Opinion
No. 107,785.
2012-11-16
STATE of Kansas, Appellee, v. Phillip J. ULRICH, Appellant.
Appeal from Douglas District Court; Paula B. Martin, Judge. Edward C. Gillette and Grant M. Reichert, of Gillette Law Firm, P .A., of Mission, for appellant. Patrick J. Hurley and Gregory T. Benefiel, assistant district attorneys, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Paula B. Martin, Judge.
Edward C. Gillette and Grant M. Reichert, of Gillette Law Firm, P .A., of Mission, for appellant. Patrick J. Hurley and Gregory T. Benefiel, assistant district attorneys, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and MARQUARDT, JJ.
MEMORANDUM OPINION
PER CURIAM.
Phillip J. Ulrich appeals his conviction of driving under the influence (DUI), third offense. Ulrich argues the changes to the DUI statutes concerning use of prior DUI convictions should apply retroactively to him and he was also denied a speedy trial.
On December 26, 2008, Ulrich was arrested for DUI after he failed to stop at a stop sign and then failed multiple field sobriety tests. Ulrich pled not guilty at arraignment on January 9, 2009. The DUI charges were dismissed on April 7, 2009, and then refiled as felony DUI on April 15, 2011. Ulrich had multiple DUI convictions all occurring prior to 1991. The parties filed competing motions concerning the application of the amendments to the DUI laws and the resulting “look-back” provisions of K.S.A.2011 Supp. 8–1567. The amendment only allowed DUI convictions occurring on or after July 1, 2001, to count for determining whether a DUI conviction is a first, second, third, fourth, or subsequent conviction. The amendments at issue took effect on July 1, 2011. The district court denied Ulrich's motion, finding that under the rules of statutory interpretation and Kansas caselaw all pre–2001 DUI convictions are included in sentencing for any conviction with an incident date prior to July 1, 2011.
At his trial on January 13, 2012, Ulrich raised the speedy trial issue after the first witness took the stand and began testifying. The parties argued about the days attributable to the State and those attributable to Ulrich. The trial court concluded that at most 160 days were attributable to the State and thus no violation of Ulrich's right to a speedy trial existed. Ulrich entered a stipulation of facts, as established at the preliminary hearing, knowing the only issues he would raise on appeal would be the effect of his prior DUI convictions and the speedy trial question. The trial court found Ulrich guilty of DUI third offense.
Ulrich's presentence investigation revealed two DUI convictions in 1995 and two DUI convictions in 1990. Ulrich was sentenced as a third-time DUI offender. The trial court sentenced Ulrich to 12 months in the county jail, a $1,500 fine plus costs, and 12 months' probation. Ulrich appeals. We affirm.
Ulrich argues the trial court erred in finding that K.S.A.2011 Supp. 8–1567(j)(3) was not retroactive and in admitting his pre–2001 DUI convictions. Ulrich argues the legislative changes should be considered procedural due to the plain and unambiguous language in K .S.A.2011 Supp. 8–1567(j)(3), cases from other jurisdictions (Missouri, New York, and Alaska), other provisions of Kansas DUI statutes, and unreasonable results. He also argues that K.S.A.2011 Supp. 8–1567(j)(3) is clearly retroactive without being impermissibly ex post facto.
The Court of Appeals has rejected arguments nearly identical to those raised by Ulrich and we find the analysis sound. Recently, in State v. Reese, 48 Kan.App.2d 87, ––––, 283 P.3d 233 (2012), the court found:
“Reese argues that the change to K.S.A. 8–1567's ‘look-back’ provision should be applied retroactively. At the time Reese committed his fifth lifetime DUI, the Kansas DU1 statute contained a lifetime ‘look-back’ provision; that is, any conviction occurring during a person's lifetime was taken into account when determining the sentence to be imposed for a second, third, fourth, or subsequent offender. K.S.A.2009 Supp. 8–1567(o)(3). It was not until 2011 that the legislature amended the ‘look-back’ peri od 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.’ K.S.A.2011 Supp. 8–1567(j)(3); L.2011,ch. 105, sec. 19.
“Reese argues that because each of his four prior DUI convictions occurred before July 1, 2001, he should have been sentenced as a first-time offender under the amended statute that became effective before his sentencing. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
“Reese argues that the amendment is clear, plain, and unambiguous on its face; as of July 1, 2011, DUI convictions occurring before July 1, 2001, are not to be considered for sentence enhancement. Although the amendment was effective before Reese's sentencing, it was not effective when his crime was committed.
“It is a fundamental rule of criminal procedure in Kansas 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, our Supreme Court has explained that ‘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. Our Supreme Court has found that a defendant's sentence was properly enhanced under the habitual criminal statute even though after the defendant committed aggravated burglary, but before his trial and sentencing, the statute was amended and no longer authorized a trial court to double the maximum sentence for a defendant convicted of aggravated burglary. State v. Mayberry, 248 Kan. 369, 387, 807 P.2d 86 (1991). Similarly, a panel of this court has found that an amendment to the driving while suspended statute, changing the conviction from a felony to a misdemeanor, did not apply retroactively. State v. Edwards, 28 Kan.App.2d 379, 380–81, 15 P.3d 855 (2000); see State v. Martin, 270 Kan. 603, 607–10, 17 P.3d 344 (2001).
“Moreover, we discern no language in the legislation that would indicate intent for retroactive application of this provision. Our Supreme Court has stated the fundamental rule regarding retroactivity of statutory changes:
‘The fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. [Citation omitted.] An exception to the fundamental rule is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively. [Citation omitted.]’ Williams, 291 Kan. at 557.
Because the legislature did not clearly indicate that it intended the amendment to operate retroactively, it operates prospectively unless we conclude that the procedural or remedial exception somehow applies. Our Supreme Court has defined substantive and procedural laws as follows: ‘ “As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.” ‘ Tonge v. Werholtz, 279 Kan. 481, 487, 109 P.3d 1140 (2005). Prospective application of a statute affecting sentencing necessarily means it applies to crimes committed thereafter.
“Here, the district court found that the ‘look-back’ amendment was a substantive change in the law and should not be applied retroactively. We agree. Our Supreme Court has found that a statutory amendment modifying the severity of punishment for a conviction alters substantive rights, and therefore only operates prospectively. Williams, 291 Kan. at 557. We see no reason the Williams rationale and conclusion should not apply here.
“Reese also argues, however, that the legislature clearly intended K.S.A.2011 Supp. 8–1567(j)(3) to apply retroactively where a sentence had not been imposed prior to the effective date of the amendment. We disagree. The legislature explicitly provided for retroactive application of some provisions within the Act, thus indicating no intent for retroactivity where not explicitly provided; specifically, K.S.A.2011 Supp. 8–1014(g) allows a defendant to retroactively apply the amended penalty provisions regarding suspension and restriction of driving privileges. This amendment was contained in the same act as the amendment to K.S.A.2011 Supp. 8–1567(j)(3). See L.2011, ch. 105, secs. 14, 19. Similarly, the DUI Commission recommended retroactive application of the amended penalty provisions of K.S.A.2011 Supp. 8–1014 if requested. Report of the Kansas DUI Commission to the 2011 Kansas Legislature, at 21–25 (2010). Because the legislature clearly provided for retroactive application in one area of the Act, its failure to do so for K.S.A.2011 Supp. 8–1567G)(3) must be considered as reflective of an intention for the ‘look-back’ change to be applied prospectively only. See In re Petition to Call Grand Jury, No. 103,723, 2011 WL 4716342, at *4 (Kan.App.2011) (unpublished opinion) (noting that although the legislature knew how to provide a right to appeal, it did not do so), rev. denied 294 Kan. (June 13,2012).
“Finally, Reese argues that the statute should be applied retroactively because he should receive the benefit of an ameliorative sentencing amendment, citing Alaska caselaw to support his argument. As the State notes, however, Reese does not cite Kansas caselaw supporting this argument. Our Supreme Court has never recognized any such rule, and until it does, we are not inclined to embrace it despite its recognition elsewhere. See, e.g ., State v. Jaben, 294 Kan. 607, Syl. ¶¶ 3–4, 277 P.3d 417 (2012); State v. Roseborough, 263 Kan. 378, 383–86, 951 P.2d 532 (1997); Mayberry, 248 Kan. at 387; see also State v. Nunn, 244 Kan. 207, Syl. ¶ 8, 768 P.2d 268 (1989) (remedial statute applied retroactively when it is merely procedural).”
The trial court did not err in finding the changes in the “look-back” provisions in DUI litigation and K.S.A.2011 Supp. 8–1567 do not apply retroactively to Ulrich. His DUI occurred prior to the effective date of the amendments on July 1, 2011, and he should be sentenced according to the laws in effect at the time of the commission of his crime. His conviction and sentence are therefore affirmed.
Next, Ulrich argues the trial court erred in denying his motion to dismiss for violation of his speedy trial rights.
The question of whether there is a violation of statutory and constitutional rights to a speedy trial is a matter of law this court reviews independently, without any required deference to the district court. See State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003). It is well established that the statutory time period for speedy trial starts on the date of arraignment. 275 Kan. at 598.K.S A. 22–3205(a) states: “Arraignment shall be conducted in open court and shall consist of reading the complaint, information or indictment to the defendant or stating to the defendant the substance of the charge and calling upon the defendant to plead thereto.”
Ulrich was originally charged on January 9, 2009, with DUI first offense and failure to stop at stop sign. Ulrich bonded out. He pled not guilty at arraignment on January 9, 2009, and the court set the case for trial on February 26, 2009. The trial date was continued and a preliminary hearing was set for April 2, 2009. On April 6, 2009, the State filed a motion to dismiss and it was granted on April 7, 2009.
The second information, this time charging Ulrich with felony DUI, was filed on April 15, 2011. Ulrich was served with a summons on May 19, 2011, and he had his first appearance on May 31, 2011. The court scheduled the preliminary hearing for June 16, 2011. The preliminary hearing was continued to July 7, 2011. The trial court heard evidence surrounding the stop of Ulrich and his failure of the field sobriety tests. At the end of the State's evidence, defense counsel argued to the trial court that based on the changes in the “look-back” provisions of the DUI law, the court could only charge Ulrich with DUI first offense. The court did not rule on the issue and ordered the parties to brief their arguments. The court continued the preliminary hearing to September 9, 2011, to give the parties time to brief the “look-back” issue.
On August 18, 2011, Ulrich filed his motion for retroactive application of the new “look-back” DUI provisions. On August 19, 2011, the State filed its response. On September 9, 2011, the court heard arguments from the parties on the “look-back” issue and took the issue under advisement. On October 5, 2011, the trial judge emailed the parties the following:
“Counsel–Defendant's objection to introduction of prior convictions occurring before July 1, 2001 is overruled. The priors are included. I will make a record with findings and conclusions of law when you next appear. Please contact my administrative assistant ... to schedule your next appearance. Good briefs by both. Thanks.”
The parties agreed to set the next appearance for November 2, 2011. On that day, the trial court held that the new “look-back” provisions did not apply to Ulrich and all his prior convictions counted in determining how many prior DUIs he had. The court proceeded with arraignment, and defense counsel waived formal reading of the information. Ulrich waived ajury trial. On January 13, 2012, the trial court convicted Ulrich on stipulated facts.
In the first case, Ulrich was arraigned on January 9, 2009. The case was dismissed by the State on April 7, 2009. A total of 88 days are attributable to the State for Ulrich's speedy trial computation. In the second case, Ulrich was arraigned on November 2, 2011. The trial occurred on January 13, 2012. A total of 73 days are attributable to the State. The trial court held that approximately 160 days was attributable to the State and there was no statutory violation of Ulrich's right to a speedy trial. We agree.
The biggest disagreement at the hearing on the speedy trial issue was whether Ulrich was arraigned in the second case at the preliminary hearing on July 7, 2011, because when the trial court entered its email ruling on October 5, 2011, on the issue of the past DUIs, then the July 7, 2011, hearing became a de facto arraignment. However, it is clear the arraignment occurred on November 2, 2011. Ulrich does not raise the arraignment argument on appeal, but instead switches gears and argues it was not a necessity that the State dismiss the first case because of a lack of documentary support of Ulrich's prior DUIs. See State v. Cuezze, Huston, and Faltico, 225 Kan. 274, 278, 580 P.2d 626 (1979) (“Absent a showing of necessity, the State cannot dismiss a criminal action and then refile the identical charges against the same defendant and avoid the time limitations mandated by the statute.”). As a result, Ulrich now argues that the number of days from his first arraignment, January 9, 2009, till the date of the trial on the second complaint, January 13, 2011—1069 days—should be held against the State and we should find a violation of his speedy trial rights. Ulrich's argument is contrary to controlling Kansas caselaw.
In City of Derby v. Lackey, 243 Kan. 744, 763 P.2d 614 (1988), the same DUI case was filed against Lackey three times. In dismissing the case on statutory speedy trial grounds, the trial court ruled that the time lapse between each dismissal and refiling and between refiling and first appearance was included. The Supreme Court reversed, holding: “When a misdemeanor case has been dismissed and charges refiled, the time between the dismissal and a subsequent K.S.A. 22–3205 first appearance is to be disregarded in determining whether the time periods mandated by the speedy trial statute, K.S.A. 22–3402, have elapsed.” 243 Kan. at 746.
The Lackey court relied upon State v. Ransom, 234 Kan. 322, Syl. ¶ 1, 673 P.2d 1101 (1983), cert. denied469 U.S. 818:
‘ “Where the State dismisses a pending criminal case without making a showing of necessity, and then files a second case charging the same defendant with the same offense, a court must include the time elapsed between arraignment and dismissal of the first prosecution together with the time elapsed between arraignment and trial of the second prosecution, when calculating time for the purpose of applying K.S.A. 22–3402, the Kansas speedy trial statute.” ‘ Lackey, 243 Kan. at 746.
Based on controlling Supreme Court precedent, we find the trial court did not err by failing to charge against the State the time period between dismissal of the misdemeanor case and arraignment in the felony case for purposes of calculating the statutory speedy trial deadline. Ulrich's statutory speedy trial rights were not violated.
Finally, Ulrich argues that his constitutional rights to a speedy trial were also violated. Whether a defendant's constitutional right to a speedy trial has been violated is a question of law over which an appellate court has unlimited review. State v. Hayden, 281 Kan. 112, 126–27, 130 P.3d 24 (2006).
The Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a public and speedy trial. Unlike the statutory speedy trial right, which attaches at arraignment, the constitutional speedy trial right attaches at the formal charging or arrest, whichever is first. State v. Rivera, 277 Kan. 109, 112, 83 P.3d 169 (2004). The United States Supreme Court announced a balancing test and identified factors for courts to consider in determining whether a defendant's Sixth Amendment right to a speedy trial has been violated. These factors include: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his or her right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). None of the factors is controlling in determining whether a defendant's constitutional right to a speedy trial has been violated, but the factors must be considered together with such other circumstances as may be relevant. 407 U.S. at 533.
The passing of time alone does not establish that a violation of the right to a speedy trial occurred. The tolerable delay for an ordinary crime is less than for a complex one. Barker, 407 U.S. at 530–31. Even if a delay is found to be presumptively prejudicial, the defendant must still show that he or she suffered actual prejudice from the delay. See State v. Weaver, 276 Kan. 504, 511–12, 78 P.3d 397 (2003).
The length of time between Ulrich's initial arrest on January 9, 2009, and the January 13, 2012, trial setting was just over 3 years or 36 months. There were no charges pending during 24 of these months and, out of the 12 months that there were charges pending, at least 4 months can be attributed to defendant's objection to the inclusion of prior DUIs based on the 2011 legislative amendments.
The reason for the delay was the State's decision to dismiss the charges in order to obtain certified copies of Unrich's other prior counseled DUI convictions in order to establish the felony DUI (third offense) prosecution. See K.S.A. 22–2903(3); State v. Seems, 277 Kan. 303, 305–06, 84 P.3d 606 (2004). The State does not give a reason why the charges were not filed until nearly 2 years later. However, nothing in the record indicates that the delay in refiling the charges constituted a deliberate attempt by the State to delay the trial and hamper Ulrich's defense.
In United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the defendant was indicted by the Army in May 1970 for murdering his wife and two children. In October 1970, the Army dismissed the charges. In December 1970, the defendant was honorably discharged, which terminated the Army's jurisdiction over him. At the request of the Justice Department, the Army continued to investigate the murders and eventually submitted reports to the Justice Department between June 1972 and August 1973. Following an evaluation of those reports, the Justice Department presented the matter to a grand jury in August 1974. In January 1975, the grand jury returned an indictment charging the defendant with the three murders. A jury ultimately found the defendant guilty of two counts of second-degree murder and one count of first-degree murder.
On appeal, the Fourth Circuit Court of Appeals held that the indictment violated the defendant's Sixth Amendment right to a speedy trial. The Supreme Court granted certiorari and reversed, concluding that the time period between the dismissal of the military charges and the later indictment in a civilian court should not be considered at all in determining the length of delay in bringing the defendant to trial for Sixth Amendment speedy trial purposes. Specifically, the Supreme Court stated:
“ Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly, the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in [United States v.] Marion, [404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971),] where the defendants had been subjected to a lengthy investigation which received considerable press attention. But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, ‘a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.’ United States v. Marion, 404 U.S., at 321. Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.” (Emphasis added.) MacDonald, 456 U.S. at 8–9.
With regard to the third factor, Ulrich asserted his right to a speedy trial very late in the game. The charges were refiled against him in April 2011, but he did not assert his speedy trial violation until the trial in January 2012.
As for the final factor—prejudice to the defendant—the Sixth Amendment right to a speedy trial was designed to (1) prevent oppressive pretrial incarceration; (2) minimize anxiety and concern of the accused; and (3) limit the possibility the defense will be impaired. Barker, 407 U.S. at 532. Here, Ulrich was in custody for 3 days on the felony DUI charge and then released on bond. He does not assert that his defense was impaired by the delay, but he does assert that he was prejudiced by the anxiety and concern stemming from the pending charges.
Applying the Barker factors to the facts here, we find only one factor weighs in favor of Ulrich; he asserted his right to a speedy trial, albeit late in the proceedings. Although the length of delay is considerable, we do not consider it presumptively prejudicial because there were no charges pending from April 7, 2009, to April 15, 2011. There is no evidence that the State intentionally sought to delay this prosecution, no evidence that Ulrich was subjected to oppressive pretrial incarceration, no evidence that Ulrich experienced undue anxiety and concern when the charges were actually pending, and no evidence that Ulrich's defense was impaired in any way. For these reasons, we find no constitutional speedy trial violation.
We have been asked to analyze a recent United States Supreme Court decision as to its possible applicability to this case.
In Dorsey v. United States, 567 U.S., 132 S.Ct. 2321, 183 L. Ed 2d 25 (2012), the United States Supreme Court held the more lenient mandatory minimum penalties of the Fair Sentencing Act of 2010(FSA), Pub.L. No. 111–220, 124 Stat. 2372, apply to offenders who were sentenced after the FSA's effective date of August 3, 2010, for conduct occurring prior to the FSA's effective date.
In Dorsey, the Supreme Court determined that the FSA's reduced mandatory minimum sentences for crack-related crimes apply to such defendants. After acknowledging that the “relevant language in different statutes argues in opposite directions,” the Court held that Congress intended, by the FSA, to apply with respect to the mandatory minimum sentences the well-established principle that ‘ “sentencing judges [are] to use the Guidelines Manual in effect on the date that the defendant is sentenced,’ regardless of when the defendant committed the offense, unless doing so ‘would violate the ex post facto clause’' ‘ of the Constitution. Dorsey, 132 S.Ct. at 2332.
On June 21, 2012, the United States Supreme Court decided Dorsey, finding that basic sentencing “objectives such as uniformity and proportionality in sentencing” override other considerations of statutory interpretation in the application of ameliorative sentencing amendments. The federal circuit courts had previously addressed the issue, and come to divergent conclusions. Compare, e.g., Acoff, 634 F.3d at 202 (FSA does not apply to such defendants) and United States v. Fisher, 635 F.3d 336, 339–40 (7th Cir.2011) (same), with United States v. Douglas, 644 F.3d 39, 42–44 (1st Cir.2011) (FSA applies to such defendants) and United States v. Dixon, 648 F.3d 195, 203 (3d Cir.2011) (same) (quoting United States Sentencing Guidelines Manual § B1.11); see 18 U.S.C. § 3553(a)(4)(A)(ii) (2000 ed.).
Dorsey concerned federal sentencing statutes which addressed the disparity in sentencing between crack and powder cocaine. The Supreme Court found that the “new, more lenient mandatory minimum provisions” should be applied to offenders who committed their crimes before the law changed, but were sentenced after the law changed. 132 S.Ct. at 2326. The Dorsey Court rested its decision “primarily on the fact that a contrary determination would seriously undermine basic Federal Sentencing Guideline objectives such as uniformity and proportionality in sentencing.” 132 S.Ct. 2326.
The Court in Dorsey discussed the possibility of two citizens being sentenced for the same criminal activity but not applying the new law retroactively, stating that “the imposition of these disparate sentences involves roughly contemporaneous sentencing, i .e., the same time, the same place, and even the same judge, thereby highlighting a kind of unfairness that modern sentencing statutes typically seek to combat.” 312 S.Ct. 2333.
The State of Ohio has applied Dorsey for the proposition that modern sentencing statutes seek to avoid the “unfairness” of imposing disparate sentencing on roughly contemporaneous sentencing. See State v. Gillespie, 975 N.E.2d 492 (Ohio App.2012). In Gillespie, the Ohio Court of Appeals decided that an amendment to a theft sentencing statute that made certain thefts misdemeanors instead of felonies should be applied retroactively, reasoning, with Dorsey, that if not applied retroactively
“[t]wo individuals accused of the same conduct could be treated differently and receive different sentences, one a felony and one a misdemeanor, after the amendments had become effective even though both were sentenced on the same date. We find no strong countervailing considerations between pre-amendment offenders such as Gillespie sentenced after September 30, 2011 and post-amendment offenders that make a critical difference to require them to be treated differently.” Gillespie at 4, citing Dorsey, ––– U .S. at ––––.
Several facts distinguish Ulrich's case from Dorsey. First, the FSA 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 priors DUI convictions was not one of them. Dorsey is not applicable to the instant case.
Affirmed.