing pursuant to State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). The State argues that a late appeal granted by the district court in 2005 must be subject to the law in effect at the time Thomas should have filed it, September 2001, and in effect during the course of that 2001 appeal. It reasons that because McAdam is a 2004 decision, Thomas' appeal could not have been pending at that late date and a sentence reduction that McAdam would otherwise authorize is not available to him. Our jurisdiction is pursuant to K.S.A. 20-3018(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the Court of Appeals err in granting Thomas' motion for summary disposition?
2. Is remanding for resentencing under McAdam correct?
3. Does K.S.A. 21-4721(c) bar Thomas' appeal?
Accordingly, we affirm the Court of Appeals' order remanding the case to the district court for resentencing.
In January 2001, John Aaron Thomas was charged in the McPherson County District Court with manufacturing methamphetamine, possessing methamphetamine, felony possession of drug paraphernalia, and criminal possession of a firearm.
On April 17, 2001, Thomas entered a plea agreement with the State. He agreed to plead either guilty or nolo contendere to the manufacturing methamphetamine charge; in exchange, the State agreed to dismiss the remaining counts.
On September 11, 2001, Thomas was sentenced to 162 months' imprisonment based upon the drug severity level 1 felony of manufacturing methamphetamine and a criminal history classification of "E." The district court judge failed to inform Thomas of his appellate rights, e.g., the right to appeal his sentence as permitted by Kansas law. See State v. Harrold, 239 Kan. 645, 649, 722 P.2d 563 (1986) (following a guilty or nolo contendere plea, a defendant may challenge the sentence imposed). Thomas did not file a direct appeal. See K.S.A. 22-3608(a) (appeal must be filed within 10 days of sentencing).
On January 30, 2004, the Kansas Supreme Court filed State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). The court held that the offense of manufacturing the controlled substance methamphetamine under K.S.A. 65-4519(a), a drug severity level 1 felony, was identical to the offense of compounding the stimulant methamphetamine under K.S.A. 65-4161(a), a drug severity level 3 felony. Accordingly, 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 with instructions to resentence him for a drug severity level 3 felony, as provided for a violation of K.S.A. 65-4161(a).
On February 25, 2004, Thomas filed a motion to correct an illegal sentence under K.S.A. 22-3504, i.e., to reduce his drug severity level 1 sentence to a drug severity level 3 sentence per McAdam. The district court denied the motion.
On June 25, 2004, the Kansas Supreme Court filed State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004). Barnes pled guilty to aiding and abetting the manufacture of methamphetamine and was sentenced under K.S.A. 65-4159(a) to a controlling term of 146 months' imprisonment. Prior to this court's decision in McAdam, the Court of Appeals had rejected Barnes' argument that the offense of manufacturing methamphetamine under K.S.A. 65-4159(a), a drug severity level 1 felony, was identical to the offense of compounding a stimulant under K.S.A. 65-4161(a), a drug severity level 3 felony, and that she could only be sentenced under the lesser penalty provision. In Barnes, we held that the McAdam rule applied to a case which had a direct appeal pending as of the date of the McAdam decision. We also held that Barnes' plea agreement, which included a guilty plea in exchange for the dismissal of several charges, did not bar her relief under McAdam. We remanded for resentencing. 278 Kan. at 127-28.
On June 24, 2005, the Court of Appeals affirmed the district court's denial of Thomas' motion to correct his illegal sentence under K.S.A. 22-3504 and its alternative characterization as a motion under K.S.A. 60-1507. It held that McAdam did not apply retroactively, i.e., to those cases which were no longer direct appeals pending as of the date of the McAdam decision.
On August 25, 2005, Thomas filed a motion to docket his direct appeal out of time. Based upon State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), he argued that the district court erred in failing to advise him of his right to appeal his sentence at the September 2001 sentencing and that fundamental fairness required that his late appeal be allowed to proceed.
On September 2, 2005, the Kansas Supreme Court filed Bryant v. State, 280 Kan. 2, 118 P.3d 685 (2005). As characterized 2 months later in State v. Phinney, 280 Kan. 394, 400-01, 122 P.3d 356 (2005), Bryant essentially held that McAdam did not apply retroactively, i.e., to those cases which ...