Opinion
No. 107,406.
2013-04-5
STATE of Kansas, Appellee, v. Mark PROSPER, Appellant.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Lesley A, Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Lesley A, 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.
Mark Prosper pled guilty to three offenses: DUI (as a third-time offense), driving while a habitual violator, and possession of cocaine. He was then convicted and sentenced to a total of 28 months. Prosper now appeals, arguing that the district court erred in:
• failing to apply the 2011 amendments to the Kansas DUI statute retroactively, which would have meant his 1987 DUI conviction wouldn't be considered and he would have been sentenced for a second-time DUI, not a third;
• classifying Prosper's 1987 attempted-burglary conviction as a person felony, which led to a greater sentence under the sentencing guidelines; and
• using Prosper's criminal history to calculate his sentence (which also led to a greater sentence under the guidelines).
But we find no error here. Defendants are normally sentenced based on the law in effect at the time the crime is committed—not based on changes made later—and the legislature gave no indication that the amendments to K.S.A. 8–1567 should be applied when sentencing for crimes already committed before the amendment. As to the classification of Prosper's 1987 offense, he didn't object to the reporting of his criminal history at sentencing, and that effectively prevents him from challenging the classification of his attempted-burglary conviction on appeal. Finally, the Kansas Supreme Court has deemed it constitutional to use a defendant's criminal history to calculate his or her sentence. We therefore affirm the district court's judgment.
Factual and Procedural Background
Mark Prosper pled guilty to a DUI offense and to driving while a habitual violator for conduct that occurred on November 20, 2010. In the complaint, the State listed two prior DUI convictions—from May 13, 1987, and October 22, 2010. In a separate case, Prosper also pled guilty to possession of cocaine.
The presentence investigation reports disclosed that in 1987, Prosper was convicted of attempted burglary under K.S.A. 21–3301 and K.S.A. 21–3715, which the reports classified as a person felony for criminal-history purposes. The reports referenced a prior presentence investigation as the source for this prior conviction. The reports also confirmed the two prior DUI convictions charged in the complaint. Prosper's criminal history was scored as a C; our state's sentencing guidelines have criminal-history scores ranging from I (the least serious) to A (the most serious).
For each offense covered in the sentencing guidelines, the guidelines recommend longer sentences for offenders with more serious criminal-history scores. In Prosper's case, only one of the offenses for which he was convicted—possession of cocaine—had a guideline sentence. For the other two offenses, a statute set out a range of potential jail sentences the court could enter. Prosper did not object to the presentence-investigation report recounting his past convictions; both Prosper and his counsel agreed that the report accurately reflected Prosper's criminal history.
On December 15, 2011, Prosper was sentenced to 12 months in jail with a $1,500 fine for third-time DUI; he was sentenced to 12 months in jail for driving while a habitual violator. The court made those sentences concurrent with one another. For possession of cocaine, Prosper was sentenced to 28 months in prison; the court also made that sentence concurrent with the other sentences. The net result was a controlling 28–month prison sentence.
Prosper has appealed to this court.
Analysis
I. The District Court Did Not Err in Failing to Retroactively Apply K.S.A.2011 Supp. 8–1567.
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 Prosper'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 Prosper is important because his 1987 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.
Prosper 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 Prosper. 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.
Prosper cites Dorsey v. United States, 567 U.S. ––––, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), in support of his position that the amendments should be applied retroactively. In Dorsey, the U.S. Supreme Court held that the more lenient penalties of the Fair Sentencing Act applied to those offenders who committed an offense before the Act's effective date but were sentenced after the effective date. 132 S.Ct. at 2326 (analyzing federal sentencing statute that reduced penalties for crimes related to crack cocaine). The Court came to this conclusion despite the absence of express congressional intent, finding that there was a “ ‘fair implication’ “ of its intent based on an analysis of several factors. 132 S.Ct. at 2335.
But there's a significant difference between the federal Sentencing Reform Act and Kansas law. As the Dorsey Court noted, the federal Sentencing Reform Act expressly states that sentencing guidelines “ ‘in effect on the date the defendant is sentenced’ “ control regardless of when the offense occurs. 132 S.Ct. at 2331 (quoting 18 U.S.C. § 3553[a][4][A][ii] ). And there was a specific finding in the Fair Sentencing Act that previous sentences for crimes related to crack cocaine were “unfairly long” compared to sentences for crimes related to powder cocaine. Dorsey, 132 S.Ct. at 2333. These two factors contributed to the Court's conclusion that there was a “ ‘fair implication’ “ of congressional intent for lower mandatory minimums to apply to post-Act sentencing of pre-Act offenders. 132 S.Ct. at 2332–35.
The Kansas Legislature didn't include any similar provisions in our DUI statutes, and a panel of this court recently held that Dorsey was inapplicable to an argument nearly identical to Prosper's:
“First, the [Fair Sentencing Act] is very specific legislation and not an across the board change in the jurisprudence of the retroactive or prospective application of new legislation depending on whether the legislation is procedural or substantive. Second, we are not dealing with a disparate sentencing scheme between two different forms of cocaine. Third, there are provisions in the changes to the DUI laws that were expressly made retroactive—the calculation of prior[ ] DUI convictions was not one of them. Dorsey is not applicable to the instant case.” Ulrich, 2012 WL 5869662, at *9.
Once again, we agree.
The Reese and Ulrich courts' reasoning is sound and persuasive. Prosper does not present any persuasive new arguments that were not addressed in Reese, Ulrich, and other cases examining retroactivity of an amended statute. The amendments to K.S.A. 8–1567 do not apply retroactively, and Prosper was not entitled to be sentenced under the amended statute.
II. Prosper Cannot Challenge His Criminal History for the First Time on Appeal.
Prosper argues for the first time on appeal that the district court erred in classifying his 1987 attempted-burglary conviction as a person felony, resulting in a criminal history score of C. Prosper contends that the prior conviction should have been treated as a nonperson felony, lowering his criminal-history score to E. Additionally, because K.S.A.2011 Supp. 21–6811(d) (formerly codified as K.S.A. 21–4711[d] ) allows a judge to classify a burglary conviction as a person or nonperson felony based on a preponderance of the evidence, Prosper insists that the statute is unconstitutional. Specifically, Prosper claims a violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the element of whether Prosper attempted to burglarize a dwelling was never decided by a jury.
Had Prosper claimed in the district court that the burglary conviction should have been treated as a nonperson felony, there would have been a factual matter to have been determined by the district court based on evidence presented to it. That's because the sentencing statutes in effect when Prosper committed the current offense provide that a past burglary conviction be scored for criminal-history purposes “(1) [a]s a prior person felony if the the prior conviction ... was classified as a burglary [of a dwelling]” and “(2) [a]s a prior nonperson felony if the prior conviction ... was classified as a burglary [of a nondwelling].” K.S.A.2011 Supp. 21–6811(d). But the 1987 burglary statute didn't distinguish between dwellings and nondwellings. K.S.A. 21–3715 (Ensley 1981). The facts required to classify prior burglary convictions “shall be established by the state by a preponderance of the evidence.” (Emphasis added.) K.S.A.2011 Supp. 21–6811(d).
Thus, had Prosper challenged the classification of his 1987 conviction as a person felony, the State would have had to establish by evidence that it was the burglary of a dwelling, thus making it a person felony. See State v. Berwert, No. 100,226, 2009 WL 2436681, at *6 (Kan.App.2009) (unpublished opinion) (holding that when a prior burglary conviction is based on a plea, the court may look to terms of the plea agreement and charging document, or to the statements made in any plea colloquy with the defendant, to determine whether it was a dwelling burglary and thus a person felony for criminal-history purposes), rev. denied 290 Kan. 1096 (2010).
To challenge the criminal-history worksheet, a defendant must provide written notice specifying “the exact nature of the alleged error.” K.S.A.2012 Supp. 21–6814(a) and (c). But Prosper made no objection to his criminal-history score, so the State's duty to present evidence wasn't triggered. This is not a case in which this failure may be overlooked, like State v. Vandervort, 276 Kan. 164, 177, 72 P.3d 925 (2003) (considering issue on appeal where the presentence-investigation report wasn't provided until the sentencing hearing and the defendant didn't personally confirm his lack of objection during court hearing), since Prosper personally said he had no objection to the report and hasn't suggested a lack of time to review it beforehand. Accordingly, the only evidence in our record is the presentence report, which shows this as a person felony.
We note too that issues not raised before the district court generally cannot be raised for the first time on appeal. State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). Although there are limited exceptions to this rule, Prosper does not argue their application in this case. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010); Vandervort, 276 Kan. 174–76.
Prosper's constitutional challenge under Apprendi has been rejected by other panels of this court. In State v. May, 39 Kan.App.2d 990, 996–97, 186 P.3d 847,rev. denied 287 Kan. 768 (2008), our court addressed whether two 1980 burglaries should be scored as person felonies. We rejected May's argument that K.S.A. 21–4711(d) was unconstitutional under Apprendi because by pleading guilty to the two prior burglaries, “May admitted all well-pled facts alleged in the charging documents,” eliminating the need for the jury to make this determination. May, 39 Kan.App.2d at 996–97. The facts of the charging documents that May pled guilty to clearly indicated that the burglaries were of dwellings. 39 Kan.App.2d at 996–97. The court also noted that “whether May's prior burglaries were of a dwelling is a sentencing factor and not an element of the present crime so as to invoke the provisions of Apprendi.” May, 39 Kan.App.2d at 997 (citing State v. Ivory, 273 Kan. 44, 41 P.3d 781 [2002] ). Compare State v. Roose, 41 Kan.App.2d 435, 441, 203 P.3d 18 (2009) (noting that proof beyond a reasonable doubt is required when a prior person felony is an element of the current crime, unlike when it is merely used to determine a criminal-history score).
Similarly, in State v. Sloan, No. 105,145, 2012 WL 308537, at *3–4 (Kan.App.2012) (unpublished opinion), rev. denied ––– Kan. –––– (February 4, 2013), our court relied on May to reject the same constitutional argument against K.S.A. 21–4711(d). The panel adopted May's reasoning and held that by stipulating to the well-pled facts of the complaint, Sloan admitted sufficient facts to determine that his prior burglaries were of dwellings, making them person felonies for criminal-history purposes. Sloan, 2012 WL 308537, at *3–4. See Berwert, 2009 WL 2436681, at *6 (“We hold the facts necessary to support classification of a defendant's prior burglary conviction under K.S.A. 21–4711[d][1] need not be proven to a jury beyond a reasonable doubt.”).
We find the May and Sloan decisions persuasive here. Prosper said he had no objection to the presentence-investigation report, and whether Prosper's prior attempted burglary was of a dwelling was a sentencing factor rather than an element of the crime. Accordingly, the provisions of Apprendi are not invoked and the facts need not be submitted to a jury and proved beyond a reasonable doubt. See May, 39 Kan.App.2d at 997;Sloan, 2012 WL 308537, at *4. The district court determined by a preponderance of the evidence that Prosper's prior attempted burglary conviction should be scored as a person felony. Prosper's failure to object to his criminal history precludes him from challenging this classification on appeal.
III. The District Court Did Not Err When It Used Prosper's Criminal History to Calculate His Sentence Because the Kansas Supreme Court Has Deemed Such a Practice Constitutional.
Finally, Prosper argues that any use of his prior criminal history to increase the penalty for his crime—without proving the existence of his past convictions to a jury—violates his rights under Apprendi, 530 U.S. 466. The Kansas Supreme Court expressly rejected this argument in Ivory, 273 Kan. at 46–47, and the Ivory ruling has been reaffirmed in later cases. See, e.g., State v. Snellings, 294 Kan. 149, 167, 273 P.3d 739 (2012). Prosper is not entitled to relief on this issue.
We therefore affirm the district court's judgment.