Did the District Court Err in Sentencing Denny for a Severity Level 1 Felony?
Denny next argues he was entitled to be sentenced for a severity level 4 felony because the use of drug manufacturing paraphernalia with the intent to manufacture a controlled substance (a level 4 felony) is identical to the crime of conspiracy to manufacture methamphetamine (a level 1 felony). Where two statutes with differing penalties proscribe identical conduct, a criminal defendant may be sentenced only to the lesser of the two penalties. State v. McAdam, 277 Kan. 136, Syl. ΒΆ 3, 83 P.3d 161 (2004). We addressed this precise question in State v. Miles, 35 Kan. App. 2d 211, 130 P.3d 1198 (2005), rev. denied 280 Kan. 988 (2006). In State v. Fanning, 281 Kan. 1176, 1183, 135 P.3d 1067 (2006), our Supreme Court cited with apparent approval the Miles result, that the elements of conspiracy to manufacture methamphetamine under K.S.A. 65-4159(a) were not identical to the elements of possession of drug paraphernalia under K.S.A. 65-4152. We do not perceive that there is any reason to depar
