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STATE v. DOILE3/3/1989
no allegation of any drug-related activity at the residence except for the sales almost five years earlier. There was nothing about the items seized from the vehicle or person from which one could conclude they were part of a stash at the residence. The judge must have concluded that finding the small amount of drugs on the defendant's person and in his auto was probable cause to search his residence simply because of the old conviction. This is an "improper analysis of the totality of the circumstances" within the purview of Leon, and we, as a reviewing court, need not defer to the issuing judge's determination. We should, perhaps, note that the judge issuing the warrant was the same judge who denied the suppression motion, so this is the first "outside" review of the matter.
We conclude that, under the totality of the circumstances, the trial court erred in refusing to suppress the cocaine seized at the residence. The defendant's conviction for possession of cocaine in case No. 87-CR-194 must be reversed.
For his final issue, defendant contends the trial court erred in denying his motion to modify the sentences imposed herein. The controlling term is 10 to 30 years. The reversal of the cocaine conviction in case No. 87-CR-194 does not reduce the figure, as like terms were imposed on both cocaine convictions and all sentences were run concurrently.
The sentences imposed were within the statutory limits for the offenses. Defendant does not contend the trial court failed to consider and apply the sentencing criteria set forth in K.S.A. 21-4606. Defendant argues that his prior criminal record and his current convictions were such that a lesser sentence was warranted.
The penalty for a second conviction of possession of cocaine under K.S.A. 1988 Supp. 65-4127a is that of a class B felony — a minimum of 5 to 15 years and a maximum of 20 years to life. Defendant received a sentence of 10 to 30 years. A sentence imposed by a trial court will not be disturbed on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression,
or corrupt motive. State v. McGlothlin, 242 Kan. 437, 438, 747 P.2d 1335 (1988); State v. Jennings, 240 Kan. 377, Syl. 2, 729 P.2d 454 (1986); State v. Van Cleave, 239 Kan. 117, Syl. 5, 716 P.2d 580 (1986). There is no allegation of partiality, prejudice, oppression, or corrupt motive. We find no abuse of discretion in the sentences imposed.
The convictions in case No. 87-CR-60 are affirmed. The conviction in case No. 87-CR-194 is reversed.
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