Opinion
No. 107,876.
2013-05-3
STATE of Kansas, Appellee, v. Jerry SAMPLES, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert and Gregory L. Waller, Judges. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert and Gregory L. Waller, Judges.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jerry Samples appeals from his conviction of felony driving under the influence of alcohol (DUI), contending that his waiver of the right to a jury trial was invalid because the district court failed to advise him that a jury would have to reach a unanimous verdict to convict him. In addition, Samples attacks his sentence, contending that the district court erred in refusing to exclude his prior DUI convictions under K.S.A.2011 Supp. 8–1567(j)(3). Because we find Samples' arguments to be unpersuasive, we affirm his conviction and sentence.
Facts
Jerry Samples was arrested on October 2, 2010, for DUI and for various traffic offenses. Several months later, the State filed formal charges alleging Samples drove with a blood or breath alcohol concentration (BAC) of 0.263. In the alternative, the State alleged that Samples drove under the influence to the extent he was incapable of safely operating a motor vehicle. The State also alleged Samples had two prior convictions for DUI that occurred in 1988 and 2005.
Shortly after the State filed charges, the district court held several pretrial hearings. In the first, Samples waived his right to a preliminary hearing and was bound over for trial on all the charges. The district court set the case for trial on May 23, 2011, but continued it twice at Samples' request. At a hearing held on August 1, 2011, Samples personally advised the district court that he wished to waive his right to a jury trial. After explaining Samples' right to a jury trial and asking if he had any questions, the judge set the case for a bench trial.
Subsequently, Samples filed a motion seeking to exclude the use of his prior DUI convictions in this case. In his motion, Samples argued that House Substitute for Senate Bill 6—which was effective on July 1, 2011—required the exclusion of any DUI conviction which occurred prior to July 1, 2001. Specifically, Samples asserted that the statutory amendment should apply retroactively. After receiving a response from the State and holding a brief hearing, the district court overruled Samples' motion.
During this same hearing, Samples' attorney stated that the parties would submit the case for a bench trial based on a detective's affidavit regarding the events that led to Samples' arrest, including the fact that the result of his breath test was 0.263. The district court found Samples guilty based on the stipulations and ordered the preparation of a presentence investigation report. At the subsequent sentencing hearing, Samples did not raise an issue relating to his waiver of the right to a jury trial, nor did he file a motion to set aside the verdict. Ultimately, the district court imposed a controlling 6–month sentence, but placed Samples on probation on the condition that he serve 48 hours in jail and spend 88 days on house arrest. Thereafter, Samples timely appealed from all the court's rulings.
Analysis
Waiver of Jury Trial
On appeal, Samples asserts the district court erred by failing to follow proper procedures in accepting his waiver of his right to a jury trial. Before addressing this issue on the merits, we must first consider the fact that Samples did not challenge the validity of his jury trial waiver at any point in the district court proceedings. Generally, an issue not raised before the district court—even an issue raising a constitutional question—cannot be raised for the first time of appeal. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). Although Samples concedes he did not raise this issue below, he asks us to address the issue to serve the ends of justice and to prevent a denial of fundamental rights.
In State v. Frye, 294 Kan. 364, 367–71, 277 P.3d 1091 (2012), the Kansas Supreme Court recognized that a defendant is not absolutely barred from challenging the validity of a waiver of the right to a jury trial for the first time on appeal. In reaching this conclusion, our Supreme Court reasoned that the general rule requiring preservation of issues at the trial level is a prudential rather than jurisdictional rule. It is important to note that, unlike the present case, the district court in Frye never addressed the defendant personally regarding his waiver of his right to a jury trial as mandated by K.S.A. 22–3404(1). Instead, the judge in Frye merely accepted a written waiver of the defendant's right to a jury trial. 294 Kan. at 371–72, 277 P.3d 1091.
Here, a review of the record reveals that the judge addressed Samples personally on the record and advised him that “[i]f you give up [your right to a jury trial], you are giving up your right to have 12 individuals determine your guilt or innocence, and thereafter the case would be tried to the Court as a bench trial matter or disposed of by way of a plea agreement.” The judge then asked Samples if he had any questions about his rights. Samples replied, “No, I don't have any questions. No.” At no point did Samples ever tell the district judge that he was confused or that he did not understand his rights.
We find the record in this case to be readily distinguishable from Frye, where the Kansas Supreme Court addressed the validity of a jury trial waiver raised for the first time on appeal. The Frye court noted considerable confusion in the record regarding the defendant's desire for a jury trial in light of alternating jury requests and waivers. This confusion was compounded by a shift of the charges from misdemeanor to felony. Frye, 294 Kan. at 369–70, 277 P.3d 1091. Likewise, the present case is distinguishable from State v. Beaman, 295 Kan. 853, 857, 286 P.3d 876 (2012), in which our Supreme Court permitted a defendant to raise the issue for the first time on appeal because the record reflected that he was confused during his discussion with the court about his waiver.
Because we find nothing in the record from which a reasonable person could infer that Samples was confused regarding his right to a jury trial, we are not inclined to consider his waiver challenge for the first time on appeal. Nevertheless, we note that the outcome would be the same even if we did consider Samples' argument on the merits. In particular, we note that Samples argues that the district court was required to inform him that 12 jurors would have to unanimously agree to convict him. But the Kansas Supreme Court has never required this to effectuate a valid waiver. See Beaman, 295 Kan. at 862, 286 P.3d 876 (citing State v. Clemons, 273 Kan. 328, 340–41, 45 P.3d 384 [2002] ) (“On the contrary, we have held a waiver knowingly and voluntarily made even when the district court did not inform the defendant of his right to a unanimous verdict.”). Thus, even if we were to consider this issue on the merits, we would conclude that the record demonstrates Samples' jury trial waiver was knowingly and voluntarily made.
We also note that the evidence of Samples' guilt was overwhelming and was not challenged at trial. In addition to a plethora of other evidence, the vehicle Samples was driving prior to his arrest hit two other vehicles (including one driven by an off-duty police officer), he admitted that he had drunk “a lot” on the day of his arrest, and the breath test administered to him within 2 hours following the accident revealed a BAC of 0.263—which is more than three times the legal limit in Kansas. Hence, even if this case had been tried to a jury, it is inconceivable that the outcome would have been different than the outcome of the bench trial. Applicability of K.S.A.2011 Supp. 8–1567
Samples also contends the district court erred in finding that his current conviction constituted a third DUI conviction for sentencing purposes. It is undisputed that at the time of Samples' offense, the Kansas DUI 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). Moreover, Samples does not dispute that he possessed two prior convictions for DUI, occurring in 1988 and 2005.
Prior to his bench trial, however, the 2011 amendments to the DUI statute went into effect. Under those amendments, “only convictions occurring on or after July 1, 2001, shall be taken into account” in determining whether a conviction is a first, second, third, fourth, or subsequent conviction. K.S.A.2011 Supp. 8–1567(j)(3). As such, Samples argues the 2011 amendment should apply in this case.
Determining whether the 2011 amendment should be applied when the offense occurred in 2010 is a matter of statutory interpretation. Accordingly, it presents a legal question that the appellate court determines independently, without any deference to the district court's interpretation. See State v. Mason, 294 Kan. 675, 676, 279 P.3d 707 (2012). The well-established rule in Kansas is that a defendant is sentenced based on the law in effect when the crime is committed. See State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010); State v. Walker, 277 Kan. 849, 850, 89 P.3d 920 (2004).
Kansas courts have expressly recognized that applying the penalties in effect for a crime “fixed as of the date of the commission of the offense is fair, logical, and easy to apply.” State v. Vandervort, 276 Kan. 164, Syl. ¶ 6, 180, 72 P.3d 925 (2003). Likewise, Kansas courts have long recognized the principle that a statute generally operates prospectively unless the language of the statute clearly makes the statute retroactive. The only exception to this rule provides that a change may be applied retroactively if the statutory change is procedural or remedial and does not prejudicially affect the parties' substantive rights. See State v. Williams, 291 Kan. at 557, 244 P.3d 667.
Samples argues that the 2011 amendment altering the DUI statute should be considered procedural and remedial. But various panels of this court have rejected arguments nearly identical to those made by Samples. In these cases, the panels have rejected this argument as contrary to the settled Kansas law discussed above. See, e.g., State v. Reese, 48 Kan.App.2d 87, 91, 283 P.3d 233 (2012), petition for rev. filed September 4, 2012; 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 (Kan.App.2012) (unpublished opinion), petition for rev. filed December 17, 2012; State v. Loredo, No. 108,073, 2012 WL 5205761 (Kan.App.2012) (unpublished opinion). We find the reasoning in Reese and these other cases to be persuasive.
Samples also argues that under the plain language of the statute, as amended, the date of sentencing should be used to determine which version of the statute should apply. Again, Reese and the other cases cited above have rejected this argument. As noted in Reese, the legislature specifically provided for some of the provisions of the 2011 DUI amendments to be retroactive, but it failed to include any retroactive language with respect to the “look-back” provision. This differentiation reflects a legislative intent that the decay provisions, unlike other portions of the amendments, were not intended to be retroactive. Reese, 48 Kan.App.2d at 89–91, 283 P.3d 233.
Finally, Samples relies on Dorsey v. United States, 567 U.S. ––––, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), to support his argument that the decay 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. 2335. In its analysis, the Dorsey Court relied on the 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 Act contained a specific congressional finding that previous sentences for crimes involving crack cocaine, when compared to sentences involving powder cocaine, were ‘ “unfairly long.’ “ 132 S.Ct. at 2333.
In contrast, the 2011 DUI amendments do 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.
For these reasons, we conclude that the district court appropriately denied Samples' motion to exclude his pre–2001 DUI conviction and properly treated Samples' conviction as a third DUI conviction for the purposes of determining his sentence in this case.
Affirmed.