State v. Linden

1

NOT DESIGNATED FOR PUBLICATION

No. 118,252

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant/Cross-appellee,

v.

DELORAH L. LINDEN,
Appellee/Cross-appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed March 1, 2019. Affirmed in
part, sentence vacated, and case remanded with directions.

Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellant/cross-appellee.

Shannon S. Crane, of Hutchinson, for appellee/cross-appellant.

Before GREEN, P.J., PIERRON and BUSER, JJ.

BUSER, J.: This is a sentencing appeal by the State and a cross-appeal by Delorah
L. Linden.

Linden cross-appeals the district court's ruling denying her motion to suppress
evidence based on an allegedly illegal inventory search of her vehicle that resulted in the
seizure of marijuana and drug paraphernalia. Upon our review of Linden's cross-appeal,
we find no error in the district court's search and seizure ruling. Accordingly, we affirm
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Linden's conviction for the offense of possession of marijuana after a prior conviction
(second time marijuana possession).

The State appeals, claiming the district court erred by imposing an illegal sentence
when it classified Linden's conviction for second time marijuana possession as a class A
nonperson misdemeanor rather than a severity level 5 drug felony. Upon our
consideration of the State's appeal, we vacate the sentence and remand with directions to
the district court to resentence Linden for second time marijuana possession based on a
severity level 5 drug felony classification.

FACTUAL AND PROCEDURAL BACKGROUND

On March 2, 2015, Kansas Highway Patrol Trooper Matthew Peil noticed a driver
wearing a jacket with the hood up traveling on Kansas highway K-14. Trooper Peil
considered that unusual so he followed the vehicle and determined that its license plate
expired in July 2014, but the plate displayed a current 2015 registration sticker. The
trooper conducted a traffic stop and identified the driver as Linden.

During the traffic stop, Linden told Trooper Peil that she had removed the license
plate from another vehicle she owned and attached it to this vehicle about six to eight
months ago. The dispatcher, however, advised that the registration decal was stolen.
Trooper Peil also established that Linden was driving on a suspended license, had no
proof of insurance, and was driving without wearing a seatbelt. Trooper Peil placed
Linden under arrest.

Trooper Peil impounded the vehicle. Prior to the arrival of the tow truck, he
conducted an inventory search of the vehicle. According to the trooper, he conducted the
inventory search of the vehicle's contents in accordance with the Kansas Highway Patrol
Vehicle Tow/Inventory policy. The policy allowed the trooper to look for items of value
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in any unlocked containers. During the search, Trooper Peil found marijuana and a so-
called "hitter pipe" that contained burnt residue hidden inside a fake ibuprofen bottle. In a
lunchbox in the backseat, Peil also found a small Tupperware container with marijuana,
another hitter pipe, and a silver grinder.

Linden was charged with second time marijuana possession, possession of stolen
property, no proof of liability insurance, possession of drug paraphernalia, driving with a
suspended license, illegal display of a license plate, and failure to wear a seatbelt.

Linden filed a pretrial motion to suppress the incriminating evidence obtained
from the inventory search. Relevant to this appeal, Linden claimed that Trooper Peil did
not have reasonable suspicion to conduct the traffic stop and the inventory search was a
ruse to discover incriminating evidence. The district court disagreed and denied the
motion to suppress.

On June 28, 2017—more than two years after the vehicle stop which gave rise to
the charges—a bench trial was held on stipulated facts, and the district court found
Linden guilty of second time marijuana possession and possession of drug paraphernalia.
The presentence investigation report indicated that Linden had a prior conviction for
possession of marijuana, which increased her current conviction to a severity level 5 drug
felony. See K.S.A. 2015 Supp. 21-5706(c)(2)(B). Prior to sentencing, Linden objected to
the felony classification and asserted the offense should be classified as a class A
nonperson misdemeanor under the amended statute. See K.S.A. 2016 Supp. 21-
5706(c)(3)(B).

The district court agreed with Linden's legal contention and, as a result, sentenced
her in accordance with a class A nonperson misdemeanor. On September 8, 2017, Linden
was sentenced to 12 months in jail but granted a 12-month probation on the second time
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marijuana possession conviction. Linden was sentenced to the identical sentence for
possession of drug paraphernalia. Both sentences were ordered to run concurrent.

The State filed a timely notice of appeal claiming the district court had imposed an
illegal sentence for second time marijuana possession. Linden filed a cross-appeal
seeking reversal of the district court's denial of the motion to suppress evidence. We will
first address the cross-appeal.

LINDEN'S CROSS-APPEAL OF DISTRICT COURT'S
DENIAL OF MOTION TO SUPPRESS

In her cross-appeal, Linden contends the district court erred in denying her motion
to suppress evidence obtained from the inventory search. Linden argues that Trooper Peil
did not have reasonable suspicion to follow her vehicle, stop it, impound it, and conduct
an inventory search of its interior. The State responds by asserting that Linden's expired
license plate gave Trooper Peil reasonable suspicion to stop her vehicle. Moreover, the
State argues that the inventory search conducted by Trooper Peil after the vehicle was
impounded was lawful because the vehicle could not be legally operated on the roadway
because of the expired license plate, the stolen registration sticker, and no insurance
coverage.

We begin with a brief summary of our standards of review. Courts review a
motion to suppress evidence under a bifurcated standard. State v. Karson, 297 Kan. 634,
639, 304 P.3d 317 (2013). The appellate court examines the district court's findings to
determine whether they are supported by substantial competent evidence and reviews the
district court's legal conclusions de novo. 297 Kan. at 639.

In the context of the Fourth Amendment to the United States Constitution and
Kansas statutory law, it is well established that a law enforcement officer may conduct a
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lawful traffic stop provided the officer has "'a reasonable and articulable suspicion, based
on fact, that the person stopped has committed, is committing, or is about to commit a
crime.' [Citations omitted.]" State v. Thompson, 284 Kan. 763, 773, 166 P.3d 1015
(2007); K.S.A. 22-2402(1). In this regard, an officer must be able to articulate more than
a mere hunch of criminal activity. State v. Martinez, 296 Kan. 482, Syl. ¶ 4, 293 P.3d 718
(2013).

Linden asserts that Trooper Peil did not have reasonable and articulable suspicion
to follow her vehicle solely because she was wearing a jacket with the hood up. But, an
officer does not need reasonable suspicion to simply follow and observe a vehicle.
Reasonable suspicion is necessary to stop or seize a vehicle. Moreover, "[a] traffic
violation provides an objectively valid reason to effectuate a traffic stop, even if the stop
is pretextual." State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).

In ruling on Linden's motion to suppress, the district court found that "[t]he illegal
tag gave Trooper Peil reasonable suspicion to stop defendant. The stop was not initiated
until Trooper Peil ran the tag." There was substantial competent evidence to support this
factual finding and legal conclusion. It was only after Trooper Peil conducted a check on
the vehicle's license plate and determined that the registration was expired did he stop
Linden's vehicle. Because an expired license plate is a traffic violation, Trooper Peil had
an objectively valid reason to make the traffic stop. See K.S.A. 2018 Supp. 8-142 First.

Next, Linden acknowledges that her arrest for driving while suspended was
lawful. She asserts, however, that the "arrest does not give the highway patrol the ability
to impound the car and do an inventory search. Neither does the failure to find liability
insurance, without further inquiry, allow for said impoundment and search." Linden also
claims—without citation to evidence in the record—that Trooper Peil used the inventory
search as a ruse to search the vehicle without a warrant.

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At the conclusion of the evidentiary hearing on Linden's motion, the district court
found:

"Trooper Peil was justified in conducting an inventory search and the search was
conducted according to applicable [Kansas Highway Patrol] policy. . . . Trooper Peil did
not inventory every item in the vehicle. But officers are permitted to exercise judgment in
conducting an inventory search and it does not have to be conducted in an all or nothing
fashion. State v. Shelton, [278 Kan. 287, 93 P.3d 1200 (2004)]. There is no evidence
suggesting Trooper Peil used the search as a ruse for a general rummaging to discover
incriminating evidence."

Generally, a search and seizure is per se unreasonable without a warrant under the
Fourth Amendment to the United States Constitution. However, there are numerous
exceptions to the warrant requirement, one of those being an inventory search of a
lawfully impounded vehicle. State v. Teeter, 249 Kan. 548, Syl. ¶¶ 1, 2, 819 P.2d 651
(1991). The United States Supreme Court has held that "[t]he decisions of this Court
point unmistakably to the conclusion reached by both federal and state courts that
inventories pursuant to standard police procedures are reasonable." South Dakota v.
Opperman, 428 U.S. 364, 372, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). Inventory
searches serve the purpose of protecting the owner's property while in police custody,
protecting against claims or disputes over stolen or lost property, and guarding police
from potential danger. State v. Branstetter, 40 Kan. App. 2d 1167, 1170, 199 P.3d 1272
(2009). However, the inventory search "must not be a ruse for general rummaging in
order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct.
1632, 109 L. Ed. 2d 1 (1990).

An inventory search of a vehicle is not valid unless the police first obtain lawful
custody of the vehicle. Teeter, 249 Kan. at 550. Kansas courts have held that absent
authority by statute or ordinance, the State must establish reasonable grounds for
impoundment. Branstetter, 40 Kan. App. 2d at 1171. The prosecution has the burden to
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prove that the impoundment was reasonable under the totality of the circumstances. State
v. Shelton, 278 Kan. 287, 293, 93 P.3d 1200 (2004). While Kansas has not established a
bright-line rule, our Supreme Court has provided a nonexhaustive list of six instances that
constitute reasonable grounds for impoundment:

"'the necessity for removing (1) an unattended-to car illegally parked or otherwise
illegally obstructing traffic; (2) an unattended-to car from the scene of an accident when
the driver is physically or mentally incapable of deciding upon steps to be taken to deal
with his property, as in the case of the intoxicated, mentally incapacitated or seriously
injured driver; (3) a car that has been stolen or used in the commission of a crime when
its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically
defective as to be a menace to others using the public highway; [or] (6) a car
impoundable pursuant to ordinance or statute which provides therefor as in the case of
forfeiture.'" Teeter, 249 Kan. at 552 (quoting State v. Boster, 217 Kan. 618, 624, 539 P.2d
294 [1975]).

Linden argues that none of these situations apply to the circumstances of this case.
The State responds that because Linden had a suspended driver's license with no proof of
insurance and an expired license plate, it was not lawful to operate the vehicle on a
Kansas highway. As a result, it was necessary for Trooper Peil to impound the vehicle
prior to having the vehicle towed. The State also asserts that the trooper followed Kansas
Highway Patrol policy that required him to perform an inventory search after
impoundment.

Our holding is predicated on Shelton, which teaches:

"Inventory searches are recognized as exceptions to the probable cause warrant
requirements of the Fourth Amendment to the United States Constitution. When a
defendant claims that a vehicle in his or her possession was unlawfully impounded by the
police, the prosecution has the burden of proving that the impoundment was reasonable
under the totality of circumstances." (Emphasis added.) 278 Kan. 287, Syl. ¶ 2.
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In short, impoundment is lawful under either the specific instances listed in State v.
Boster, 217 Kan. 618, 624, 539 P.2d 294 (1975), or under the totality of circumstances
when such law enforcement action is reasonable.

In the case on appeal, Trooper Peil had statutory authority to tow Linden's vehicle
under K.S.A. 8-1570(c)(3), which provides that any police officer may remove a vehicle
found on a highway when "the person driving or in control of such vehicle is arrested for
an alleged offense for which the officer is required by law to take the person arrested
before a judge of the district court without unnecessary delay." Trooper Peil arrested
Linden for driving on a suspended license in violation of K.S.A. 2015 Supp. 8-262(a)(3).
As noted earlier, Linden concedes this arrest was lawful. As a consequence of Linden's
lawful arrest, there was a statutory basis for the trooper to impound Linden's vehicle and
have it towed.

Moreover, aside from the statutory authorization provided by K.S.A. 2015 Supp.
8-262(a)(3), our court has found reasonable grounds to impound a vehicle after the driver
was arrested for driving on a suspended license. "A motor vehicle can be considered
unattended if the driver has been arrested and no one else is present to remove or lawfully
park it." State v. Wilson, No. 115,554, 2017 WL 3444509, at *3 (Kan. App. 2017)
(unpublished opinion), rev. denied 307 Kan. 994 (2018). Similarly, in the present case,
upon Linden's arrest there was no one present to remove or lawfully park the vehicle.

Another opinion from our court provides persuasive analysis in support of Trooper
Peil's impoundment and inventory search. In State v. Bennett, No. 108,616, 2013 WL
3970199 (Kan. App. 2013) (unpublished opinion), Bennett was arrested for driving on a
suspended license. Acting on police policy, Officer Jason Thompson called a tow truck
without consulting Bennett about the vehicle's disposition. Before the vehicle was towed,
Officer Thompson found cocaine during an inventory search. Bennett asserted the
impoundment was unreasonable and moved to suppress the drug evidence because there
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was no statutory support for impounding his vehicle prefatory to the inventory search.
The district court disagreed.

Our court held the impoundment was reasonable under the circumstances because
the vehicle's registration had expired and the driver was operating the vehicle with a
suspended out-of-state driver's license. Our court ruled: "In the legitimate exercise of his
law enforcement functions, it was reasonable under the circumstances for Officer
Thompson to take custody of the vehicle to ensure compliance with Kansas registration
statutes." 2013 WL 3970199, at *3. Our court relied on United States v. Hannum, 55 Fed.
Appx. 872, 873-76 (10th Cir. 2003) (unpublished opinion) and agreed that the vehicle
could not be legally operated on Kansas roads and there was no other way to move the
vehicle other than impoundment. We held the district court did not err in denying
Bennett's motion to suppress evidence from the inventory search. Bennett, 2013 WL
3970199, at *3.

Linden cites Teeter in support of the proposition that when the vehicle's owner or
operator is capable and willing to instruct the officer as to the vehicle's disposition, absent
some lawful reason for impounding the vehicle, his or her wishes regarding the vehicle's
disposition should be followed.

Linden does not favor us with any evidence that she ever made a request to
Trooper Peil to dispose of her vehicle in a particular way. Our Supreme Court, however,
has ruled that an officer is not required to consult a defendant about the disposition of the
vehicle. Whether an impoundment is lawful in a case is based upon the totality of the
circumstances, not whether the defendant was consulted about the car's disposition.
Shelton, 278 Kan. at 296. The Shelton court held:

"The first question arising is whether under the Fourth Amendment, a police officer must
give a driver who is competent of making a rational disposition of the vehicle, the
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opportunity to make that disposition in order to justify impoundment. The answer to this
question is no. What is required under the Fourth Amendment is that the impoundment be
reasonable under the totality of circumstances. The officer's inquiry of the driver
regarding disposition is but one of the circumstances that is considered in the court's
determination of whether the impoundment is reasonable." 278 Kan. at 293.

Under the totality of the circumstances, Trooper Peil's decision to impound and
tow the vehicle was reasonable. Linden was under arrest. Regardless, her license was
suspended. As a result, she could not legally operate her vehicle on the highway. See
K.S.A. 2018 Supp. 8-262(a)(1). She also had no proof of insurance, and the license plate
was expired; thus, the unregistered vehicle could not be operated lawfully on the
highway. Moreover, even if the vehicle could have been lawfully operated, because
Trooper Peil arrested Linden and she did not have a passenger with her to operate the
vehicle, the trooper's decision to impound and conduct an inventory search was
reasonable.

The trooper's actions were also in compliance with the Kansas Highway Patrol
Vehicle Tow/Inventory policy which provides: "Any time a vehicle is towed, transported
or otherwise removed as a result of an arrest authorized by K.S.A. 22-2401 or other
lawful instances provided by statute, an inventory of the vehicle and its contents shall be
conducted." Finally, contrary to Linden's argument and consistent with Shelton, Trooper
Peil was not required to ask Linden how he should remove her vehicle.

In summary, the district court did not err in denying Linden's motion to suppress
evidence. Trooper Peil's traffic stop was based on a reasonable suspicion that Linden had
violated Kansas law by operating an improperly registered vehicle on the highway.
Subsequent to the vehicle stop, Linden was lawfully arrested for driving on a suspended
driver's license. Without a valid registration and proof of insurance, the vehicle could not
have been lawfully operated on a Kansas highway. As a result, Trooper Peil's
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impoundment and inventory search were consonant with Kansas statutes and Kansas
Highway Patrol policy.

STATE'S APPEAL OF LINDEN'S SENTENCE
FOR SECOND TIME MARIJUANA POSSESSION

The State appeals Linden's sentence for second time marijuana possession. The
State contends the district court erred in classifying this second conviction as a class A
nonperson misdemeanor rather than a severity level 5 drug felony. The State asserts this
is an illegal sentence because it did not conform to the statutory provision in character or
in terms of punishment as of the date Linden committed the crime.

Linden counters that she was appropriately sentenced to serve a misdemeanor
punishment because the Kansas statute providing for punishment as a felony had been
amended and was no longer in effect after she committed the offense but before she was
convicted and sentenced. She contends the sentencing amendment effective July 1, 2016,
should apply retroactively to March 2, 2015, the date she committed the latest offense.

At the time Linden was sentenced, September 8, 2017, the district court
considered the parties' arguments regarding the proper sentence to be imposed. The
district court determined that, under the circumstances, it was unclear whether the
appropriate classification of the offense was a felony or misdemeanor. The district judge
ruled: "[I]n general the Court has to apply the rule of lenity when it comes to criminal
matters and that means I have to resolve uncertainty in favor of the defendant who is
facing criminal penalty. So I will . . . sustain the objection to . . . the classification of the
offense as a felony."

Whether a sentence is illegal is a question of law for which our court applies a de
novo standard of review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).
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Under K.S.A. 2018 Supp. 22-3504(1), a Kansas court may correct an illegal sentence at
any time. An illegal sentence includes a sentence that does not conform to the applicable
statutory provision, either in character or in punishment. Moreover, resolution of this
issue depends on the interpretation of sentencing statutes and their applicability as of the
dates of Linden's offense, conviction, and sentence. Interpretation of a sentencing statute
is a question of law over which appellate courts have unlimited review. State v. Collins,
303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

The key facts are uncontroverted. K.S.A. 2015 Supp. 21-5706(b)(3) provides it is
unlawful for any person to possess a hallucinogenic drug, such as marijuana. Linden
committed the current offense on March 2, 2015, and at that time had one prior
conviction for marijuana possession. At the time Linden committed the March 2, 2015
offense, K.S.A. 2015 Supp. 21-5706(c)(2)(B) classified second time marijuana
possession as a severity level 5 drug felony. Subsequently, K.S.A. 2015 Supp. 21-
5706(c)(2)(B) was amended effective July 1, 2016. L. 2016, ch. 90, § 1. That amendment
reduced the penalty for second time marijuana possession to a class A nonperson
misdemeanor. See K.S.A. 2016 Supp. 21-5706(c)(3)(B). Almost one year later, Linden
was convicted on June 29, 2017, and then sentenced on September 8, 2017.

The question presented is whether the July 1, 2016 sentencing amendment applied
retroactively to Linden's conviction for second time marijuana possession since that
offense occurred prior to the effective date of the amendment but after her conviction and
sentencing.

Our rules of statutory construction provide general guidance in resolving this
question:

"[T]he general rule of statutory construction is that a statute will operate prospectively
unless its language clearly indicates that the legislature intended that it operate
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retrospectively. The foregoing rule of statutory construction is modified where the
statutory change is merely procedural or remedial in nature and does not prejudicially
affect the substantive rights of the parties. As related to criminal law and procedure,
substantive law is that which declares what acts are crimes and prescribes the
punishment therefor; whereas procedural law is that which provides or regulates the steps
by which one who violates a criminal statute is punished. [Citations omitted.]" (Emphasis
added.) State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980).

More specifically, our Supreme Court has held: "The fundamental rule for
sentencing is that the person convicted of a crime is sentenced in accordance with the
sentencing provisions in effect at the time the crime was committed." (Emphasis added.)
State v. Overton, 279 Kan. 547, Syl. ¶ 5, 112 P.3d 244 (2005); State v. Martin, 270 Kan.
603, 608, 17 P.3d 344 (2001). Importantly, in Overton, a case that is factually similar to
the one on appeal, our Supreme Court stated: "This court has previously determined that
the amendments to the sentencing guidelines statutes are substantive and are not applied
retroactively unless the statute's language clearly indicates the legislature's intent
otherwise." Overton, 279 Kan. at 561.

The case on appeal is also similar to State v. Edwards, 28 Kan. App. 2d 379, 15
P.3d 855 (2000). In Edwards, the defendant was charged with driving while suspended, a
severity level 9 nonperson felony. At the time the defendant committed the offense, May
5, 1999, the law in effect stated that driving while suspended after two or more
convictions was a felony. The Legislature amended the statute to reduce the penalty for
the crime to a misdemeanor, effective July 1, 1999. The defendant asked the court to
apply the amendment retroactively, although he was convicted and sentenced after the
amendment.

Our court held the law is clear that a statute operates prospectively unless the
Legislature's language clearly indicates that it intended for it to operate retrospectively or
if the statute is procedural in nature. 28 Kan. App. 2d at 380. We noted that it is well
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established that criminal statutes in effect at the time of the offense govern the sentence.
28 Kan. App. 2d at 380-81. The panel relied on the holding in State v. Dailey, 228 Kan.
566, 569, 618 P.2d 833 (1980), and stated "the fact that the defendant had been convicted
and sentenced after the effective date of the statute made no difference." Edwards, 28
Kan. App. 2d at 381. Similar to Edwards, here it is irrelevant that Linden was not yet
convicted or sentenced when the July 1, 2016 amendment took effect because Kansas
courts apply the law in effect at the time the offense was committed absent specific
language to the contrary in the statute.

Linden concedes the July 1, 2016 amendment does not state that it applied
retroactively. She also does not assert that the sentencing amendment was procedural in
nature. Instead, Linden asserts, based on testimony presented to the Legislature, the
Legislature intended the amendment to apply retroactively because it would provide
relief for the prison system which is over capacity and save millions of dollars on
substance abuse programs. Linden also submits—as the district court found—that since
the amendment is silent or ambiguous on this point, the rule of lenity requires that the
lesser misdemeanor penalty should be imposed.

The State counters that the letters and testimony that comprise part of the July 1,
2016 amendment's legislative history do not include actual language incorporated in the
amendment nor do they address the retroactivity issue. The State also asserts that the rule
of lenity should not have been applied because it is reserved for situations where there is
uncertainty regarding the Legislature's intent but there was no uncertainty in this case.

The State's argument has merit. The July 1, 2016 amendment does not mention
retroactivity nor does its language provide a clear intent that it was to apply retroactively.
As to the nature of the amendment, it is well established that "[t]he prescription of a
punishment for a criminal act is substantive, not procedural, law." Martin, 270 Kan. at
608. "Generally, sentencing statutes are substantive because they affect the length of a
15

person's sentence." State v. White, 51 Kan. App. 2d 1121, 1124, 360 P.3d 484 (2015).
Given that the July 1, 2016 amendment did not state that it was to be applied
retroactively, it was substantive in nature because it related to the punishment for the
offense of second time marijuana possession as found in the Kansas Sentencing
Guidelines.

Finally:

"'The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. When a statute is plain and
unambiguous, an appellate court does not speculate as to the legislative intent behind it
and will not read into the statute something not readily found in it. Where there is no
ambiguity, the court need not resort to statutory construction.'" State v. Brownlee, 302
Kan. 491, 508-09, 354 P.3d 525 (2015) (quoting State v. Jolly, 301 Kan. 313, Syl. ¶ 2,
342 P.3d 935 [2015]).

In the case on appeal, there is no need for a review of legislative history or
invocation of the rule of lenity. The intent of the Legislature is clear by its omission of
any language intimating that the July 1, 2016 amendment was to be applied retroactively
or that it was procedural in nature. Given the plain language of the amendment and our
long-standing precedent in these sentencing matters, "the rule of lenity may not be
invoked where there is a reasonable and sensible judicial interpretation of the statutory
provision that will effect legislative design." State v. Coman, 294 Kan. 84, 87, 273 P.3d
701 (2012). The district court erred in classifying Linden's offense as a misdemeanor.

Affirmed in part, sentence vacated, and the case is remanded with directions to the
district court to resentence Linden for second time marijuana possession based on a
severity level 5 drug felony classification.