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State v. Cooper

March 28, 2008

STATE OF KANSAS, APPELLEE,
v.
JEFFREY WAYNE COOPER, APPELLANT.



Review of the judgment of the Court of Appeals in an unpublished opinion filed November 9, 2006. Appeal from Clay district court; DAVID L. STUTZMAN, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

SYLLABUS BY THE COURT

1. The fundamental rule for statutory construction is that the intent of the legislature controls if it can be ascertained. When a statute is plain and unambiguous, we must give effect to the legislature's intent as expressed by the language in the statutory scheme rather than determine what the law should or should not be.

2. Offenses are identical when they have the same elements. In determining whether the elements are identical for sentencing purposes, an appellate court must consider the statutory elements in conjunction with the underlying facts.

3. Manufacturing methamphetamine under K.S.A. 65-4159(a) is not identical to using drug paraphernalia to manufacture methamphetamine under K.S.A. 65-4152(a)(3).

4. The constitution permits multiple punishments for the same conduct if the punishments are based on crimes containing different elements.

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

This case comes before the court on Jeffrey Wayne Cooper's petition for review. Cooper asks us to reverse the decision of the Court of Appeals, which affirmed his sentence for one count of manufacturing methamphetamine.

Cooper was charged with five felonies relating to manufacturing, possessing, and conspiring to manufacture and possess methamphetamine. Cooper pled guilty to one count of manufacturing methamphetamine, in exchange for the dismissal of the four remaining felony counts. In order to provide a factual basis for Cooper's plea, the State proffered evidence that law enforcement officers had discovered in Cooper's possession empty blister packs of ephedrine products, an empty coffee filter with methamphetamine residue, and a half-gallon container with approximately 3 inches of fluid that smelled strongly of starting fluid. Based on these proffered facts, the district court accepted Cooper's plea and convicted him of manufacturing methamphetamine.

Pursuant to State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), the district court sentenced Cooper as though he had been convicted of a severity level 3 drug felony, imposing a 22-month prison sentence. Cooper appealed his sentence to the Court of Appeals, arguing that he should have been sentenced for a level 4 drug felony. The Court of Appeals affirmed Cooper's sentence. State v. Cooper, No. 95,633, unpublished opinion filed November 9, 2006. We granted Cooper's petition for review. The record showed the State received timely notice of our granting a hearing on the matter. The State's untimely request to file its brief the day before oral argument was denied.

ANALYSIS

Cooper pled guilty to manufacturing methamphetamine in violation of K.S.A. 65-4159(a). Pursuant to K.S.A. 65-4159(b), the crime of manufacturing methamphetamine is a severity level 1 drug felony. The district court nevertheless sentenced Cooper for a severity level 3 drug felony based on State v. McAdam, 277 Kan. at 146. The McAdam court held that manufacturing methamphetamine in violation of K.S.A. 65-4159(a) was identical to compounding a stimulant in violation of K.S.A. 65-4161(a), a level 3 drug felony. Because the offenses were identical, McAdam could be sentenced only under the lesser penalty. 277 Kan. at 145-46.

Even though the district court sentenced him for a level 3 drug felony in accordance with McAdam, Cooper contends that the district court should have sentenced him for a level 4 drug felony. Cooper argues that manufacturing methamphetamine in violation of K.S.A. 65-4159(a), a level 1 drug felony, is identical to using drug paraphernalia to manufacture methamphetamine in violation of K.S.A. 65-4152(a)(3), a level 4 drug felony. Cooper argues that the elements are identical and the court was required to sentence him for the lesser penalty.

Cooper's argument requires us to interpret the relevant statutes. Interpretation of a statute is a question of law subject to unlimited review. State v. Fanning, 281 Kan. 1176, 1178, 135 P.3d 1067 (2006).

"The fundamental rule for statutory construction is that the intent of the legislature controls if it can be ascertained. When a statute is plain and unambiguous, we must give effect to the legislature's intent as expressed by the language in the statutory scheme rather ...


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