IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 91,113
JIMMIE R. BRYANT,
Appellant,
v.
STATE OF KANSAS,
Appellee.
SYLLABUS BY THE COURT
1. The holding in State v. McAdam, 277 Kan. 136, Syl. ¶ 3, 83 P.3d 161
(2004), was a
clarification of existing law and not new law.
2. A defendant has no right under either the Equal Protection or the Due Process Clause of
the Fourteenth Amendment to the lesser sentence when the crime of conviction and
another crime have the same elements.
3. A defendant who enters a guilty plea and does not file a direct appeal cannot collaterally
challenge the sentence imposed on the ground that the offense he or she pled guilty to and
a second offense having a lesser penalty have identical elements.
Review of the judgment of the Court of Appeals in an unpublished opinion filed July 23,
2004. Appeal
from Pratt district court; ROBERT J. SCHMISSEUR, judge. Judgment of the Court of Appeals
affirming the
district court is affirmed. Judgment of the district court is affirmed. Opinion filed September 2,
2005.
Randall L. Hodgkinson, deputy appellate defender, argued the cause and was
on the brief for appellant.
Ernest H. Richardson, acting county attorney, argued the cause, and
Phill Kline, attorney general, was
with him on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Jimmie R. Bryant pled guilty in February 2002 to one count of
attempted manufacture of methamphetamine, a drug severity level 1 offense. He was sentenced to
81 months' imprisonment. There was no direct appeal. In May 2003 Bryant filed a K.S.A.
60-1507 motion seeking to have his sentence vacated and the case remanded for resentencing
pursuant to State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev.
denied 274 Kan. 1115
(2002). The district court denied the motion. The Court of Appeals affirmed. This court granted
defendant's petition for review to consider the single question of whether a defendant may assert
the rule from State v. McAdam, 277 Kan. 136, Syl. ¶ 3, 83 P.3d 161 (2004), as
to identical
offenses, in a collateral challenge claiming that the defendant could only be sentenced to the lesser
penalty.
Bryant pled guilty to one count of attempt to manufacture methamphetamine in violation
of K.S.A. 65-4159(b)(1), a severity level 1 drug felony. Pursuant to the plea agreement, the State
dismissed four remaining charges: (1) possession of pseudoephedrine/ephedrine in violation of
K.S.A. 65-7006, a severity level 1 drug felony; (2) possession of methamphetamine in violation of
K.S.A. 65-4160(a), a severity level 4 drug felony; (3) possession of drug paraphernalia in
violation of K.S.A. 65-4152(a)(3), a severity level 4 drug felony; and (4) criminal possession of a
firearm in violation of K.S.A. 21-4204(a)(3), a severity level 8 nonperson felony. Following the
plea agreement, the State and defendant jointly then sought a downward departure in the sentence
from the presumptive standard of 162 months' to 81 months' imprisonment. After acknowledging
the plea agreement, the district court judge sentenced defendant to 81 months' imprisonment.
Bryant's 60-1507 motion seeks to have his sentence vacated and the matter remanded for
resentencing pursuant to Frazier, 30 Kan. App. 2d 398. The trial court denied relief.
Bryant
appealed to the Court of Appeals where he argued that McAdam controlled and
sought to have
the trial court's decision reversed and the matter remanded for resentencing to a severity level 3
drug felony. The Court of Appeals affirmed. Bryant v. State, No. 91,113, unpublished
opinion
filed July 23, 2004.
In Frazier, a direct appeal, the Court of Appeals had concluded that
possession of
ephedrine or pseudoephedrine, K.S.A. 65-7006(a), and possession of drug paraphernalia, K.S.A.
65-4152(a)(3), were identical offenses prohibiting possession of ephedrine or pseudoephedrine for
use in the manufacture of a controlled substance. 30 Kan. App. 2d at 404-05. The Court of
Appeals vacated Frazier's severity level 1 felony sentence and remanded to the district court with
directions to impose a sentence for a drug severity level 4 felony.
In McAdam, also a direct appeal, this court had held that the elements of
conspiracy to
manufacture methamphetamine under K.S.A. 65-4159(a) are identical in the context of
methamphetamine to the elements of 65-4161(a), the compounding of illegal substances, and
therefore the defendant could only be sentenced to the less severe penalty of the two statutes. The
court then vacated McAdam's severity level 1 drug felony sentence and remanded the matter to
the district court with directions to impose a sentence for a severity level 3 drug felony as
provided for with a violation of 65-4161(a). 277 Kan. at 146-47.
In the present case, the Court of Appeals ordered the parties to brief the question whether
the reasoning in Wilson v. State, 31 Kan. App. 2d 728, 71 P.3d 1180, rev.
denied 276 Kan. 974
(2003), applied. In Wilson, the Court of Appeals held that Frazier "will
not be retroactively
applied in a K.S.A. 60-1507 collateral attack of an unappealed conviction after a favorable plea
agreement." 31 Kan. App. 2d 728, Syl.
The Court of Appeals determined that the facts of the present case were analogous to the
facts in Wilson, "where the defendant sought to have his sentence reduced from a
level 1 drug
felony for possession of ephedrine/pseudoephedrine to a level 4 drug felony for possession of
drug paraphernalia citing State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188,
rev. denied 274
Kan. 1115 (2002)." Slip op. at 4. Continuing its comparison of the present case to
Wilson, the
Court of Appeals stated:
"Subsequently, in Wilson, the defendant, who had entered a no contest
plea to possession of
ephedrine/pseudoephedrine under K.S.A. 65-7006(a), filed a K.S.A. 60-1507 [a collateral attack]
motion
arguing his sentence was illegal under Frazier. This court disagreed and held that
where a defendant
enters a no contest plea to take advantage of a favorable plea agreement and does not file a direct
appeal,
he or she cannot collaterally challenge the sentence imposed. 31 Kan. App. 2d at 733-34." Slip
op. at 5.
The Court of Appeals then noted:
"Here, the facts are substantially the same procedurally as those in
Wilson. First, the defendant
entered into a plea agreement which resulted in the State dismissing several other charges. In
addition,
the State joined the defendant in his motion for a downward durational departure. The sentencing
court,
on September 2, 2002, accepted the plea and imposed the stipulated sentence of 81 months. No
direct
appeal was taken. Instead, almost nine months later, the defendant filed a K.S.A. 60-1507 motion
challenging his sentence." Slip op. at 5-6.
The Court of Appeals then stated:
"It is settled law that state courts are under no constitutional duty to apply their
criminal
decisions retroactively. See Wilson, 31 Kan. App. 2d at 733. Here, the defendant's
sentence was final
before McAdam was decided on January 30, 2004. There is no claim that a new
constitutional rule of
criminal procedure is at issue, and no one is arguing that the McAdam decision stands
for the proposition
that the defendant could not be convicted of the crime as set out in the plea agreement. We
understand
there is no right to a lesser sentence when two crimes have the same elements under the United
States
Constitution. United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct.
2198 (1979) . . . .
"The defendant's only right to relief would arise from our Supreme Court's
decisions in State v.
Nunn, 244 Kan. 207, 768 P.2d 268 (1989), and State v. Clements, 241 Kan.
77, 734 P.2d 1096 (1987).
However, we understand that both Nunn and Clements were direct
appeals and not collateral attacks as is
the case here. Neither of those decisions control the question here.
"As in Wilson, we decline to hold that McAdam applies
retroactively to those cases on collateral
review because to do so would give the defendant the double benefit of a favorable plea
agreement, with a
significant downward durational departure and then the benefit of an issue he failed to raise at the
trial
court or on direct appeal. Similarly, the defendant cannot argue his sentence should have been for
a
severity level 4 felony [under Frazier] for the same reason." Slip op. at 6-7.
In response to the Court of Appeals' order, Bryant now contends to this court that
Wilson
should not be applied because its reasoning was erroneously drawn from Easterwood v.
State, 273
Kan. 361, 44 P.3d 1209, cert. denied 537 U.S. 951 (2002). In
Easterwood, the principal question
was whether State v. Sophophone, 270 Kan. 703, 19 P.3d 70 (2001), should be
applied so that
Easterwood, who had been sentenced in 1996, could have his guilty pleas set aside in a collateral
attack. In Sophophone's direct appeal, this court held that the killing of his co-felon by a law
enforcement officer as the co-felon was fleeing from an aggravated burglary in which both felons
had participated did not support Sophophone's conviction for felony murder. 270 Kan. at 713.
"The facts in Sophophone were almost identical to Easterwood's situation" with "the
deaths in
both cases result[ing] from the lawful act of a law enforcement officer." 273 Kan. at 367-68. In
reaching its conclusion that Sophophone should not be applied, the
Easterwood court reasoned:
"Felony murder clearly existed when Easterwood pled. A death had occurred
during a covered
felony. Easterwood was a primary actor in the aggravated robbery and kidnapping, which was
necessary to
invoke the felony-murder doctrine. He admitted in his plea colloquy that he was guilty. He asked
the court
to accept the plea agreement. He failed to appeal or challenge the court's acceptance of his plea.
We will
not now retroactively decide that his plea is void because of a later favorable ruling on the precise
issue he
voluntarily declined to challenge." 273 Kan. at 382-83.
In a supplemental brief, Bryant now contends that Easterwood was an
unsuitable source
for Wilson's reasoning because Easterwood was a collateral attack on
convictions and Wilson's
collateral attack was on his sentence. Bryant argues that Easterwood had waived his right to
collaterally attack his conviction by pleading guilty, but that Bryant could attack his illegal
sentence at any time pursuant to K.S.A. 22-3504. He now asserts that neither the State nor a
defendant can stipulate to an illegal sentence or waive an illegal sentence. We note that this court,
in State v. Barnes, 278 Kan. 121, 124, 92 P.3d 578 (2004), squarely faced the
question whether
the defendant's severity level 1 drug felony sentence for manufacture of methamphetamine under
K.S.A. 65-4159(a) was an illegal sentence within the meaning of K.S.A. 22-3504(1), applied our
decision in McAdam, and concluded that it was not.
In addition, Bryant also argued that Wilson was wrongly decided because it
failed to
follow a "critical component" of Easterwood. Easterwood had been advised by trial
counsel of the
range of penalties and, in addition, the potential for an argument that the facts of his case did not
subject him to felony murder. In Wilson, the Court of Appeals had observed that the
"significant
difference" between Easterwood and Wilson "is that there was no
discussion by counsel shown of
record that Wilson might argue for the Frazier result." 31 Kan. App. 2d at 734. The
Wilson court,
however, concluded that the possibility of fighting a Frazier issue was outweighed by
defendant's
advantageous plea, stating:
"It is perfectly logical that with K.S.A. 1999 Supp. 65-7006(a) so new and Wilson facing
so many counts
and charges that even if the argument had been raised the detriments would outweigh the possible
benefits
of fighting the Frazier issue in the district and appellate courts along with all the
existing charges. Based
on the lack of a record before us, it is not proper for us to speculate on facts that may or may not
have been
a part of the plea negotiations.
"We decline, under the facts presented to us in this case to rule that
Frazier must be applied
retroactively. To do so would give Wilson a double benefit, a favorable plea agreement and then
the
benefit of an issue he initially failed to raise on appeal." 31 Kan. App. 2d at 734.
In his petition for review, Bryant reiterates the argument that there is a distinction between
a collateral attack on a conviction and a collateral attack on a sentence. Bryant does not contend
that he is guilty of an offense other than the offense for which he entered a plea, or argue that the
sentence imposed was not appropriate for the offense; instead, he emphasizes that he did not
knowingly waive his right to receive the appropriate sentence.
In support of this position, Bryant cites Carmichael v. State, 255 Kan. 10, 872
P.2d 240
(1994); LaBona v. State, 255 Kan. 66, 872 P.2d 271 (1994); State v.
Heywood, 245 Kan. 615,
783 P.2d 890 (1989); and Barnes. Carmichael collaterally attacked his jury
convictions based on
an intervening appellate decision, and the court held that, under such circumstances, Carmichael
should be resentenced for a more specific offense. 255 Kan. at 11, 19. LaBona, on the same
ground as Carmichael, collaterally attacked the convictions he pled guilty to, and the court held
that, under these circumstances, LaBona had waived his right to do so. 255 Kan. at 66, 69-70.
While Heywood's direct appeal from a guilty plea was pending, the court remanded Heywood's
case for resentencing in light of an intervening appellate decision. 245 Kan. at 616. Likewise,
Barnes' case was remanded for resentencing in accordance with McAdam because it
was pending
on direct appeal when McAdam was decided. Barnes, 278 Kan. at 129.
Bryant reasons that Carmichael, Heywood, and Barnes prevailed because they had not
waived the right they sought; LaBona, on the other hand, by pleading guilty, waived the right to
collaterally attack his convictions. Carmichael, according to Bryant, had not waived his right
because he had been convicted by a jury rather than pleading guilty. Bryant argues that Heywood
and Barnes had not waived their rights when they had pled guilty because they were attacking the
sentences imposed rather than their convictions. Bryant asserts that in Barnes this
court "held that
a defendant does not waive a McAdam claim by pleading guilty."
Bryant's interpretation of Barnes is at odds with the court's statements. The
holding in
Barnes, in fact, was "that the decision in McAdam should be applied to
Barnes' case since it was
pending on appeal at the time of the decision in McAdam." (Emphasis
added.) 278 Kan. at 129.
Heywood was cited in Barnes because the procedural histories of the two
cases were the same,
i.e., both were pending direct appeals, and the court concluded that, "under
Heywood, the
appropriate disposition would be to remand for resentencing." 278 Kan. at 128. Although it did
not directly state reasons why, the Barnes court clearly stated that a direct appeal and
a collateral
proceeding warrant different treatment. Rejecting the State's request in Barnes that it
follow the
reasoning from Wilson, the court stated: "Because this case is not a collateral attack,
much of the
Wilson court's analysis is inapplicable here. The question presented in this case is not
whether the
McAdam rule can be asserted in a collateral attack." 278 Kan. at 127.
Bryant insists, however, that it should not matter whether a direct appeal or collateral
attack brings a question to the court. The key is waiver. Bryant categorizes himself with Barnes
and Heywood as not having waived the right to receive an appropriate sentence. In fact, we note
Bryant did waive a challenge to his sentence by not appealing the sentence, whereas by appealing
their sentences, Barnes and Heywood had preserved their challenges.
Bryant cites Reed v. Hannigan, 295 F.3d 1061 (10th Cir. 2002), for the
distinction
between a collateral attack of a conviction following trial and a guilty plea. Reed pled guilty to
indecent liberties with a child based on an incident with his stepdaughter. 295 F.3d at 1062. Later,
this court decided State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), which held
that the
more specific crime of aggravated incest was applicable where the victim and perpetrator were
related. The statutory penalty for indecent liberties with a child was greater than that for
aggravated incest. Thus, what Reed sought in his collateral challenge was a reduction of his
sentence.
Judge Briscoe, writing for the 10th Circuit Court of Appeals, contrasted the effect of
Williams in Carmichael and LaBona:
"In Carmichael v. State, 255 Kan. 10, 872 P.2d 240, 247 (1994), the court
held that the rule announced in
Williams was not jurisdictional, and the proper post-conviction remedy for a
defendant challenging a rape
conviction, where the defendant was related to the victim, was to vacate the sentence for the
crime of rape
and remand for resentencing for the crime of aggravated incest. In contrast, in LaBona v.
State, 255 Kan.
66, 872 P.2d 271, 273 (1994), the court held that a defendant who voluntarily pled guilty to the
crime of
indecent liberties with a child waived the right to challenge that conviction by asserting he could
only be
charged with aggravated incest. Reiterating that its ruling in Williams was not
jurisdictional or
constitutional in nature, the court held that a defendant who pled guilty acquiesced in his
conviction for
indecent liberties and would not be resentenced under the penalty provisions applicable to
aggravated
incest. Id. at 272-74." 295 F.3d at 1063.
The 10th Circuit noted that, based on Williams and Carmichael, Reed
sought collateral review of
his sentence in the trial court. "The state trial court held, and the Kansas Court of Appeals
affirmed, that petitioner had waived any challenge to his sentence when he pled guilty to the crime
of indecent liberties with a child." 295 F.3d at 1063. The 10th Circuit noted that the state court
decision
"is not contrary to clearly established federal law as the United States Supreme Court has
approved similar
holdings on many occasions. See, e.g., United States v. Broce, 488 U.S. 563, 570-74,
109 S. Ct. 757, 102
L. Ed. 2d 927 (1989) (holding habeas petitioners waived double jeopardy challenge by pleading
guilty to
separate charges, despite later court ruling that such charges would have been impermissible);
Tollett v.
Henderson, 411 U.S. 258, 265-67, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973) (holding guilty
plea waived all
challenges to deprivations of constitutional right that antedated plea such as infirmities in the
composition
of the grand jury)." 295 F.3d at 1063-64.
With regard to Reed's additional arguments, Judge Briscoe wrote:
"'[A] voluntary and intelligent plea of guilty made by an accused person, who has
been advised
by competent counsel, may not be collaterally attacked.' Broce, 488 U.S. at 574, 109
S. Ct. 757 (quotation
omitted). At the time petitioner was charged, it was legally permissible to charge petitioner with
indecent
liberties rather than aggravated incest, see State v. Hutchcraft, 242 Kan. 55, 744 P.2d
849 (1987),
overruled in relevant part by Williams, 829 P.2d at 897, and thus petitioner's plea was
not an unlawful
plea. See Broce, 488 U.S. at 572-73, 109 S. Ct. 757 (noting that absent impermissible state conduct, 'a
voluntary plea of guilty intelligently made in the light of the then applicable law does not become
vulnerable because later judicial decisions indicate that the plea rested on a faulty premise,' and
holding
that a petitioner need not know of the potential defense to waive it) (quotation omitted). For the
same
reason, petitioner's attorney was not ineffective for failing to predict a judicial ruling that would
not be
announced until 1992, and further, this later judicial ruling did not render petitioner's prior plea
unknowing and involuntary. See Baker v. State, 20 Kan. App. 2d 807, 894 P.2d 221,
223-24 (1995).
"Moreover, the fact that a petitioner who has pled guilty is treated differently than
a petitioner
who was tried and convicted by a jury does not violate equal protection because the petitioners
are not
similarly situated. See Stephens v. Thomas, 19 F.3d 498, 501 (10th Cir. 1994) ("If
the groups are not
similarly situated, there is no equal protection violation.") (quoting United States v.
Woods, 888 F.2d 653,
656 (10th Cir. 1989)). Unlike an accused who elects to go to trial, a defendant who pleads guilty
admits
violating the statute charged and thereby waives his potential defenses. See Broce,
488 U.S. at 569, 109 S.
Ct. 757." 295 F.3d at 1064.
Although Reed is an instructive review of Kansas law on collateral challenges, it
does not favor
Bryant's view that he is a candidate for post-conviction relief.
McAdam can be distinguished from Williams because
McAdam did not establish a "new
rule of law" but rather applied principles enunciated in Nunn and
Clements to existing statutes.
Barnes, 278 Kan. at 127. Because McAdam merely clarified existing law
rather than establishing
new law, i.e., the McAdam "rule" was the correct interpretation of
Kansas law at the time Bryant's
conviction and sentence became final.
In addition, in Fiore v. White, 531 U.S. 225, 148 L. Ed. 2d 629, 121 S. Ct.
712 (2001), a
habeas corpus action, the United States Supreme Court considered whether Fiore's Pennsylvania
jury conviction for operating a hazardous waste facility without a permit was inconsistent with the
Federal Due Process Clause. Fiore had a permit but had been prosecuted on the theory that he
"had deviated so dramatically from the permit's terms that he nonetheless had violated the
statute." 531 U.S. at 227. After Fiore's conviction became final, the Pennsylvania Supreme Court
in Commonwealth v. Scarpone, 535 Pa. 273, 634 A.2d 1109 (1993), considered the
statute and
concluded that a person who deviated from his or her permit's terms was not a person without a
permit within the meaning of the statute. 531 U.S. at 227. In response to a certified question, the
Pennsylvania Supreme Court stated that Scarpone merely clarified existing law and
did not
announce a new rule of law. 531 U.S. at 228. The United States Supreme Court stated:
"The Pennsylvania Supreme Court's reply specifies that the interpretation of
§ 6018.401(a) set
out in Scarpone 'merely clarified' the statute and was the law of
Pennsylvania–as properly interpreted–at
the time of Fiore's conviction. Because Scarpone was not new law, this case presents
no issue of
retroactivity. Rather, the question is simply whether Pennsylvania can, consistently with the
Federal Due
Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does
not
prohibit.
"This Court's precedents make clear that Fiore's conviction
and continued incarceration on this
charge violate due process. We have held that the Due Process Clause of the Fourteenth Amendment
forbids a State to convict a person of a crime without proving the
elements of that crime beyond a
reasonable doubt. See Jackson, 443 U.S., at 316; In re Winship, 397 U.S.
358, 364[, 90 S. Ct. 1068, 25 L.
Ed. 2d 368] (1970). In this case, failure to possess a permit is a basic element of the crime of
which Fiore
was convicted. Scarpone, supra, at 279, 634 A.2d, at 1112. And the
parties agree that the Commonwealth
presented no evidence whatsoever to prove that basic element. To the contrary, the
Commonwealth,
conceding that Fiore did possess a permit, . . . necessarily concedes that it did not prove he failed
to
possess one.
"The simple, inevitable conclusion is that Fiore's conviction fails to satisfy the
Federal
Constitution's demands." 531 U.S. at 228-29.
Paraphrasing Fiore in the circumstances of the present case, we would say
that McAdam
merely clarified the law and was the law of Kansas–as properly interpreted–at the
time of Bryant's
conviction and sentencing. Because McAdam was not new law, but merely a
clarification of the
existing law, this case presents no issue of retroactivity. Rather, when applying Fiore,
the
question is simply whether Kansas can sentence Bryant inconsistently with its own law without
violating the federal Constitution.
Pennsylvania had convicted Fiore of a crime without proving all the elements of it, which
the Due Process Clause of the Fourteenth Amendment forbids a State to do. The circumstances
are quite different in the present case. Here there is no claim that the State convicted Bryant of a
crime without proving all the elements. Instead, Bryant claims that he is entitled to a lesser
sentence because the offense he pled guilty to and a second offense having a lesser penalty had
identical elements.
Bryant has no right under either the Equal Protection or the Due Process Clause of the
Fourteenth Amendment to the lesser sentence when the crime of conviction and another crime
have the same elements. In support of our decision, we note that in United States v.
Batchelder,
442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979), Batchelder was convicted of violation of
one of two federal statutes that prohibit a convicted felon from receiving a firearm that has
traveled in interstate commerce. Batchelder was convicted and sentenced under the statute
carrying the greater penalty. The question before the United States Supreme Court was "whether
a defendant convicted of the offense carrying the greater penalty may be sentenced only under the
more lenient provision when his conduct violates both statutes." 442 U.S. at 116. The Supreme
Court concluded that a criminal defendant has no federal constitutional right to be sentenced
under the more lenient provision. 442 U.S. at 125.
Likewise, there are no state constitutional constraints noted in McAdam or
the cases on
which McAdam is based, State v. Clements, 241 Kan. 77, 83, 734 P.2d
1096 (1987), and State v.
Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989). The basis for the decisions in
Clements and Nunn
was that the determination of "which penalty to seek cannot be a matter of prosecutorial whimsy
in charging." 241 Kan. at 83. Clements and Nunn were direct appeals;
nothing in those decisions
requires application of the rule to cases on collateral review.
Many distinctions are drawn by the courts in determining the justiciability of
post-conviction challenges. For example, guilty pleas are distinguished from convictions following
trial,
new law is distinguished from mere clarification, and constitutional requirement is distinguished
from a rule otherwise imposed. The distinction urged by Bryant between a collateral challenge on
a conviction and one on a sentence, however, is not manifest in the authorities he cites.
Bryant's final argument is that, if his collateral attack on his sentence is unsuccessful
because he pled guilty and did not prosecute a direct appeal, he will seek to perfect a direct appeal
out of time. He predicts that his appeal will be allowed pursuant to State v. Ortiz, 230
Kan. 733,
640 P.2d 1255 (1982), and State v. Willingham, 266 Kan. 98, 101, 967 P.2d 1079
(1998),
because he will be able to show that he was not informed of his right to appeal. Once his appeal is
pending, he will be entitled to seek relief he claims is available pursuant to Barnes.
The possibility
that there is that an alternative means to the end Bryant seeks does not strengthen his principal
argument in this appeal.
The Court of Appeals and district court are affirmed.
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