Opinion
No. 106,656.
2014-11-14
STATE of Kansas, Appellee, v. Michael T. KEELER, Appellant.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.Ryan Eddinger, of Kansas Appellate Defender Office, for appellant.Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
The Kansas Supreme Court remanded this case for reconsideration of our previously issued opinion in light of its recent decision in State v. Reese, 300 Kan. ––––, 333 P.3d 149 (2014). Thus, we begin our analysis with a brief review of the facts and holding in that decision.
Christian Reese committed his fifth lifetime DUI on July 3, 2009. He ultimately was convicted on June 6, 2011. At the time he committed this crime, the Kansas driving under the influence (DUI) statute contained a lifetime “look-back” provision; that is, any conviction occurring during a person's lifetime was taken into account when calculating sentence enhancements to be imposed for a second, third, fourth, or subsequent offender. K.S.A.2009 Supp. 8–1567(o)(3). But effective July 1, 2011, the legislature amended the “look-back” period to provide that “only convictions occurring on or after July 1, 2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” (Emphasis added.) K.S.A.2011 Supp. 8–1567(j)(3).
Reese was sentenced in August 2011 after the provision providing for a limited look-back period became effective. At sentencing, Reese argued the newly enacted limited look-back provision should be applied to him and, because each of his four prior DUI convictions occurred before July 1, 2001, he should be sentenced as a first-time offender. The district court was not persuaded by the argument, holding the limited lookback provision was inapplicable to an offense committed before its effective date. A panel of this court affirmed. But the Supreme Court reversed, holding that “the provisions of K.S.A.2011 Supp. 8–1567(j)(3) apply to all persons who are sentenced for DUI on or after the July 1, 2011, effective date of the amended statute.” Reese, 300 Kan. ––––, Syl.
In this case, Michael T. Keeler was arrested on June 12, 2010, for operating a motor vehicle while under the influence of alcohol. Prior to this arrest, Keeler had been convicted of DUI four times, once in 1994 and three times in 1996. Keeler was convicted of this fifth lifetime DUI on July 7, 2011, and sentenced on August 12, 2011. At the sentencing hearing, Keeler stipulated to the fact that the conviction was his fifth lifetime DUI. Although Keeler's counsel advised the court that he did not believe the newly enacted limited look-back provision of K.S.A.2011 Supp. 8–1567(j)(3) was applicable given the amendment became effective after the date that Keeler committed the offense, counsel urged the district court for leniency in sentencing given the legislative intent underlying the newly enacted legislation. Relying on the fact that this was “Keeler's fifth lifetime DUI conviction,” the district court sentenced Keeler to 270 days in prison, a $2,500 fine, and a 12–month postrelease supervision term.
Although Keeler appealed his sentence, he did not do so on grounds that the district court erred in failing to calculate his sentence using the new limited look-back provision of K.S.A.2011 Supp. 8–1567(j)(3). The original opinion by this court affirming his sentence was filed on April 19, 2013. State v. Keeler, No. 106,656, 2013 WL 1729329 (Kan.App.2013) (unpublished opinion). Thereafter, Keeler filed a motion for rehearing under Supreme Court Rule 7.05 (2013 Kan. Ct. R. Annot. 66), seeking to file a supplemental brief for purposes of arguing that the 2011 amendment to the DUI lookback provision was applicable to calculation of his sentence. We granted Keeler's motion and set a new briefing schedule.
In a second opinion filed on August 30, 2013, we again affirmed Keeler's sentence. State v. Keeler, No. 106,656, 2013 WL 4729253 (Kan.App.2013) (unpublished opinion). Specifically, we held Keeler was precluded under the invited error doctrine from raising the issue of retroactivity on appeal because his attorney conceded at sentencing that the 2011 amendment to the DUI look-back provision did not apply in this case. We also held that, even if the invited error doctrine did not preclude Keeler's appeal, the amendment in K.S.A.2011 Supp. 8–1567(j)(3) did not apply retroactively, and Keeler was not entitled to be sentenced under the amended statute.
Keeler filed a petition for review with the Kansas Supreme Court. On August 29, 2014, almost a year after we filed our second opinion in this case, the Supreme Court issued its decision in Reese, granted Keeler's petition for review, and remanded his case to this court for reconsideration in light of that decision.
Analysis
Invited error
As a preliminary matter, we conclude that the invited error doctrine does not preclude Keeler from raising the retroactivity issue on appeal. As a general rule, a defendant may not request correction of an allegedly illegal sentence when that defendant invited the error. State v. McBride, 23 Kan.App.2d 302, 304, 930 P.2d 618 (1996). Nevertheless, because K.S.A.2013 Supp. 21–6820(e)(2) grants appellate jurisdiction to consider whether the sentencing court erred in including or excluding a prior conviction in the calculation of a criminal history score for purposes of sentencing enhancements, there is caselaw precedent for granting appellate review despite a stipulation or lack of objection by the defendant in limited circumstances. See State v. Vandervort, 276 Kan. 164, 177, 72 P.3d 925 (2003).
Additionally, in State v. Donaldson, 35 Kan.App.2d 540, 544, 133 P.3d 154 (2006), a panel of our court recognized another exception when it found that “no party can properly stipulate to an incorrect application of the law.” Thus, the panel concluded that when a defendant fails to object to his or her criminal history score, the invited error doctrine only precludes him or her from “challenging the factual basis for the criminal history classification applied in th[at] case.” (Emphasis added.) 35 Kan.App.2d at 544, 133 P.3d 154. The argument submitted by Keeler in his supplemental briefing only addresses an incorrect application of law; thus, he is not attempting to challenge the factual basis of his prior DUI convictions. Accordingly, we hold the invited error doctrine does not preclude Keeler from raising the retroactivity issue on appeal. Retroactivity of the limited look-back provision
Based on the substantive holding in Reese, we also find the newly enacted limited look-back provision of K.S.A.2011 Supp. 8–1567(j)(3) applies to Keeler because he was sentenced for DUI on or after July 1, 2011, the effective date of the amended statute. For this reason, we vacate Keeler's sentence and remand for resentencing consistent with the holding in Reese, 300 Kan. ––––, Syl. Specifically, the district court is directed to calculate Keeler's sentence without considering any of his four prior DUI offenses—all of which took place before 2001.
Reversed and remanded with directions.