Opinion
No. 108,240.
2013-08-16
STATE of Kansas, Appellee, v. Wade RICHARDS, Appellant.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge. Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Wade Richards pled guilty to a DUI offense that occurred in March 2011. Because he had eight prior DUIs, the district court sentenced him as a felony offender. On appeal, Richards argues that his past offenses—which all occurred before 2001—should have been ignored. He seeks to apply a 2011 amendment to the Kansas DUI law, which counts only prior offenses occurring after July 1, 2001, for sentencing purposes.
But 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 2011 amendment to the “look-back” provision of the Kansas DUI statute should be applied when sentencing for crimes already committed before the amendment. The district court properly sentenced Richards based on the DUI statute that was in place at the time of his offense.
Richards also argues that the district court should have suspended his sentencing and ordered a mental-competency hearing based on some of the comments Richards made that day. But a person is competent if he or she is able to understand the nature and purpose of the proceeding and to assist in his or her defense. Our review of the hearing transcript shows that Richards was able to do both. We therefore affirm the district court's judgment.
Factual and Procedural Background
Richards was charged with a fourth-or-subsequent DUI offense after being involved in a motorcycle accident on March 3, 2011. Richards pled guilty to the charge. The presentence investigation discovered eight prior DUI convictions from 1975 through 1998, making the current crime Richards' ninth lifetime DUI. Richards never objected to or challenged the use of the prior convictions.
At sentencing on May 17, 2012, Richards was asked if he had anything to say on his behalf. Richards informed the court that he had had a brain aneurysm, that his speech was slow, and that he was nervous. Richards then explained that he suffered from posttraumatic stress disorder from his service in Vietnam, that he was an alcoholic, and that he attended substance-abuse groups twice a week. From the transcript, it appears that Richards stammered and failed to finish some sentences while giving this statement. Richards explained that he cannot remember dates and that he “lose[s] words sometimes.” Later, when the judge inquired as to whether there were any victims in the motorcycle accident, Richards interjected: “May I make a joke, sir? I hit a deer.” When explaining the sentence, the judge at one point addressed Richards directly: “Mr. Richards, I ... don't know how much you can follow here, but I need to make something clear. I am not following the plea agreement.... [Y]ou are here on a ninth DUI.” Neither the judge nor Richards made any further comments indicating that Richards had difficulty understanding his sentence.
Richards was sentenced as a fourth-or-subsequent DUI offender, receiving 12 months in custody and a $2,500 fine. He now appeals to this court.
Analysis
On appeal, Richards argues that the district court erred by not applying K.S.A.2011 Supp. 8–1567 retroactively—thus eliminating his prior offenses from sentencing consideration—and that the district court erred by not ordering a hearing to determine whether Richards was competent to be sentenced.
I. The District Court Did Not Err in Failing to Retroactively Apply K.S.A.2011 Supp. 8–1567.
Under the 2011 amendment 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 Richards' 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 amendment—effective July 1, 2011—should be applied when sentencing for a DUI offense that occurred in March of 2011 is a matter of statutory interpretation, a legal question that appellate courts 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 Richards is important because—if it applies—none of his prior DUIs would be considered. That would make the 2011 offense a first-offense DUI, which is a misdemeanor, rather than a fourth-or-subsequent-offense DUI, which is a felony. See K.S.A.2010 Supp. 8–1567(g)(1); K.S.A.2011 Supp. 8–1567(b)(1)(A). The penalties for the first-offense, misdemeanor DUI are—not surprisingly—less than those for the fourth-or-subsequent-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.
Richards argues that the 2011 amendment regarding which past DUI offenses would count should be applied retroactively, asserting that the amendment is procedural in nature and that the legislature intended the amendment to. apply retroactively because of the resulting sentencing discrepancies and because it was enacted in response to a decision of our Supreme Court. But several panels of this court have rejected arguments nearly identical to those raised here by Richards. 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 charges in sentencing statutes. 48 Kan.App.2d at 88–91. Since Reese was decided, all of the decisions of this court that we're aware of have agreed with Reese's analysis. See, e.g., State v. Shafer, No. 107,988, 2013 WL 2321186, at *2 (Kan.App.2013) (unpublished opinion), petition for rev. filed June 13, 2013; State v. Miller, No. 108,302, 2013 WL 1943153, at *6 (Kan.App.2013) (unpublished opinion); State v. Ulrich, No. 107,785, 2012 WL 5869662, at *–4 (Kan.App.2012) (unpublished opinion), petition for rev. filed December 17, 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) (decided before Reese; refusing to apply 2011 amendment retroactively), petition for rev. filed August 22, 2012.
We also agree with Reese and adopt its analysis. In Reese, this court upheld 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 determined 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.
Richards 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 amendment should be applied retroactively. The Dorsey Court interpreted the Fair Sentencing Act that reduced penalties for crimes related to crack cocaine. Based upon the language of the federal statute, it was concluded that there was a “ ‘fair implication’ “ that Congress intended to have the sentencing amendment applied retroactively, despite the lack of express congressional intent. 132 S.Ct. at 2335. In its analysis, the Dorsey Court relied on the Sentencing Reform Act's express statement that the amended sentences “ ‘in effect on the date the defendant is sentenced’ “ control regardless of the date of the crime. 132 S.Ct. at 2331 (quoting 18 U.S.C. § 3553[a][4][A][ii] ). Moreover, the Fair Sentencing Act contained a specific congressional finding that previous sentences for crimes involving crack cocaine, when compared to sentences involving powder cocaine, were “unfairly long.” Dorsey, 132 S. Ct at 2333.
In contrast, the 2011 DUI amendment does not contain any similar language or legislative findings that were present in Dorsey. The federal amendments in Dorsey did not attempt to alter jurisprudence relating to the retroactivity of sentencing statutes but were specific changes addressing a disparity in the sentencing scheme between crimes involving two different forms of cocaine. See Ulrich, 2012 WL 5869662, at *9. Hence, Dorsey is clearly distinguishable from the present case.
Richards separately argues that this court should amend its rules of statutory construction to retroactively apply statutory changes that could lessen the severity of his sentence. Richards points out that the State did not charge him with the crime until after the July 2011 amendment took effect. So he argues that the new statute should at least be applied to those charged after its effective date.
We do not find the date on which charges are filed to be conceptually significant here. Richards suggests that his rule would create uniform sentencing laws for similarly situated defendants. But we see no reason why two defendants who commit the same crime on the same date should be subject to different sentencing schemes simply because one is charged a few days later than the other. Everyone is presumed to know the criminal penalties that attach to their conduct, and uniformly applying the penalties in place on the date of each defendant's conduct is the surest way to assure fair treatment of all defendants.
Richards does not present any persuasive new arguments that were not addressed in Reese and other cases examining retroactivity of an amended statute. The amendment to K.S.A. 8–1567 does not apply retroactively, and Richards was not entitled to be sentenced under the amended statute.
II. The District Court Did Not Abuse Its Discretion by Failing to Order a Competency Hearing.
Richards also contends that the district court erred by not ordering a competency hearing when the court suggested that Richards could not understand the proceedings. Neither Richards nor his attorney requested a competency hearing or made any objection. But the issue of competency raises due-process concerns that are reviewable for the first time on appeal. State v. Foster, 290 Kan. 696, 702, 233 P.3d 265 (2010).
Whether a district court should have ordered a competency evaluation on its own motion is reviewed for abuse of discretion. State v. Barnes, 293 Kan. 240, 255–56, 262 P.3d 297 (2011); see Foster, 290 Kan. at 703. The district court abuses its discretion if no reasonable person would have exercised his or her discretion in the way the district court did or if the district court's ruling was based on a factual or legal error. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
K.S.A.2012 Supp. 22–3302(1) allows the judge to suspend the proceedings and hold a competency hearing if, “upon the judge's own knowledge and observation,” the judge finds “reason to believe that the defendant is incompetent to stand trial.” The statute applies “[a]t any time after the defendant has been charged with a crime and before pronouncement of sentence.” K.S.A.2012 Supp. 22–3302(1). Failing to hold a competency hearing “when ‘evidence raises a bona fide doubt as to defendant's competency[ ] is a denial of due process.’ “ Foster, 290 Kan. at 704 (quoting State v. Davis, 281 Kan. 169, 177, 130 P.3d 69 [2006] ).
K.S.A. 22–3301(1) provides the definition of incompetency to stand trial: “[A] person is ‘incompetent to stand trial’ when he is charged with a crime and, because of mental illness or defect is unable: (a) To understand the nature and purpose of the proceedings against him; or (b) to make or assist in making his defense.” Kansas' incompetency standard is in accord with Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), which stated that a criminal defendant may not be tried unless he “ ‘ “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.” ‘ “ State v. Harkness, 252 Kan. 510, 513, 847 P.2d 1191 (1993); see Barnes, 293 Kan. at 256. If the defendant passes this threshold, he is deemed sane for the purpose of being tried. State v. Shopteese, 283 Kan. 331, 341, 153 P.3d 1208 (2007) (citing Van Dusen v. State, 197 Kan. 718, 722–23, 421 P.2d 197 [1966] ). “Courts presume a criminal defendant is competent to stand trial.” Barnes, 293 Kan. at 256. Moreover, a defendant is not deemed incompetent to stand trial merely because he has received or needs psychiatric treatment. Harkness, 252 Kan. at 516.
Richards argues that the district court was required to order a competency hearing at sentencing because:
• Richards told the court he had had a brain aneurysm and suffered from posttraumatic stress disorder;
• Richards repeatedly stammered and admitted that he “lose[s] words sometimes”;
• Richards interrupted proceedings with a joke about a deer being the only victim of his DUI; and
• the judge commented, “Mr. Richards, I ... don't know how much you can follow here” before describing why the judge chose not to follow the plea agreement.
Richards does not point to any questionable statements or behaviors outside of the sentencing hearing, and our review of the record reveals no other comments that would give the district court a reason to question Richards' competency. From these comments at sentencing, Richards concludes that the judge expressed a sincere doubt about Richards' competency and was obligated to inquire further by ordering a competency hearing.
But Richards responded coherently to the judge's questions throughout the hearing. At most, Richards appears to have had difficulty expressing himself at times—possibly due to nervousness. Nor, in context, does Richards' comment about a deer demonstrate a lack of understanding about the proceedings.
The comment came just after the district judge had confirmed with the prosecutor that there were no victims in Richards' one-vehicle accident. Richards may have thought that he should mention hitting a deer, which some might consider a victim. The court responded that Richards was over the legal limit for alcohol when he hit the deer, and Richards confirmed that:
“The Court: ... This was an accident. I think it was a single motorcycle accident so that there would be no other victims; is that right?
“[The Prosecutor]: I believe so.
“The Court: No victims.
“[The Prosecutor]: Yes.
“The Defendant: May I make a joke, sir? I hit a deer.
“The Court: Well, yeah The [drug-and-alcohol evaluation] report does [indicate that]. I would also note that you were over the legal limit when you hit that deer.
“The Defendant: Yes, sir.”
Though odd, Richards' response about the deer showed him tracking what the judge was saying and either thinking that he ought to mention that a deer was struck or thinking that he might make what he thought was a joke about whether there was a victim. Either way, Richards' comment doesn't demonstrate an inability to understand the proceeding or to participate in it.
Richards brought up his Army service and his claim about posttraumatic stress disorder in a way perfectly appropriate to a sentencing hearing—as something the judge might consider in Richards' favor when sentencing him. Richards said he attended PTSD groups weekly and substance-abuse groups twice a week. When he got stuck looking for a word (“I'm doing everything I can to—to—I don't remember the word.”), his own attorney took over, arguing that Richards' military service be considered in mitigation of punishment. Richards' attorney also argued that his client's earlier DUIs simply reflected the effects of PTSD, which he said wasn't well understood when Richards committed his earlier offenses in the 1970's, 1980's, and 1990's. After his attorney spoke, Richards added that he was hoping he could serve custody time on house arrest.
The district court's comment about Richards perhaps not understanding everything in the proceeding came after the court had rendered a sentence, using lots of legal terms—about “the primary crime that controls the base sentence,” about a “nongrid felony, nonperson,” about “consecutive” sentences, about “postrelease supervision,” and about two cases referenced by name (“I'm gonna make a finding consistent with State v. Copes as well as State v. Robinson ....”). It's likely that many defendants could be confused at that point, so the district judge chose to make some very plain-language comments, beginning with the statement that the judge didn't know how well Richards had been following what he had just said:
“[The Court:] Mr. Richards, I—I don't know how much you can follow here, but I need to make something clear. I am not following the plea agreement. Okay? I don't like to do that. This system relies on judges following pleas—plea agreements, although we have to act independently. Your attorney did a fine job for you, spoke well for you today, but the thing that not even the most eloquent attorney or facts presented at sentencing cannot overcome and that is the fact that you are here on a ninth DUI. And I'm aware of what you told Mr. Vineyard, who did the drug and alcohol evaluation, that while you call yourself an alcoholic today, you told him that you do not believe that you have a problem with alcohol.
“The Defendant: No, sir.
“The Court: I need to talk now, okay? Whether or not—[w]hatever you said at that evaluation, what this comes down to is the fact that this is your ninth DUI, and I cannot in good conscience follow this plea agreement, not on a ninth DUI.”
The court continued by expressing appreciation for Richards' military service, recognizing that the military service itself “maybe ... contributes to the underlying cause of why you have your ninth DUI.” But the judge said that public-safety concerns led him to conclude that he should sentence Richards to the maximum 12–month sentence.
In sum, Richards and his attorney made a coherent, coordinated argument for sentencing leniency based upon his military service, his claim about the effects of PTSD, and the various treatment groups he was participating in. Richards cooperated with his attorney, assisted in his defense, and made his own argument for leniency and for house arrest. Taken as a whole, the record does not suggest that Richards was unable to understand the proceedings or to assist in his defense. We find no abuse of discretion in the district court's failure to order a mental-competency evaluation based on the events of the sentencing hearing.
The district court's judgment is affirmed.