Graham v. State

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NOT DESIGNATED FOR PUBLICATION

No. 113,458

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RONNY RAY GRAHAM,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION


Appeal from Sumner District Court; R. SCOTT MCQUINN, judge. Opinion filed May 20, 2016.
Affirmed.

Janine Cox, of Kansas Appellate Defender Office, for appellant.

Matthew B. Metcalf and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., PIERRON and SCHROEDER, JJ.

Per Curiam: Ronny Ray Graham appeals the district court's order denying his
K.S.A. 60-1507 motion after a full evidentiary hearing. Graham claims the district court
erred in determining that trial counsel was not ineffective for failing to argue the identical
offense doctrine at sentencing or on direct appeal.

We have been asked by the State to affirm the district court's denial of Graham's
60-1507 motion as the caselaw Graham relies on was not published until 2 years after he
was sentenced. Further the State requests us to affirm the district court's ruling because
Graham's motion was filed out of time. We agree with the second request and affirm the
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district court's denial of Graham's K.S.A. 60-1507 motion. Graham was advised of his
right to appeal his sentence and failed to timely do so. Therefore, Graham's K.S.A. 60-
1507 motion was filed out of time, over 3 years after his conviction and sentence were
finalized.

On June 22, 2010, the State filed a complaint against Graham alleging three
counts: Count 1, attempted manufacture of a controlled substance in violation of K.S.A.
2009 Supp. 21-36a03, a level 1 drug felony; Count 2, unlawful possession of certain drug
precursors in violation of K.S.A. 2009 Supp. 21-36a09(a), a level 2 drug felony; and
Count 3, unlawful possession of certain drug precursors in violation of K.S.A. 2009
Supp. 20-36a09, a level 2 drug felony. On July 1, 2010, the court appointed Kerwin L.
Spencer to represent Graham in the criminal proceedings. On July 29, 2010, Graham was
advised of his right to a preliminary hearing, elected to waive his right to said hearing,
and proceeded to arraignment. Pursuant to plea negotiations, Graham pled guilty to Count
2, unlawful possession of certain drug precursors, a level 2 drug felony, and the State
dismissed the remaining counts.

On August 24, 2010, the State filed a presentence investigation (PSI) report
indicating a criminal history score of A. On September 2, 2010, Spencer filed an
objection to the criminal history found in the PSI report. After further investigation and
discussion, Spencer and Graham agreed that the criminal history score of A was correct.
On September 23, 2010, the court sentenced Graham to 78 months in prison. Graham did
not appeal his sentence.

On July 18, 2013, Graham filed a motion to correct an illegal sentence. He argued
that under the identical offense doctrine, he should have been sentenced to a level 4 drug
felony rather than a level 2 drug felony. In his motion, Graham relied on the Kansas
Supreme Court's holding in State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012), which
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was published 2 years after he had been sentenced. On August 6, 2014, Graham withdrew
his motion to correct an illegal sentence.

On December 2, 2014, Graham filed a motion pursuant to K.S.A. 60-1507. He
raised a claim of ineffective assistance of counsel for Spencer's failure to raise the
identical offense doctrine at sentencing or on direct appeal. On December 30, 2014, the
district court held a full evidentiary hearing where Spencer and Graham testified.

Graham testified that on July 29, 2010, he entered into a plea agreement, waived
his right to a preliminary hearing, and entered a guilty plea to Count 2, unlawful
possession of certain drug precursors, a level 2 drug felony. Graham stated that pursuant
to the plea agreement Count 1, a level 1 drug felony, and Count 3, a level 2 drug felony,
were dropped. Graham further stated that from the time Spencer was appointed to
represent him, through to sentencing, Spencer never informed him of the identical offense
doctrine. Graham also testified that Spencer did not inform him of his right to appeal but
noted that Spencer may have told him that an appeal would be fruitless. However,
Graham did recall that the district court had advised him of his right to appeal.

The district court found that Graham had been advised of his right to appeal by the
court during sentencing, but Graham did not think there were grounds to appeal on. The
court also found that Spencer had not been ineffective and could not be faulted for
application of the identical offense doctrine in cases decided 2 years after Graham's
sentencing. The court then denied the K.S.A. 60-1507 motion. Graham timely appeals.

There is no basis to allow Graham to file an appeal out of time. “[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.” State v. Harp, 283 Kan. 740,
745, 156 P.3d 1268 (2007). A defendant has 1 year from when his or her conviction
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becomes final to file a motion under K.S.A. 60-1507(a). K.S.A. 60-1507(f)(1). The 1-
year limit for appealing may be extended by the district court to prevent a manifest
injustice. K.S.A. 60-1507(f)(2). Graham was advised of his right to file an appeal by the
court and failed to do so. As a result, this collateral attack on his sentence is improper.
The district court did not make a finding of manifest injustice, and neither party has
argued the issue in their briefs. Graham was sentenced on September 23, 2010, and did
not file his K.S.A. 60-1507 motion until December 2, 2014. As a result, Graham's motion
was untimely and cannot be heard.

Affirmed.