Opinion
No. 110,540.
2015-01-2
STATE of Kansas, Appellee, v. Efrain MORONES, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, judge.Charles A. O'Hara, of O'Hara & O'Hara, LLC, of Wichita, for appellant.Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, judge.
Charles A. O'Hara, of O'Hara & O'Hara, LLC, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Efrain Morones appeals his convictions for possession of methamphetamine with intent to sell and possession of cocaine with intent to sell, both in violation of K.S.A.2007 Supp. 65–4161(a) (possession with intent to sell counts). Morones contends he was subjected to double jeopardy on the possession with intent to sell counts because he was also convicted on two related counts of possession of a controlled substance with no tax stamp, both in violation of K.S.A. 79–5208 (no tax stamp counts). We affirm the convictions.
Factual and Procedural Background
Morones committed the crimes on July 24, 2007. The parties do not dispute that the possession with intent to sell counts and the no tax stamp counts arose out of the same conduct. The possession with intent to sell counts were drug severity level 3 felonies, while the no tax stamp counts were severity level 10 felonies. With an I criminal history, Morones' sentencing range for the possession with intent to sell counts was 14 to 16 months' imprisonment and for the no tax stamp counts the range was 5 to 7 months. The district court imposed the mid-point sentence for each conviction and ran the sentences concurrently.
Analysis
On appeal, Morones contends he was subjected to double jeopardy under the Fifth and Fourteenth Amendments to the United States Constitution. Morones relies on State v. Hensley, 298 Kan. 422, 436, 313 P.3d 814 (2013), which considered double jeopardy in the context of Kansas' lesser included crime law. Assuming the possession with intent to sell counts were lesser included crimes of the no tax stamp counts, Morones argues “all of the elements of [the possession with intent to sell counts] are found in the [no tax stamp counts].”
Preliminarily, Morones did not raise his double jeopardy argument below, and the district court had no opportunity to consider it. However, the State does not object to our consideration of this issue for the first time on appeal. In order to serve the ends of justice or to prevent a denial of fundamental rights and because the issue is purely one of law on uncontroverted facts, we will consider it. See State v. Phillips, 299 Kan. 479, 493–94, 325 P.3d 1095 (2014). Our review is unlimited. See Hensley, 298 Kan. at 435.
“Both the United States and Kansas Constitutions prohibit a criminal defendant from being ‘twice put in jeopardy,’ and although the language of the two provisions is not identical, we have interpreted the Kansas and federal provisions as providing the same protection.” Hensley, 298 Kan. at 435. “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).
“Where ... a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct ..., a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” 459 U.S. at 368–69.
See State v. Schoonover, 281 Kan. 453, 468, 133 P.3d 48 (2006) (same).
In Hensley, our Supreme Court considered the lesser included crime provision found at K.S.A. 21–3107(2)(b). 298 Kan. at 436. K.S.A. 21–3107(2) states that “[u]pon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both.” K.S.A. 21–3107(2)(b) goes on to define a lesser included crime as “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” Our Supreme Court concluded the provision “clearly expressed an intent” not to allow cumulative punishment on convictions for both a crime and its lesser included crime. 298 Kan. at 438.
Our Supreme Court in Hensley implicitly found that simple possession of marijuana in violation of K.S.A. 65–4162, a class A misdemeanor, is a lesser crime than possession of marijuana with no tax stamp in violation of K.S.A. 79–5208, a severity 10 felony. Because the Supreme Court found that all of the elements of possession of marijuana were identical to some of the elements of possession of marijuana with no tax stamp, our Supreme Court held the conviction for possession of marijuana violated the Double Jeopardy Clause. 298 Kan. at 437–38.
In the present case, the State distinguishes Hensley as follows: “Here, unlike in Hensley, a finding that [the possession with intent to sell counts are] a lesser included offense of [the no tax stamp counts] would lead to an absurd result, as the ‘lesser’ offense would carry the higher severity level (and more severe punishment) than the greater offense.”
To evaluate this argument in keeping with Hensley, we must first decide whether the possession with intent to sell counts or the no tax stamp counts were the “lesser crime[s]” under K.S.A. 21–3107(2)(b). The statute defines “lesser crime” in K.S.A. 21–3107(2)(a)–(b), and this court has also relied on a crime's severity level when making the determination. See State v. Montgomery, 26 Kan.App.2d 346, 349, 988 P.2d 258 (1999), disapproved on other grounds by State v. Edwards, 299 Kan. 1008, Syl. ¶ 2, 327 P.3d 469(2014).
The possession with intent to sell counts were assigned as severity level 3 felonies on the drug offense grid, while the no tax stamp counts were assigned as severity level 10 felonies on the nondrug grid. The range of severity levels on these grids are distinct, with severity levels 1 through 4 for the drug grid and 1 through 10 for the nondrug grid. See K.S.A. 21–4704; K.S.A. 21–4705. Nevertheless, we may conclude that because the severity level for the no tax stamp counts were the lowest severity level on that grid, unlike the severity level for the possession with intent to sell counts, and since the sentences for the no tax stamp counts were lesser sentences, the no tax stamp counts were the “lesser crime[s]” under K.S.A. 21–3107(2)(b).
As a result, we disagree with Morones' assumption that the possession with intent to sell counts were the lesser crimes here. We will, nevertheless, decide whether the actual lesser crimes, the no tax stamp counts, were “lesser included crimes” of the possession with intent to sell counts under K.S.A. 21–3107(2)(b). Following Hensley, we do so under K.S.A. 21–3107(2)(b), asking whether all of the elements of the no tax stamp counts were identical to some of the elements of the possession with intent to sell counts.
The elements of the no tax stamp counts included: “[A] dealer distributing or possessing marijuana or controlled substances without affixing the appropriate stamps, labels or other indicia.” K.S.A. 79–5208. A “dealer” means:
“[A]ny person who, in violation of Kansas law, manufactures, produces, ships, transports or imports into Kansas or in any manner acquires or possesses more than 28 grams of marijuana, or more than one gram of any controlled substance, or 10 or more dosage units of any controlled substance which is not sold by weight.” K.S.A. 79–5201(c).
The elements of the possession with intent to sell counts included:
“[I]t shall be unlawful for any person to sell, offer for sale or have in such person's possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; or dispense any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65–4107 and amendments thereto.” K.S.A.2007 Supp. 65–4161(a).
It is readily apparent the no tax stamp counts contained elements not found in the possession with intent to sell counts. The no tax stamp counts required a “dealer,” which was more restrictive than the “person” required for the possession with intent to sell counts. The no tax stamp counts also required a failure to affix tax stamps or such, which was not an element for the possession with intent to sell counts. So, while the no tax stamp counts were lesser crimes than the possession with intent to sell counts, they were not lesser included crimes.
Morones identifies no other basis for his double jeopardy argument than Hensley and K.S.A. 21–3107(2)(b). On this record and given Morones' argument on appeal, we conclude that Morones has not shown he was subjected to double jeopardy.
Affirmed.
* * *
ATCHESON, J., concurring.
I concur in the result and agree that the convictions of Defendant Efrain Morones should be affirmed. Morones' double jeopardy challenge presents a multiplicity issue. Here, Morones was convicted of four offenses: possession with intent to distribute cocaine; possession with intent to distribute methamphetamine; no drug tax stamps for the cocaine; and no drug tax stamps for the methamphetamine. He contends each possession-with-intent charge is legally duplicitive of the corresponding drug tax charge, so punishing him for both amounts to double jeopardy.
Criminal offenses are not multiplicitous if one crime requires proof of an element different from those required for the other. State v. Schoonover, 281 Kan. 453, 498, 133 P.3d 48 (2006). In applying the Schoonover test, the court simply looks at the statutory elements of the offenses without regard to the facts of the particular case. See State v. Patten, 280 Kan. 385, 393, 122 P.3d 350 (2005). Here, each possession-with-intent offense contains at least one element not shared with the companion drug tax offense.
The possession charges require that Morones have the intent to distribute the drugs, but they do not require possession of any minimum quantity of drugs for conviction. A large quantity could be indicative of the intent to sell or otherwise distribute. Quantity, however, is not an element.
Conviction for no drug tax stamps requires that the person be a “drug dealer” as defined in K.S.A. 79–5201(c). The statutory definition, in turn, requires the person possess at least 1 gram of a controlled substance, such as cocaine or methamphetamine. That element is not required to convict for possession with intent to distribute, so it is not a common or shared element. And, under the definition in K.S.A. 79–5201(c), a drug dealer need only “acquire or possess” the controlled substance. He or she need not have any intent to distribute the drugs, so that is not a common or shared element.[*]
[*]The Kansas Legislature has chosen to define “drug dealer” in a peculiar way. The word “deal” commonly denotes sale or distribution. See Merriam Webster's Collegiate Dictionary 295 (10th ed.2001) (defining “deal” as including to “sell,” as in, to deal marijuana, or to “sell or distribute” a commodity as a business). But a legislature may within limits define terms as it pleases. See State v. Pelzer, 230 Kan. 780, 781, 640 P.2d 1261 (1982) (In the absence of a statutory definition of a term, the court should interpret the language in light of the nature and purpose of the enactment.); Mayor of Cadillac v. Blackburn, ––– Mich.App. ––––, ––– N.W.2d ––––, 2014 WL 4209568, at *—(No. 312803, filed August 26, 2014) (words of statute to be given their common meaning unless legislature provides specific definition); Scalia & Garner, Reading Law: The Interpretation of Legal Texts, p. 225 (2012) ( “Individual statutes often contain definition sections giving ordinary words a limited or artificial meaning.”). Nothing about the definition of “drug dealer” in K.S.A. 79–5201(c) impinges on Morones' double jeopardy rights.
Accordingly, the possession-with-intent crimes at issue here are not multiplicitous of the drug tax crimes, and there is no double jeopardy bar to punishing Morones for both. This case requires we say no more, and that is all I say. SCHROEDER, J., concurring.
I concur in the result affirming the convictions of Efrain Morones. I join in the concurrence by Judge Atcheson.