offense sentencing doctrine in Kansas

2021In June 2020, Tomlin filed a pro se request for relief from his sentence under the identical offense sentencing doctrine as discussed by our Supreme Court in State v. Snellings, 294 Kan. 149 , 273 P.3d 739 (2012).

2021"The principle behind the identical offense sentencing doctrine . . . is: '"Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision."' [Citations omitted.]" Snellings, 294 Kan. at 151 .

2012McAdam argued that under the identical offense sentencing doctrine, he should have been sentenced under the lesser offense defined in K.S.A. 65-4161(a), which at the time, read in part: "`Except as authorized by the uniform controlled substances act, it 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; dispense or compound 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 theret

2012McAdam argued that under the identical offense sentencing doctrine, he should have been sentenced under the lesser offense defined in K.S.A. 65-4161(a), which at the time, read in part: "`Except as authorized by the uniform controlled substances act, it 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; dispense or compound 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 theret

2021In its most basic form, the identical offense sentencing doctrine holds that "if two criminal offenses have identical elements but different penalty classifications, a defendant convicted of either crime may be sentenced only under the lesser penalty provision." (Emphasis added.) State v. Friday, 297 Kan. 1023, 1046 , 306 P.3d 265 (2013).

2021In its most basic form, the identical offense sentencing doctrine holds that "if two criminal offenses have identical elements but different penalty classifications, a defendant convicted of either crime may be sentenced only under the lesser penalty provision." (Emphasis added.) State v. Friday, 297 Kan. 1023, 1046 , 306 P.3d 265 (2013).

2020For example, in State v. Warledo, 286 Kan. 927 , Syl. ¶ 9, 190 P.3d 937 (2008), we unequivocally held "[p]remeditated first-degree murder and intentional second-degree murder are not identical and the identical offense sentencing doctrine does not apply." Our analysis was succinct: "Comparing premeditated first-degree murder and intentional second-degree murder leads to the conclusion these crimes are clearly not identical.

2020For example, in State v. Warledo, 286 Kan. 927 , Syl. ¶ 9, 190 P.3d 937 (2008), we unequivocally held "[p]remeditated first-degree murder and intentional second-degree murder are not identical and the identical offense sentencing doctrine does not apply." Our analysis was succinct: "Comparing premeditated first-degree murder and intentional second-degree murder leads to the conclusion these crimes are clearly not identical.

2014That review requires a determination of whether the offenses are identical because the principle behind the identical offense sentencing doctrine is: “ ‘ “Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” ’ State v. Cooper, 285 Kan. 964, 966-67 , 179 P.3d 439 (2008) (quoting State v. Nunn, 244 Kan. 207, 229 , 768 P.2d 268 [1989]).” State v. Sellings, 294 Kan. 149, 151 , 273 P.3d 739 (2012); State v. Robinson, 293 Kan. 1002, 1037 ,

2014That review requires a determination of whether the offenses are identical because the principle behind the identical offense sentencing doctrine is: “ ‘ “Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” ’ State v. Cooper, 285 Kan. 964, 966-67 , 179 P.3d 439 (2008) (quoting State v. Nunn, 244 Kan. 207, 229 , 768 P.2d 268 [1989]).” State v. Sellings, 294 Kan. 149, 151 , 273 P.3d 739 (2012); State v. Robinson, 293 Kan. 1002, 1037 ,

2014That review requires a determination of whether the offenses are identical because the principle behind the identical offense sentencing doctrine is: “ ‘ “Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” ’ State v. Cooper, 285 Kan. 964, 966-67 , 179 P.3d 439 (2008) (quoting State v. Nunn, 244 Kan. 207, 229 , 768 P.2d 268 [1989]).” State v. Sellings, 294 Kan. 149, 151 , 273 P.3d 739 (2012); State v. Robinson, 293 Kan. 1002, 1037 ,

2014That review requires a determination of whether the offenses are identical because the principle behind the identical offense sentencing doctrine is: “ ‘ “Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” ’ State v. Cooper, 285 Kan. 964, 966-67 , 179 P.3d 439 (2008) (quoting State v. Nunn, 244 Kan. 207, 229 , 768 P.2d 268 [1989]).” State v. Sellings, 294 Kan. 149, 151 , 273 P.3d 739 (2012); State v. Robinson, 293 Kan. 1002, 1037 ,

2013After reviewing Kansas caselaw, we identified three situations where the doctrine may apply: “ ‘ “(1) where one statute defines a lesser included offense of the other and they carry different penalties . . . ; (2) where the statutes overlap and carry different penalties . . . ; (3) where the statutes are identical . . . ." ' " Sandberg, 290 Kan. at 986 (quoting State v. Campbell, 279 Kan. 1, 14 , 106 P.3d 1129 [2005]).

2011State v. Sandberg, 290 Kan. 980, 984 , 235 P.3d 476 (2010).

2010See Laymon v. State, 280 Kan. 430, 438, 444 , 122 P.3d 326 (2005) (invocation of McAdam , providing defendant could only be sentenced to lesser penalty when defendant is convicted under statutes containing identical elements but providing different penalties, will be unsuccessful if no direct appeal was taken and the invocation occurs for the first time on a collateral attack of sentence; appellate counsel’s failure to pursue McAdam line of argument was ineffective assistance of counsel); State v. McCoin, 278 Kan. 465, 467-68 , 101 P.3d 1204 (2004) (no jurisdiction over untimely motion for arr

2010See Laymon v. State, 280 Kan. 430, 438, 444 , 122 P.3d 326 (2005) (invocation of McAdam , providing defendant could only be sentenced to lesser penalty when defendant is convicted under statutes containing identical elements but providing different penalties, will be unsuccessful if no direct appeal was taken and the invocation occurs for the first time on a collateral attack of sentence; appellate counsel’s failure to pursue McAdam line of argument was ineffective assistance of counsel); State v. McCoin, 278 Kan. 465, 467-68 , 101 P.3d 1204 (2004) (no jurisdiction over untimely motion for arr

2010Recently, in State v. Thompson, 287 Kan. 238, 258 , 200 P.3d 22 (2009), we reiterated that "[i]f the elements in overlapping provisions are identical, the due process considerations involved in Kansas' identical offense sentencing doctrine apply and a defendant may only be sentenced to the lesser punishment provided for in the identical, overlapping provisions." Here, Reyna was actually charged with and convicted of a lesser included offense of the crime for which he was sentenced.

2010Recently, in State v. Thompson, 287 Kan. 238, 258 , 200 P.3d 22 (2009), we reiterated that "[i]f the elements in overlapping provisions are identical, the due process considerations involved in Kansas' identical offense sentencing doctrine apply and a defendant may only be sentenced to the lesser punishment provided for in the identical, overlapping provisions." Here, Reyna was actually charged with and convicted of a lesser included offense of the crime for which he was sentenced.

2010See Laymon v. State, 280 Kan. 430, 438, 444 , 122 P.3d 326 (2005) (invocation of McAdam , providing defendant could only be sentenced to lesser penalty when defendant is convicted under statutes containing identical elements but providing different penalties, will be unsuccessful if no direct appeal was taken and the invocation occurs for the first time on a collateral attack of sentence; appellate counsel’s failure to pursue McAdam line of argument was ineffective assistance of counsel); State v. McCoin, 278 Kan. 465, 467-68 , 101 P.3d 1204 (2004) (no jurisdiction over untimely motion for arr

2010See Laymon v. State, 280 Kan. 430, 438, 444 , 122 P.3d 326 (2005) (invocation of McAdam , providing defendant could only be sentenced to lesser penalty when defendant is convicted under statutes containing identical elements but providing different penalties, will be unsuccessful if no direct appeal was taken and the invocation occurs for the first time on a collateral attack of sentence; appellate counsel’s failure to pursue McAdam line of argument was ineffective assistance of counsel); State v. McCoin, 278 Kan. 465, 467-68 , 101 P.3d 1204 (2004) (no jurisdiction over untimely motion for arr

2020Warledo."); State v. Hernandez, 292 Kan. 598, 607-08 , 257 P.3d 767 (2011) ("In Warledo, this court considered the argument that premeditated first-degree murder and intentional second-degree murder run afoul of the identical offense sentencing doctrine because there is no appreciable difference between 'premeditation' and 'intentional.' This court concluded that the two 'crimes are clearly not identical.'"); State v. Salas, 289 Kan. 245, 251 , 210 P.3d 635 (2009) ("[W]e reject Salas' argument that premeditated first- 12 degree murder and intentional second-degree murder are substantially simi

2020Warledo."); State v. Hernandez, 292 Kan. 598, 607-08 , 257 P.3d 767 (2011) ("In Warledo, this court considered the argument that premeditated first-degree murder and intentional second-degree murder run afoul of the identical offense sentencing doctrine because there is no appreciable difference between 'premeditation' and 'intentional.' This court concluded that the two 'crimes are clearly not identical.'"); State v. Salas, 289 Kan. 245, 251 , 210 P.3d 635 (2009) ("[W]e reject Salas' argument that premeditated first- 12 degree murder and intentional second-degree murder are substantially simi

2020Moore I, 2012 WL 2045359, at *5 .

2014That review requires a determination of whether the offenses are identical because the principle behind the identical offense sentencing doctrine is: “ ‘ “Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” ’ State v. Cooper, 285 Kan. 964, 966-67 , 179 P.3d 439 (2008) (quoting State v. Nunn, 244 Kan. 207, 229 , 768 P.2d 268 [1989]).” State v. Sellings, 294 Kan. 149, 151 , 273 P.3d 739 (2012); State v. Robinson, 293 Kan. 1002, 1037 ,

2014That review requires a determination of whether the offenses are identical because the principle behind the identical offense sentencing doctrine is: “ ‘ “Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” ’ State v. Cooper, 285 Kan. 964, 966-67 , 179 P.3d 439 (2008) (quoting State v. Nunn, 244 Kan. 207, 229 , 768 P.2d 268 [1989]).” State v. Sellings, 294 Kan. 149, 151 , 273 P.3d 739 (2012); State v. Robinson, 293 Kan. 1002, 1037 ,

2010Application of Kansas’ Identical Offense Sentencing Doctrine Several years after the Batchelder decision, this court applied the identical offense sentencing doctrine in State v. Clements, 241 Kan. 77, 83 , 734 P.2d 1096 (1987).

2010Application of Kansas’ Identical Offense Sentencing Doctrine Several years after the Batchelder decision, this court applied the identical offense sentencing doctrine in State v. Clements, 241 Kan. 77, 83 , 734 P.2d 1096 (1987).

2008Harp “denied being informed of his appellate remedies, the steps necessary to implement an appeal, or the possibility of an appeal on the identical offense doctrine.” 283 Kan. at 747 .

2008The Court of Appeals agreed and held: “[T]he facts of the case *260 demonstrate that the defendant used drug paraphernalia with an intent to manufacture methamphetamine” and that the “use of drug paraphernalia with intent to manufacture is identical to manufacturing methamphetamine.” Thompson II, 2008 WL 142103, at *6 .