Opinion
No. 108,510.
2013-10-4
STATE of Kansas, Appellee, v. John T. BAKER, Appellant.
Appeal from Sedgwick District Court; Phillip B. Journey, Judge. Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Phillip B. Journey, Judge.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
John T. Baker appeals his conviction and sentence for felony driving under the influence of alcohol (DUI), third offense. We affirm the conviction and sentence.
Baker committed his DUI offense on April 11, 2011. Several months later, on August 12, 2011, the State charged Baker with felony DUI, third offense, under K.S.A.2010 Supp. 8–1567, and also driving on a suspended license. On March 8, 2012, he pled guilty to both charges. The district court sentenced Baker as a third-time DUI offender and imposed a 24–month jail term with a 12–month probation sentence after serving 180 days in jail.
For the first time on appeal, Baker argues he should receive the benefits of the new look-back provision in K.S.A.2011 Supp. 8–1567(j)(3). The act containing that statute became effective July 1, 2011. Under that new provision only DUI convictions occurring on or after July 1, 2001, can be taken into account when determining whether a DUI conviction is a first, second, third, or subsequent conviction. This provision replaced K.S.A.2010 Supp. 8–1567(o)(3), which counted all prior DUI convictions occurring during a person's lifetime in that determination. Baker's prior DUI convictions were in 1998, 1999, and 2002.
Baker advances three arguments. First, he contends the look-back provision in K.S.A.2011 Supp. 8–1567(j)(3) was a mere procedural change—not a substantive one—and therefore should be applied retroactively to his case.
We have has specifically considered and rejected Baker's first retroactivity argument. In State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012), petition for review filed September 4, 2012, a comprehensive opinion that has already been followed by panels of this court in several cases, the court found that the amendment only operated prospectively. Reese had committed his DUI on July 3, 2009. He was convicted June 6, 2011, with sentencing after July 1, 2011. Under the lifetime look-back provisions of the version of K.S.A. 8–1567 in effect when he committed his offense, he faced a sentence for felony DUI, fourth or subsequent. However, all of his prior offense had occurred before July 1, 2001. Not surprisingly, he argued for retroactivity of the 2011 amendment.
Citing State v. Williams, 291 Kan. 554, 557, 244 P.3d 667 (2010), the Reese court reiterated that a statute generally operates prospectively unless the language clearly indicates legislative intent for its retroactive application. Further, it recognized the fundamental rule of criminal procedure in Kansas that a defendant is sentenced under the law in effect when the crime was committed. 48 Kan.App.2d at 89–90.
Applying these basic rules to K.S.A.2011 Supp. 8–1567(j)(3), the Reese court found there was nothing in the statutory language to suggest the legislature intended the provision to apply to all DUI offenders, regardless of the date of the offense, who were sentenced after the effective date of the provision. It also noted that provisions in the same bill (See L.2011, ch. 105, secs. 14, 19) did provide for retroactive application of some other DUI-related provisions, confirming that the legislature well knew how to make this provision retroactive if that was its intent. The Reese court found the new lookback provision did alter substantive rights because it modified the severity of punishment for a DUI conviction. 48 Kan.App.2d at 90. The court concluded the district court did not err in refusing to apply the look-back provision of K.S.A.2011 Supp. 8–1567(j)(3) in Reese's case. It held the amendment can only be applied prospectively to offenses occurring on or after July 1, 2011, the effective date of the act. 48 Kan.App.2d 87, Syl. ¶ 4.
We find Reese to be well-reasoned and persuasive. We apply it to Baker's retroactivity argument and reject that argument. Several panels of this court have since agreed with the Reese analysis, as do we. See, e.g., State v. Hungerford, No. 108,200, 2013 WL 781143 (Kan.App.2013) (unpublished opinion); State v. Florez, No. 107,678, 2013 WL 781133 (Kan.App.2013) (unpublished opinion), petition for rev. filed March 29, 2013; State v. Ulrich, No. 107,785, 2012 WL 5869662, at *1–4 (Kan.App.2012) (unpublished opinion), petition for rev. filed December 17, 2012.
Baker next argues the legislature enacted K.S.A.2011 Supp. 8–1567(j)(3) as a legislative response to State v. Sedillos, 279 Kan. 777, 112 P.3d 854 (2005). He contends this 2011 amendment was intended to legislatively overrule the holding in that case. In 2001, the legislature replaced the 5–year decay provision of K.S.A. 8–1567 with a lifetime look-back provision. Sedillos had two DUI convictions more than 5 years old which, but for the 2001 amendment, would have decayed by the time he committed his felony DUI in October 2002. He claimed that counting DUI convictions that would have been decayed but for the amendment violated his right to due process. The Sedillos court held that the legislature had the power to expand the look-back period without violating the due process rights of Sedillos. 279 Kan. at 786–88.
Baker presents no evidence to show that overruling Sedillos was, indeed, the legislature's intent. Generally, when the legislature acts to legislatively overrule a case holding by passing a new law it is because the court construed prior law differently than the legislature intended or preferred. That did not happen in Sedillos. The court upheld the legislature's action. At any rate, we do not need to examine this unsupported claim of legislative overruling by looking beyond the language of the statute. Under the Reese analysis we have adopted here, K.S.A.2011 Supp. 8–1567(j)(3) is a substantive amendment. Since there is an absence of any indication of legislative intent that the amendment be retroactive, it is only effective prospectively.
Baker also claims the recent case of Dorsey v. United States, 567 U.S. ––––, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), supports his entitlement to retroactivity. Congress enacted the Fair Sentencing Act to reduce sentence lengths for crack cocaine offenses. In Dorsey, a 5–4 decision, the majority held for a limited degree of retroactivity in applying that Act's reduced sentences. The majority looked at six considerations that, when taken together, pointed clearly in the direction of retroactivity. Ultimately the majority held: “For these reasons considered as a whole, we conclude that Congress intended the Fair Sentencing Act's new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is the Act's ‘plain import’ or ‘fair implication.’ “ 132 S.Ct. at 2325. The majority looked for and found congressional intent for an amount of retroactivity. In Kansas, a statute generally operates prospectively unless the language clearly indicates legislative intent for its retroactive application. State v. Jaben, 294 Kan. 607, 612–13, 277 P.3d 417 (2012). As the Reese court noted, the legislature did make parts of the act which contained the amendments to K.S.A. 8–1567 retroactive. It did not do so, clearly or otherwise, for K.S.A.2011 Supp. 8–1567(j)(3). 48 Kan.App.2d at 90.
Finally, Baker argues K.S.A.2011 Supp. 8–1567(j)(3) should be applied retroactively because he should receive the benefit of an ameliorative sentencing amendment. He contends the Kansas Supreme Court and the Kansas Court of Appeals should modify existing rules of statutory construction to hold that the date a defendant is charged by the State would dictate what law to apply. He claims “[t]his would serve the interests of justice by creating uniform sentencing for similarly situated defendants.” Baker does not cite any Kansas caselaw supporting this argument. To the contrary, Kansas appellate courts apply the general rule that a defendant is sentenced based on the law in effect when the crime was committed, even when an amended statute is ameliorative. See, e.g., State v. Roseborough, 263 Kan. 378, 386, 951 P.2d 532 (1997). Neither the State nor a defendant can manipulate a sentencing date to take advantage of a change in the law when the law is fixed on the date of commission of the crime. See State v. Sylva, 248 Kan. 118, 121, 804 P.2d 967 (1991) (“Our rule that the penalty parameters for an offense are fixed as of the date of the commission of the offense is fair, logical, and easy to apply.”).
For all of these reasons, we find K.S.A.2011 Supp. 8–1567(j)(3) operates only prospectively.
Affirmed.