Opinion
No. 107,523.
2013-04-5
STATE of Kansas, Appellee, v. Cristie L. MURPHY, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller and J. Patrick Walters, Judges. Stephen T. Ariagno, of Ariagno, Kerns, Mank & White, L.L.C., of Wichita, and Kristen B. Patty, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller and J. Patrick Walters, Judges.
Stephen T. Ariagno, of Ariagno, Kerns, Mank & White, L.L.C., of Wichita, and Kristen B. Patty, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Cristie Murphy appeals from her convictions for a third DUI, driving in violation of restrictions, and various traffic infractions. She argues that the district court erred in failing to retroactively apply the 2011 amendments to the Kansas DUI statute, K .S.A. 8–1567, which would have prevented the court from factoring in one of her two prior DUI convictions during sentencing. But two long-held legal rules in Kansas stand in the way. First, defendants are sentenced based upon the law in effect when the crime was committed. Second, new statutes are applied only prospectively (to future events) unless the statute clearly provides otherwise.
Here, the district court applied the sentencing statute in effect when Murphy committed her offense, and the legislature gave us no indication in the statute that it should be applied when sentencing for crimes committed before the new statute's effective date. We therefore find no error and affirm the district court's judgment.
Factual and Procedural Background
Murphy was charged with a third DUI, driving in violation of restrictions, and various traffic infractions for conduct that occurred on October 5, 2010. The complaint alleged that Murphy had two prior DUI convictions—from September 13, 2000, and November 13, 2009.
Murphy filed a motion to prohibit the use of any pre–2001 DUI conviction to increase her sentence under the current DUI charge. Murphy maintained that the 2011 amendments to the Kansas DUI statute—effective July 1, 2011—should apply retroactively to her 2010 offense. The district court denied the motion, refusing to apply the 2011 amendments retroactively.
Murphy stipulated that the facts of the case outlined in the probable-cause affidavit were true and that the prior convictions in the affidavit were valid. After a bench trial on these stipulated facts, Murphy was convicted on all charges.
At sentencing on November 30, 2011, Murphy again objected to the inclusion of her pre–2001 DUI conviction. Over Murphy's objections, the court sentenced her as a third-time DUI offender, imposing an underlying sentence of 1 year in jail with probation granted after 90 days and assessing a $1,500 fine.
Murphy has appealed to this court. She once again argues that the 2011 amendments to K.S.A. 8–1567 must apply retroactively.
Analysis
Under the 2011 amendments to the Kansas DUI statute, to determine whether a conviction is a first, second, third, fourth, or subsequent conviction, “only convictions occurring on or after July 1, 2001, shall be taken into account.” K.S.A.2011 Supp. 8–1567(j)(3). In contrast, at the time of Murphy's offense, the statute provided that “any [DUI] convictions occurring during a person's lifetime shall be taken into account when determining the sentence to be imposed.” (Emphasis added.) K.S.A.2010 Supp. 8–1567(o)(3). Determining whether the 2011 amendment should be applied when sentencing for a DUI offense that occurred in 2011 is a matter of statutory interpretation, a legal question that we determine independently, without any required deference to the district court. State v. Mason, 294 Kan. 675, 676, 279 P.3d 707 (2012).
Whether to apply the 2011 amendment when sentencing Murphy is important because her 2000 DUI offense would no longer be considered. That would make the 2010 offense a second-offense DUI, which is a misdemeanor, rather than a third-offense DUI, which is a felony. See K.S.A.2010 Supp. 8–1567(f)(1); K.S.A.2011 Supp. 8–1567(b)(1)(B). The penalties for the second-offense, misdemeanor DUI are—not surprisingly—less than those for the third-offense, felony DUI.
But the general rule in Kansas is that a defendant is sentenced based on the law in effect when the crime was committed. State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010); State v. Walker, 277 Kan. 849, 850, 89 P.3d 920 (2004). As a policy matter, “having the penalty parameters for an offense ‘fixed as of the date of the commission of the offense is fair, logical, and easy to apply.’ “ Williams, 291 Kan. at 560 (quoting State v. Vandervort, 276 Kan. 164, 180, 72 P.3d 925 [2003] ). In addition, a statute generally operates prospectively (applying only to future events) unless the language of the statute clearly makes the statute retroactive. The only exception to this rule is if the statutory change is procedural or remedial in nature and does not prejudicially affect the parties' substantive rights. Williams, 291 Kan. at 557.
Murphy argues that the 2011 amendment regarding which past DUI offenses would count should be considered procedural and remedial. But a panel of this court rejected arguments nearly identical to those raised by Murphy. See State v. Reese, 48 Kan.App.2d 87, 91, 283 P.3d 233 (2012), petition for rev. filed September 4, 2012. The Reese decision thoroughly considered retroactive application of the amendment and rejected retroactivity as inconsistent with settled Kansas authority considering changes in sentencing statutes. 48 Kan.App.2d at 88–91. Several panels of this court have since agreed with the Reese analysis. See 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; State v. Loredo, No. 108,073, 2012 WL 5205761, at *1 (Kan.App.2012) (unpublished opinion); State v. Eberlein, No. 107,050, 2012 WL 5205609, at *1 (Kan.App.2012) (unpublished opinion), petition for rev. filed November 16, 2012; State v. Stuart, No. 106,963, 2012 WL 4795599, at *7 (Kan, App.2012) (unpublished opinion), petition for rev. filed November 1, 2012; State v. Schmidt, No. 107,581, 2012 WL 4121132, at *1 (Kan.App.2012) (unpublished opinion); see also State v. Thacker, No. 107,464, 2012 WL 3136812, at *1–2 (Kan.App.2012) (unpublished opinion), petition for rev. filed August 22, 2012 (decided before Reese; refusing to apply 2011 amendments retroactively). So do we.
In Reese, this court agreed with the district court's finding that the amendment to the “look-back” statute was a substantive change in the law that should not be applied retroactively. 48 Kan.App.2d at 90–91. The Reese court concluded it should apply the Kansas Supreme Court's finding from Williams, 291 Kan. at 557, that a statutory amendment modifying the severity of punishment for a conviction affects the defendant's substantive rights, and therefore only operates prospectively. Reese, 48 Kan.App.2d at 90.
Furthermore, the Reese court rejected an argument that under the plain language of the statute, the date of sentencing should be used to determine which version of the statute to apply. 48 Kan.App.2d at 89–90. The Reese court based its decision on the fact that the legislature explicitly provided for retroactive application of some provisions within the act in which this amendment to the “look-back” statute was included, so the legislature's failure to explicitly provide for retroactive application for K.S.A.2011 Supp. 8–1567(j)(3) meant it intended the “look-back” change to be applied prospectively only. Reese, 48 Kan.App.2d at 90–91.
Finally, the Reese court rejected an argument that the statute should be retroactively applied simply because the defendant should receive the benefit of a sentencing amendment that would lessen his sentence. 48 Kan.App.2d at 91. The court rejected this argument because the Kansas Supreme Court has not recognized a rule that would apply a statute retroactively for this reason. 48 Kan.App.2d at 91; see Ulrich, 2012 WL 5869662, at *9.
The district court properly applied the sentencing statutes in effect at the time Murphy committed her offenses. We therefore affirm the district court's judgment.