State v. Loeffler

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NOT DESIGNATED FOR PUBLICATION

No. 117,782


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

THOMAS ALLEN LOEFFLER,
Appellant.


MEMORANDUM OPINION

Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed July 27, 2018.
Affirmed.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., MCANANY and BRUNS, JJ.

PER CURIAM: Thomas Loeffler pled no contest to two counts of distribution of
methamphetamine as defined by K.S.A. 2017 Supp. 21-5705(a)(1), but all of the charging
documents erroneously listed K.S.A. 2017 Supp. 21-5705(a)(4), a hallucinogenic drug, as
the authority for the charge. After Loeffler entered his plea, the trial court made a guilty
finding. Before sentencing, Loeffler filed an objection to the presentence investigation
(PSI) report because the Kansas Offender Registration Act does not impose a duty to
register as an offender for crimes charged under K.S.A. 2017 Supp. 21-5705(a)(4). He
argued that the State should be bound by the original charge listed in the complaint. The
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trial court ruled that it was a typographical error and allowed the State to amend its
complaint at sentencing. On appeal, Loeffler argues that the State breached the plea
agreement in violation of his due process rights. We disagree. Finding no merit in this
argument, we affirm.

Thomas Loeffler was originally charged with a total of 10 counts of various
charges for distribution of methamphetamine, no drug tax stamps, and possession with
intent to distribute methamphetamine. As part of a plea agreement, Loeffler pled no
contest to two counts of distribution of methamphetamine under K.S.A. 2017 Supp. 21-
5705(a)(4), a drug severity level 3 nonperson felony, and in exchange the State dropped
the remaining eight charges against him. The plea agreement stated that "The State of
Kansas agrees to file no additional charges arising out of the same transaction(s) or series
of transaction(s) upon acceptance of this agreement."

At the preliminary hearing, Loeffler stated that he discussed the plea with his
attorney and did not disagree with the charges against him. The trial court found Loeffler
guilty of the two counts of distribution of methamphetamine as charged in the plea
agreement. The trial court neglected to inform Loeffler of the duty to register as an
offender under the Kansas Offender Registration Act (KORA), but the PSI report listed it
as a requirement. Loeffler objected, both at sentencing and through a motion submitted
before sentencing, to the imposition of registering under this act because it only applied
to defendants charged under K.S.A. 2017 Supp. 21-5705(a)(1), not those charged under
K.S.A. 2017 Supp. 21-5705(a)(4).

At sentencing, the State realized that subsection K.S.A. 2017 Supp. 21-5705(a)(4)
was a typographical error and intended to charge him under K.S.A. 2017 Supp. 21-
5705(a)(1) because it pertained to methamphetamine. The State argued that the language
was quite clear that Loeffler was charged with distributing a stimulant: that stimulant
being methamphetamine. Loeffler argued that the State lacked jurisdiction to amend the
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complaint at this juncture and that the State should be bound by the complaint. The trial
court ruled that it was a typographical error and allowed the State to amend the complaint
through interlineation. The trial court then asked Loeffler's counsel if she would like a
continuance before proceeding to sentencing due to Loeffler's unawareness of the
registration duty. Loeffler's counsel responded that she had "already spoken with Mr.
Loeffler about this particular issue in multiple stages" and that he was aware that this
might potentially be an outcome. Loeffler made no further objections and the court
moved on to sentencing him. The trial court told Loeffler at sentencing of his duty to
register as an offender.

Did Loeffler Properly Preserve the Issues for Appeal?

Loeffler claims that the trial court violated his due process rights. Generally,
appellate courts do not consider constitutional issues raised for the first time on appeal
unless it meets one of the following exceptions:

"(1) The newly asserted claim involves only a question of law arising on proved or
admitted facts and is determinative of the case; (2) consideration of the claim is necessary
to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the
district court is right for the wrong reason." State v. Dukes, 290 Kan. 485, 488, 231 P.3d
558 (2010).

But "an exception must be invoked by the party asserting the claim for the first
time on appeal." State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). When
briefing an issue, Kansas Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 35) states:

"Each issue must begin with citation to the appropriate standard of appellate review and a
pinpoint reference to the location in the record on appeal where the issue was raised and
ruled on. If the issue was not raised below, there must be an explanation why the issue is
properly before the court."

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Our Kansas Supreme Court has warned that future litigants need to comply with
Rule 6.02(a)(5) "or risk a ruling that an issue improperly briefed will be deemed waived
or abandoned." State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014).

The State contends that Loeffler did not properly preserve the amended complaint
and breach of plea agreement issues for appeal because he did not raise these issues in the
trial court. The State does not believe that any of the exceptions to the preservation rule
are applicable here. But Loeffler clearly objected to the State's lack of jurisdiction to
amend the complaint, both at sentencing and through a motion submitted to the court
before the hearing. Thus, this issue was properly preserved for appeal.

With respect to the issue that the State breached the plea agreement, Loeffler
contends that this issue is implicitly before this court because he argued at the trial court
level that the State should be bound by the unamended complaint. Loeffler also argues
that absent proper objection, this issue is properly before this court because it is a pure
question of law based on admitted facts and it is necessary to prevent denying his
fundamental due process rights.

While Loeffler did not specifically object on the grounds that the State breached a
plea agreement, he did object to the State amending the complaint in any way. He argued
that the State should be bound by the complaint. This issue is one that involves only a
pure question of law and Loeffler's fundamental right to due process. Because Loeffler
invoked those exceptions in his brief, he complied with Rule 6.02(a)(5) and properly
preserved both issues for appeal.

Did the Trial Court Err in Allowing the State to Amend the Complaint at Sentencing?

Whether there has been an error in the charging documents receives a de novo
standard of review. State v. Dunn, 304 Kan. 773, 819, 375 P.3d 332 (2016). "The sources
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of law governing the three types of charging document challenges we have addressed are
the Kansas Constitution, statutory definitions of Kansas crimes, and federal and state
constitutional provisions. We apply a de novo standard to both constitutional and
statutory interpretation." 304 Kan. at 819.

Loeffler contends that the State lacked the authority to amend the complaint after
the trial court found him guilty because it violated his due process rights. Loeffler argues
that the State's amended complaint breached the plea agreement because the State agreed
to not file any additional charges, but by changing the statute, it imposed a new duty to
register as an offender. Loeffler asks this court to vacate the sentence and remand for a
new sentencing hearing in compliance with the original plea agreement.

Conversely, the State argues that it had jurisdiction to amend the complaint
because it was only a typographical error and no substance was changed. The State
argues Loeffler knew he was charged with distribution of a stimulant, to wit:
methamphetamine, as listed in K.S.A. 2017 Supp. 65-4107(d)(3), because the complaint
and information documents clearly laid out the elements and severity level of this crime.
The State also argues that Loeffler had notice of the charges because he discussed them
with his attorney at "multiple stages" of the proceedings. The State further contends it did
not breach the plea agreement because there were no discussions or agreements that
Loeffler would not have to register as an offender.

Loeffler believes that the distribution of controlled substances statutory scheme is
confusing because different drugs can be mixed together to create analogs of the original
drugs. Because the felony severity level is determined by quantity rather than drug type,
Loeffler contends that a person convicted of distribution of a hallucinogenic drug could
be punished the same as if he was distributing a stimulant, so long as there was any
quantity of methamphetamine mixed in it. Loeffler argues in his brief that because the
crime's description stated in the complaint was "distribution of methamphetamine," it is
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not clear whether the distribution charge was a pure methamphetamine under K.S.A.
2017 Supp. 21-5705(a)(1), a stimulant amphetamine under K.S.A. 2017 Supp. 21-
5705(a)(3), or one of the many hallucinogenic amphetamines under K.S.A. 2017 Supp.
21-5705(a)(4). Thus, Loeffler suggests that K.S.A. 2017 Supp. 21-5705(a)(4), which
covers the hallucinogenic substances, could also include methamphetamine, meaning the
complaint cited an appropriate statute for the charges.

Nevertheless, Loeffler is incorrect that the statute listed in the complaint is an
appropriate charge. K.S.A. 2017 Supp. 21-5705(a)(1) states that it is unlawful to
distribute any opiate, opium, or narcotic drug, or stimulant drug listed under sections
(d)(1), (d)(3), or (f)(1) of K.S.A. 65-4107. Methamphetamine is a stimulant listed under
subsection (d)(3). In contrast, K.S.A. 2017 Supp. 21-5705(a)(4) lists hallucinogenic drugs
which can be found under "(d) of K.S.A. 65-4105, subsection (g) of K.S.A. 65-4107 or
subsection (g) of K.S.A. 65-4109." Methamphetamine is not listed under any of the
hallucinogenic subsections, it is only listed as a stimulant. Therefore, a person cannot be
charged with distribution of methamphetamine under K.S.A. 2017 Supp. 21-5705(a)(4)
as Loeffler suggests. Further, Loeffler does not contend, nor is there anything in the
record to suggest, that the drugs at issue here were anything other than
methamphetamine. Thus, the State is correct that Loeffler could not actually be charged
under K.S.A. 2017 Supp. 21-5705(a)(4) given this set of facts.

The issue then is whether the trial court had the ability to amend the complaint to
reflect the correct charge after the trial court made a guilty finding. Loeffler argues that
the controlling statute is K.S.A. 22-3201(e), which states that the court may permit the
complaint to be amended any time before verdict or finding if no additional or different
crime is charged and if the defendant's substantial rights are not prejudiced. Loeffler
contends that the State's amendment came too late because it was done at sentencing,
rather than before the trial court made the guilty finding during the preliminary hearing as
required by statute.
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Nevertheless, K.S.A. 2017 Supp. 22-3504(2) provides that clerical mistakes in
judgments, orders, or other parts of the record and errors in the record that have arisen
from oversight or omission can be corrected at any time and after notice as the court
orders. "Clerical mistakes include, 'typographical errors, incorrect statute numbers, failure
to include the statute number, failure to state additional true matter, formal or clerical
errors and entries concerning matters of procedure' and are correctable by nunc pro tunc
orders." State v. Bailey, 306 Kan. 393, 398, 394 P.3d 831 (2017).

This statute "only applies if a sentence is illegal, and the question of whether
a sentence is illegal is a question of law over which this court has unlimited review."
State v. Davis, 283 Kan. 767, 768-69, 156 P.3d 665 (2007). K.S.A. 2017 Supp. 22-
3504(3) defines an illegal sentence as "a sentence . . . [i]mposed by a court without
jurisdiction; that does not conform to the applicable statutory provision, either in
character or punishment; or that is ambiguous with respect to the time and manner in
which it is to be served at the time it is pronounced." Loeffler contends that the sentence
of registering as an offender under KORA for the next 15 years does not conform to the
statutory provision of K.S.A. 2017 Supp. 21-5705(a)(4) which he was charged with
before the amendment. Therefore, this case involves an illegal sentence issue and K.S.A.
2017 Supp. 22-3504(2) governs. A reviewing court has the jurisdiction to correct an
illegal sentence at any time. State v. Perez, 267 Kan. 543, 549, 987 P.2d 1055 (1999).

This case is similar to State v. Gaines, No. 89,897, 2004 WL 421974, at *1 (Kan.
App. 2004) (unpublished opinion), where the defendant argued at sentencing that the
complaint was fatally defective because, in listing the wrong statute, it did not provide the
essential elements of the actual crime he committed. The complaint erroneously charged
Gaines with aggravated escape from custody under K.S.A. 75-5205, but the complaint
should have cited the correct statute of K.S.A. 75-5202. The trial court allowed the State
to amend the complaint by interlineation because it was only a typographical error which
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did not prejudice Gaines. The appellate court upheld the amendment finding that Gaines'
complaint was sufficient because it contained the essential elements of the crime, but
simply cited the wrong statute to define the type of correctional facility from which he
escaped. 2004 WL 421974, at *3. The appellate court noted that the inclusion of K.S.A.
75-5205, the incorrect statute, which was being used to describe the type of correctional
facility, was surplusage. 2004 WL 421974, at *3.

Similarly, here the trial court has jurisdiction to correct an illegal sentence by
virtue of statute which specifically allows the trial court to correct a clerical error at any
time. The State made an unintentional typographical error when it cited subsection
K.S.A. 2017 Supp. 21-5705(a)(4) instead of subsection K.S.A. 2017 Supp. 21-5705(a)(1).
The record shows that the State always intended to charge Loeffler with distribution of a
stimulant, with that stimulant being methamphetamine, which is a registerable offense.
The State charged him with the essential facts and elements of distribution of
methamphetamine based on the evidence provided at the preliminary hearing. The State
clarified that subsection K.S.A. 2017 Supp. 21-5705(a)(4) refers to marijuana and the
facts of this case did not involve marijuana in any way. The State immediately fixed the
error once it was brought to the court's attention. Thus, under K.S.A. 2017 Supp. 22-
3504(2), the State was allowed to correct the clerical error at any time, even after the trial
court made a guilty finding.

Nevertheless, Loeffler further contends the State violated his due process rights
because the State breached its plea agreement when it amended the complaint to reflect a
different charge not agreed to under the plea agreement. Loeffler argues that the breach
was not harmless because the imposition of registering as an offender was an important
factor that would have affected his decision to enter a no contest plea.

"A plea agreement is a contract between the State and the accused, and the
exchanged promises must be fulfilled by both parties." State v. Peterson, 296 Kan. 563,
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567, 293 P.3d 730 (2013). The State's failure to fulfill a promise made in the plea
agreement will deny a defendant his due process rights. State v. Urista, 296 Kan. 576,
583, 293 P.3d 738 (2013). Courts generally apply fundamental contract principles when
deciding whether the enforcement of a plea agreement is fair. Peterson, 296 Kan. at 567.

The State did not breach the plea agreement by amending the statute citation. In
the plea agreement, the State agreed that it would not file any additional charges arising
out of the same transaction. The State's amendment did not charge Loeffler with an
additional or different offense as Loeffler suggests, it merely swapped out the statute's
citation for the correct one as permitted under K.S.A. 2017 Supp. 22-3504(2). Loeffler
was charged with two counts of distribution of methamphetamine from the moment the
State offered the plea deal. It has been decided that "a charging document's sufficiency is
now tested by comparing the facts it alleges against the statutory definition of the charged
crime." State v. Rodriguez, 305 Kan. 1139, 1145, 390 P.3d 903 (2017). If one were to
look at the facts of this case and compare it with the statutory definition of distribution of
methamphetamine, it would reveal that the correct sentence under this complaint is for an
offender to register under KORA. Avoiding the offender registry was not part of the plea
agreement, nor was it ever discussed. Thus, the State did not breach the plea agreement
by imposing the correct sentence for the actual crime committed.

Moreover, even if we were to determine that the State breached the plea agreement
by charging a different crime, the statute citation error resulting in a different sentence
was harmless. When the State breaches a plea agreement and the defendant makes a
timely objection, "such a breach will constitute harmless error only if a court can say
beyond a reasonable doubt that the State's promise had little, if any, influence on the
defendant's decision to enter into the plea agreement." Urista, 296 Kan. at 594-95.

Loeffler claims that notice of registering as an offender would have influenced his
plea decision; however, the record proves otherwise. Right after Loeffler brought the
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error to the trial court's attention, the court asked if Loeffler wanted a continuance or if he
wanted to take action under the plea agreement given that he was unaware of the duty to
register as an offender. Loeffler's counsel made it clear that there was no need for a
continuance because she had discussed this particular issue with Loeffler at multiple
stages and he was aware that this would potentially be an outcome. Loeffler did not
object and his counsel told the court that he was ready to proceed with sentencing. Thus,
we cannot hold that he did not know of the charges against him or that he did not have
the opportunity to respond to the charges and corresponding sentences. As a result, we
conclude that there was no due process violation.

Affirmed.