State v. Wilson

1

NOT DESIGNATED FOR PUBLICATION

No. 114,505

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER D. WILSON,
Appellant.


MEMORANDUM OPINION

Appeal from Barton District Court; RON SVATY, judge. Opinion filed December 23, 2016.
Affirmed.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Amy J. Mellor, assistant county attorney, Douglas A. Matthews, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before POWELL, P.J., PIERRON and HILL, JJ.

Per Curiam: This is Christopher D. Wilson's second appeal concerning the
legality of his sentence. Wilson was convicted of aiding and abetting the manufacture of
methamphetamine. At sentencing, Wilson sought a dispositional departure to probation
from the presumptive prison sentence which was granted by the district court. The State
subsequently filed a motion to correct an illegal sentence, asserting that K.S.A. 2011
Supp. 21-5703(d) prohibited the district court from placing Wilson on probation. The
district court denied the State's motion, finding that K.S.A. 2011 Supp. 21-5703(d) did
not apply to Wilson and alternatively ruling that the statute was unconstitutional. The
2

district court did not make any findings to support its ruling that the statute was
unconstitutional.

The State appealed, and a panel of this court agreed with the State that the statute
prohibited the district court from placing Wilson on probation. The case was remanded
for resentencing and for additional findings of fact and conclusions of law regarding the
district court's ruling that the statute was unconstitutional. Ultimately, the district court
reversed itself, reluctantly ruled that the statute was not unconstitutional, and sentenced
Wilson to 169 months in prison.

Wilson now appeals, asserting that K.S.A. 2011 Supp. 21-5703(d) violates the
Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution
and § 1 of the Kansas Constitution Bill of Rights because the statute permits a district
court to place individuals convicted of conspiracy to commit the manufacture of
methamphetamine on probation but denies that opportunity to similarly situated
individuals—like Wilson—convicted of aiding and abetting the manufacture of
methamphetamine. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2012, a jury convicted Wilson of one count of aiding and abetting the
manufacture of methamphetamine, a severity level 1 nonperson felony in violation of
K.S.A. 2011 Supp. 21-5703(a) and K.S.A. 2011 Supp. 21-5210(a). Wilson moved for a
downward durational and/or dispositional departure, claiming that he played a minor role
in the crime and that the degree of harm or loss attributed the crime was significantly less
than typical for such an offense because the product was not distributed to others who
were not involved in its manufacture. Wilson also noted that his codefendants received
generous plea agreements from the State.

3

Because of Wilson's criminal history score of C and the severity level of the crime,
his sentencing range was between 169 and 187 months with a presumption of
imprisonment. The district court gave Wilson the choice of two alternative sentences: (1)
187 months in prison and placement on probation or (2) 178 months in prison. After
hearing Wilson's response, the district court sentenced Wilson to 187 months in prison.
However, the district court granted Wilson's motion for a dispositional departure and
placed him on probation for 36 months.

The State filed a motion to correct an illegal sentence, asserting that Wilson's
sentence was illegal under K.S.A. 2011 Supp. 21-5703(d) because that statute prohibited
the district court from granting probation to a person convicted of a crime under K.S.A.
2011 Supp. 21-5703. After a hearing, the district court rejected the State's argument,
ruling that K.S.A. 2011 Supp. 21-5703(d) did not apply to Wilson. In the alternative, the
district court ruled that if the statute did apply, then it was unconstitutional.

The State appealed to a panel of this court, which concluded that K.S.A. 2011
Supp. 21-5703(d) was applicable to Wilson and Wilson received an illegal sentence
because the district court improperly placed him on probation. State v. Wilson, No.
109,909, 2014 WL 1096939, at *5 (Kan. App. 2014), rev. denied 301 Kan. 1052 (2015).
In rejecting Wilson's claim that the statute did not apply to one convicted of aiding and
abetting a crime under K.S.A. 2011 Supp. 21-5703, the panel concluded

"[T]he district court erred in finding that K.S.A. 2011 Supp. 21-5703(d) did not apply to
Wilson because he was an aider and abettor. As an aider and abettor, Wilson should be
sentenced exactly as a principal. Because Wilson was convicted of aiding and abetting
the manufacture of methamphetamine, K.S.A. 2011 Supp. 21-5703(d) prohibited a
sentence of probation. Thus, Wilson's sentence of probation constituted an illegal
sentence under the statute." 2014 WL 1096939, at *5.

4

The case was remanded to the district court for resentencing in compliance with
K.S.A. 2011 Supp. 21-5703(d). But because the district court had alternatively declared
K.S.A. 2011 Supp. 21-5703(d) unconstitutional without making any additional findings,
the panel also directed the district court to make additional findings regarding the
constitutionality of the statute. 2014 WL 1096939, at *5-6.

At resentencing, Wilson repeated his argument that the provision in K.S.A. 2011
Supp. 21-5703(d) prohibiting probation in manufacturing cases was unconstitutional
under both the state and federal Constitutions as a violation of both the Equal Protection
Clauses and as cruel and unusual punishment. The district court indicated it believed the
statute was likely unconstitutional but declined to make such a finding, upholding the
statute as constitutional instead. Stated the court:

"When a Court of Appeals sends a case back down to a trial judge and says make
your findings on unconstitutionality, I'm guessing that they don't think it's
unconstitutional or they would have ruled that themselves. Maybe I'm guessing wrong.
Both of you have made very strong arguments. I tend to personally agree with [defense
counsel], but it's not such an overwhelming feeling that I have the courage to make that
decision and then get reversed by the Court of Appeals. So I am going to not make the
finding that it is unconstitutional; although, that's the decision I would kind of tend to
make. So that leaves me with following the dictate of the Court of Appeals."

The district court sentenced Wilson to a modified term of 169 months in prison. Wilson
timely appeals.

DOES K.S.A. 2011 SUPP. 21-5703(d) VIOLATE THE EQUAL PROTECTION CLAUSES
OF THE FEDERAL AND STATE CONSTITUTIONS?

Wilson claims that K.S.A. 2011 Supp. 21-5703(d) is unconstitutional in that it
violates the Equal Protection Clauses of the Fourteenth Amendment and § 1 of the
5

Kansas Constitution Bill of Rights because the statute treats similarly situated individuals
differently without any justification. Wilson claims that K.S.A. 2011 Supp. 21-5703(b)
permits the district court to place those individuals convicted of conspiracy to
manufacture methamphetamine on probation but that K.S.A. 2011 Supp. 21-5703(d)
denies that opportunity to similarly situated individuals like himself who were convicted
of aiding and abetting the manufacture of methamphetamine.

The determination of whether a provision of the revised Kansas Sentencing
Guidelines Act, K.S.A. 2015 Supp. 21-6801 et seq., is unconstitutional is a question of
law, and our review is unlimited. State v. Johnson, 286 Kan. 824, 842, 190 P.3d 207
(2008). "We presume statutes are constitutional and must resolve all doubts in favor of a
statute's validity." State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). Our duty is to
interpret a statute in a way that makes it constitutional if there is any reasonable
construction that would maintain the legislature's apparent intent. State v. Petersen-
Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016).

The Fourteenth Amendment's Equal Protection Clause provides that "no state shall
deny to any person within its jurisdiction the equal protection of the laws" and "requires
that states treat similarly situated individuals similarly." State v. Cheeks, 298 Kan. 1, Syl.
¶¶ 1, 3, 310 P.3d 346 (2013); see Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591,
602, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008). "Section 1 of the Kansas Constitution
Bill of Rights [similarly] states: 'All men are possessed of equal and inalienable natural
rights, among which are life, liberty, and the pursuit of happiness.' Section 1 and the
Fourteenth Amendment . . . provide virtually the same protections." Miller v. Johnson,
295 Kan. 636, 665-66, 289 P.3d 1098 (2012). Because Wilson makes no distinction
between them, we apply the same analysis to both.

Kansas courts evaluate equal protection challenges using a three-step process:

6

"First, the court considers whether the legislation creates a classification resulting in
different treatment of similarly situated individuals. Second, if the statute does treat
'arguably indistinguishable' individuals differently, then the court examines the nature of
the classification or right at issue to determine the appropriate level of scrutiny. Finally,
the court applies the proper level of scrutiny to the statute." Cheeks, 298 Kan. 1, Syl. ¶ 2.

Under the first step of our analysis, the Equal Protection Clause is implicated only
if there is a differential treatment of similarly situated individuals. State v. Salas, 289
Kan. 245, 248, 210 P.3d 635 (2009). It is the burden of the party raising an equal
protection argument to demonstrate that he or she is similarly situated to other individuals
treated differently, and our review of whether members of a class are receiving different
treatment is restricted to "the distinctions argued by the complaining party." 289 Kan. at
249. Determining whether individuals are similarly situated is "not always susceptible to
ease of application." In re Tax Appeal of Weisgerber, 285 Kan. 98, 106, 169 P.3d 321
(2007). "Unless a party meets his or her 'similarly situated' burden, we do not move to our
second step in equal protection analysis." State v. Huerta, 291 Kan. 831, 834, 247 P.3d
1043 (2011).

Because Wilson was convicted of aiding and abetting the manufacture of
methamphetamine, K.S.A. 2011 Supp. 21-5703(d) prohibits the district court from
placing him on probation. K.S.A. 2011 Supp. 21-5703 provides in relevant part:

"(a) It shall be unlawful for any person to manufacture any controlled substance
or controlled substance analog.
"(b) Violation or attempted violation of subsection (a) is a drug severity level 1
felony. The provisions of subsection (d) of K.S.A. 2011 Supp. 21-5301, and amendments
thereto, shall not apply to a violation of attempting to unlawfully manufacture any
controlled substance pursuant to this section.
. . . .
"(d) The sentence of a person who violates this section shall not be subject to
statutory provisions for suspended sentence, community service work or probation."
7


Here, Wilson defines the parameters of this class as those individuals who have
been convicted of aiding and abetting the manufacture of methamphetamine and those
convicted of conspiracy to manufacture methamphetamine. Wilson complains that those
convicted of aiding and abetting the manufacture of methamphetamine are denied the
opportunity for probation while those convicted of conspiracy to manufacture
methamphetamine may be placed on probation. Wilson claims there is no justification for
the difference between the two classes of similarly situated individuals. In response, the
State suggests there is no constitutional issue to resolve as Wilson has not suggested that
he is a member of a protected class. Wilson's argument appears to be based on the
possibility of punishments imposed for two crimes.

In his first appeal, Wilson relied on State v. Moffit, 38 Kan. App. 2d 414, 166 P.3d
435 (2007), to support his position that K.S.A. 2011 Supp. 21-5703(d) refers only to
those convicted of manufacturing and attempting to manufacture methamphetamine but
did not apply to those convicted of aiding and abetting. Moffit was convicted of
conspiracy to manufacture methamphetamine; the district court granted a dispositional
departure and placed him on probation. The State appealed on a question reserved as to
whether the statutory provision also at issue prohibited probation for a defendant
convicted of conspiracy to manufacture methamphetamine. A panel of this court found
that because the plain language of the statute did not include a reference to conspiracy,
there was no indication that the prohibition against probation applied to a defendant
convicted of conspiracy to manufacture methamphetamine. 38 Kan. App. 2d at 418.

Similarly, Wilson reasoned that since K.S.A. 2011 Supp. 21-5703(d) did not
mention or refer to aiding and abetting the manufacture of methamphetamine, the
legislature did not intend to prohibit probation in such an instance either. The panel
rejected this argument by stating:

8

"What Wilson overlooks is that aiding and abetting is a theory of criminal liability by
which a person may be liable for a crime committed by another, unlike conspiracy,
attempt, and solicitation, which are distinct crimes. See State v. Simmons, 282 Kan. 728,
735, 148 P.3d 525 (2006) (discussing difference between conspiracy and aiding and
abetting); compare K.S.A. 2011 Supp. 21-5302(c)-(e) (establishing sentencing provisions
for crime of conspiracy) with K.S.A. 2011 Supp. 21-5210(a) (establishing no such
provisions for aiding and abetting)." Wilson, 2014 WL 1096939, at *4.

The panel noted that conspiracy is an anticipatory crime found under Article 53 of the
Kansas Criminal Code, while aiding and abetting crimes are found under Article 52 on
principles of criminal liability. 2014 WL 1096939, at *4. Kansas law provides that an
aider and abettor "may be charged, tried, convicted, and sentenced in the same manner as
if he or she were a principal." State v. Wakefield, 267 Kan. 116, 142, 977 P.2d 941
(1999). This means that one convicted of aiding and abetting is sentenced at the same
level as the associated crime.

The legislature has the discretion to determine the punishment for different crimes.
State v. Mims, 264 Kan. 506, 517, 956 P.2d 1337 (1998). The legislature has also made
the deliberate choice to prohibit a person convicted as an aider and abettor from receiving
probation. Wakefield, 267 Kan. at 142. Conversely, Kansas has a long history of
sentencing one convicted of conspiracy differently from one who aids and abets a crime.
State v. Hobson, 234 Kan. 133, 138, 671 P.2d 1365 (1983); see also State v. Campbell,
217 Kan. 756, 769, 539 P.2d 329 (1975) (distinguishing conspiracy from actual
participation in the underlying crime). The severity level of conspiring to commit a
nondrug felony is typically "two severity levels below the . . . underlying or completed
crime." K.S.A. 2011 Supp. 21-5302(c)(1). For drug offenses, the sentencing guidelines
grid provides that the sentence for a conspiracy conviction is reduced by 6 months from
the underlying or completed crime. K.S.A. 2011 Supp. 21-5302(d).

9

At resentencing, Wilson argued that it was inherently unfair to treat someone
convicted of manufacturing as an aider and abettor significantly different than someone
convicted of conspiracy to manufacture. Wilson focuses on the level of participation
between the crimes, asserting that he is in a class with others who are less culpable than
the primary actor of the crime. But as we have already explained, Kansas law places no
distinction between an aider and abettor and the principal actor in the commission of a
crime. As such, Wilson may be punished at the same level as a principal actor. Wilson is
not similarly situated to those individuals who merely conspire to commit the
manufacture of methamphetamine and has not met his burden to show disparate treatment
of similarly situated individuals. K.S.A. 2011 Supp. 21-5703(d) is constitutional.

Affirmed.