History:
L. 1994, ch. 291, § 86; L. 1994, ch. 338, § 2; L. 2004, ch. 125, § 1; Repealed, L. 2009, ch. 32, § 64; July 1.
CASE ANNOTATIONS
1. Cited in disciplinary proceeding remanded to allow imprisoned attorney a continuance to appear before hearing panel. In re Brown, 258 Kan. 731, 732, 907 P.2d 132 (1995).
2. Requires proof of specific intent; specific intent distinguished from general intent. State v. Esher, 22 Kan. App. 2d 779, 783, 922 P.2d 1123 (1996).
4. Prosecution for sale of cocaine within 1,000 feet of school must present evidence that building is school as defined by section; conviction only for sale of cocaine. State v. Star, 27 Kan. App. 2d 930, 10 P.3d 37 (2000).
5. Multiplicitous to charge illegal sale of drugs and receiving proceeds from illegal drug transactions. State v. Betz, 29 Kan. App. 2d 575, 30 P.3d 1037 (2001).
6. Statute prohibiting sale of drugs within 1,000 feet of school held inapplicable when vehicle merely passed through 1,000 feet drug free zone. State v. Barnes, 275 Kan. 364, 64 P.3d 405 (2003).
8. Case decided while appeal in this case was pending, State v. McAdam, 277 Kan. 136, is applied to this case resulting in lesser sentence. State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004).
12. Upon conviction of attempt to manufacture methamphetamine under K.S.A. 65-4159, six-month sentence reduction provided in K.S.A. 21-3301 applies as defendant must be sentenced under lesser penalty provisions of K.S.A. 65-4161. State v. Herbison, 34 Kan. App. 2d 709, 123 P.3d 561 (2005).
13. Severity level not enhanced where prior conviction did not occur until after the commission of the instant offense. State v. Ruiz-Reyes, 37 Kan. App. 2d 75, 80, 149 P.3d 521 (2007).
14. Charge hereunder, exceptions to the untimely appeal rule discussed. Casner v. State, 37 Kan. App. 2d 667, 668, 675, 155 P.3d 1202 (2007).
15. Where two offenses have identical elements but different penalties, defendant may be sentenced only to the lesser penalty. State v. Spangler, 38 Kan. App. 2d 817, 834, 173 P.3d 656 (2008).
16. Because defendant did not have prior drug conviction when K.S.A. 65-4161 was violated, subsequent conviction could not enhance conviction. State v. Ruiz-Reyes, 285 Kan. 650, 653 to 657, 175 P.3d 849 (2008).
17. If when K.S.A. 65-4161 is violated, person has two or more prior convictions, person is guilty of drug severity level 1 felony. State v. Paul, 285 Kan. 658, 660 to 663, 665, 666, 668 to 671, 175 P.3d 840 (2008).
18. Convictions hereunder vacated; trial court to conduct hearing to determine whether evidence is fruit of poisonous tree. State v. Poulton, 286 Kan. 1, 4, 179 P.3d 1145 (2008).
19. Cited; under the identical offense sentencing doctrine defendant can only be sentenced under lesser penalty. State v. Scoville, 286 Kan. 800, 801, 188 P.3d 959 (2008).
20. Cited; in discussion of McAdam case and the three exceptions for timely appeal of criminal cases. State v. Patton, 287 Kan. 200, 204, 195 P.3d 753 (2008).
21. Cited; court discusses double jeopardy analysis to drug crimes, unitary conduct and unit of prosecution test. State v. Thompson, 287 Kan. 238, 248, 256, 200 P.3d 22 (2008).
22. Convictions hereunder reversed; failure to admit certain evidence and limiting cross examination by defense counsel held reversible error. State v. Scott, 39 Kan. App. 2d 49, 50, 52, 177 P.3d 972 (2008).
23. Convictions obtained after a violation of K.S.A. 65-4161 are not used to enhance current crime convictions. State v. Unruh, 39 Kan. App. 2d 125, 134, 135, 137, 177 P.3d 411 (2008).
24. Cited; court not required to impose nonprison sentence even when such sentence is presumed, when. State v. Andelt, 40 Kan. App. 2d 796, 797, 195 P.3d 1220 (2008).
29. Conviction hereunder upheld; traffic stop and smell of marijuana provided probable cause for search. State v. Preston, 41 Kan. App. 2d 981, 207 P.3d 1081 (2009).
30. Defendant charged hereunder; district magistrate judges authorized to conduct felony arraignments, when. State v. Valladarez, 288 Kan. 671, 206 P.3d 879 (2009).
31. State failed to present sufficient evidence that defendant sold methamphetamine within 1,000 feet of a school; conviction reversed and remanded. State v. Witten, 45 Kan. App. 2d 544, 251 P.3d 74 (2011).
32. Elements of offense do not categorically match the elements of a controlled substance offense under the United States sentencing guidelines, rendering career offender designation improper. U.S. v. Madkins, 866 F.3d 1136, 1145 (10th Cir. 2017).
State v. Paul, 175 P.3d 840 (Kan. 2008). · cites it 30דDefendant acknowledges, and the record establishes, that defendant was twice convicted in 1999 of felony drug convictions “under this section,” as specified in K.S.A. 65-4161: an August 30, .1999, conviction for sale of a stimulant (Saline County Case No.”
State v. Ward, 256 P.3d 801 (Kan. 2011). · cites it 11ד21-3302); two counts of the sale or delivery of cocaine (K.”
Laymon v. State, 122 P.3d 326 (Kan. 2005). · cites it 26ד61-4159 that he should have been *432 sentenced instead under the drug severity level 3 felony provision of K.S.A. 65-4161. The Court of Appeals rejected this argument as well.”
State v. Ruiz-Reyes, 175 P.3d 849 (Kan. 2008). · cites it 33דAt sentencing, the court determined that the defendant’s conviction should be enhanced to a severity level 2 drug felony under K.S.A. 65-4161 (b) based upon a prior drug conviction that did not become final until after the defendant committed the conduct that led to the…”
State v. McAdam, 83 P.3d 161 (Kan. 2004). · cites it 17ד) Thus, it seems that K.S.A. 65-4161 was intended to fill the gaps in the Uniform Controlled Substances Act.”
State v. Campbell, 106 P.3d 1129 (Kan. 2005). · cites it 11ד65-7006; possession of methamphetamine with the intent to sell, a level three drug felony pursuant to K.S.A. 2000 Supp. 65-4161; possession of drug paraphernalia with intent to manufacture methamphetamine, a level four drug felony pursuant to K.”
State v. Barnes, 64 P.3d 405 (Kan. 2003). · cites it 15דThe statute reads, in pertinent part: “(a) 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;…”
State v. Stevens, 101 P.3d 1190 (Kan. 2004). · cites it 10דSecond, he contends that the penalty provision of K.S.A. 65-4161 applies to a violation of 65-4159 because the two sections criminalize the same conduct but 65-4161 carries a lesser penalty and is the more specific statute.”
United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017). · cites it 4דK.S.A. 65-4161(a) (2001 version). Likewise, the Act prohibited possession with intent to sell marijuana: [I]t 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; cultivate; prescribe;…”
State v. Barnes, 92 P.3d 578 (Kan. 2004). · cites it 6ד65-4159(a) and compounding a stimulant under K.S.A. 65-4161 contained identical elements, the sentencing court correctly sentenced Barnes for a drug severity level 1 felony under K.”
State v. Snellings, 273 P.3d 739 (Kan. 2012). · cites it 6ד" In turn, as in the present case, "manufacture" was statutorily defined as "the production, preparation, propagation, compounding, conversion or processing of a controlled substance.”
State v. Donaldson, 112 P.3d 99 (Kan. 2005). · cites it 6ד21-3401, and sale of cocaine, K.S.A. 65-4161(a). Donaldson raises nine issues on appeal, including: (1) improper joinder of charges, (2) insufficient evidence to support felony-murder conviction, (3) erroneous aiding and abetting instruction, (4) erroneous endorsement of State…”
State v. McAdam, 83 P.3d 161 (Kan. 2004). “) Thus, it seems that K.S.A. 65-4161 was intended to fill the gaps in the Uniform Controlled Substances Act.”
State v. Campbell, 106 P.3d 1129 (Kan. 2005). “65-7006; possession of methamphetamine with the intent to sell, a level three drug felony pursuant to K.S.A. 2000 Supp. 65-4161; possession of drug paraphernalia with intent to manufacture methamphetamine, a level four drug felony pursuant to K.”
United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017). “K.S.A. 65-4161(a) (2001 version). Likewise, the Act prohibited possession with intent to sell marijuana: [I]t 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; cultivate; prescribe;…”
State v. Stevens, 101 P.3d 1190 (Kan. 2004). “Second, he contends that the penalty provision of K.S.A. 65-4161 applies to a violation of 65-4159 because the two sections criminalize the same conduct but 65-4161 carries a lesser penalty and is the more specific statute.”
State v. Ruiz-Reyes, 175 P.3d 849 (Kan. 2008). “At sentencing, the court determined that the defendant’s conviction should be enhanced to a severity level 2 drug felony under K.S.A. 65-4161 (b) based upon a prior drug conviction that did not become final until after the defendant committed the conduct that led to the…”
— K.S.A. § 65-4161(b) — 7 cases
State v. Ruiz-Reyes, 175 P.3d 849 (Kan. 2008). “At sentencing, the court determined that the defendant’s conviction should be enhanced to a severity level 2 drug felony under K.S.A. 65-4161 (b) based upon a prior drug conviction that did not become final until after the defendant committed the conduct that led to the…”
State v. Paul, 175 P.3d 840 (Kan. 2008). “Defendant acknowledges, and the record establishes, that defendant was twice convicted in 1999 of felony drug convictions “under this section,” as specified in K.S.A. 65-4161: an August 30, .1999, conviction for sale of a stimulant (Saline County Case No.”
State v. Paul, 175 P.3d 840 (Kan. 2008). “Defendant acknowledges, and the record establishes, that defendant was twice convicted in 1999 of felony drug convictions “under this section,” as specified in K.S.A. 65-4161: an August 30, .1999, conviction for sale of a stimulant (Saline County Case No.”
State v. Ruiz-Reyes, 175 P.3d 849 (Kan. 2008). “At sentencing, the court determined that the defendant’s conviction should be enhanced to a severity level 2 drug felony under K.S.A. 65-4161 (b) based upon a prior drug conviction that did not become final until after the defendant committed the conduct that led to the…”
State v. Ward, 256 P.3d 801 (Kan. 2011). “21-3302); two counts of the sale or delivery of cocaine (K.”
State v. Barnes, 64 P.3d 405 (Kan. 2003). “The statute reads, in pertinent part: “(a) 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;…”
State v. McAdam, 83 P.3d 161 (Kan. 2004). “) Thus, it seems that K.S.A. 65-4161 was intended to fill the gaps in the Uniform Controlled Substances Act.”
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