Opinion
No. 109,475.
2014-11-14
STATE of Kansas, Appellee, v. Richard Lee BROWN, Appellant.
Appeal from Johnson District Court; Stephen R. Tatum, judge.Thomas J. Bath and Tricia A. Bath, of Bath & Edmonds, P.A., of Overland Park, for appellant.Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Stephen R. Tatum, judge.
Thomas J. Bath and Tricia A. Bath, of Bath & Edmonds, P.A., of Overland Park, for appellant. Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in Slate v. Brown, No. 109,475, 2013 WL 6063241 (Kan.App.2013) (unpublished opinion), filed November 15, 2013, Richard Lee Brown filed a petition for review. On November 3, 2014, our Supreme Court granted the petition for review and remanded this case to the Court of Appeals for reconsideration in light of State v. Reese, 300 Kan.––––, 333 P.3d 149 (2014). The only issue on appeal is whether the district court erred in finding that K.S.A.2011 Supp. 8–1567(j)(3) did not apply retroactively to Brown's case.
We will briefly review the facts. On March 19, 2011, Brown was arrested for driving under the influence (DUI). He was charged with felony DUI, fourth or subsequent offense, and refusing to provide a preliminary breath test. Brown had prior DUI convictions in 1995, 2000, and 2009. At the time he committed his current offense, K.S.A.2009 Supp. 8–1567(o)(3) provided that the district court could consider “any convictions occurring during a person's lifetime” when determining whether this would be his first, second, third, fourth, or subsequent conviction for sentencing purposes.
On December 16, 2011, Brown filed a motion and argued that he should receive the benefit of the new look-back provision in K.S.A.2011 Supp. 8–1567(j)(3), which went into effect on July 1, 2011. Under the new provision, “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.” L.2011, ch. 105, sec. 19. The district court denied this motion, finding that the look-back provision for prior convictions under the amended statute was not meant to be applied retroactively to prohibit the use of pre–2001 convictions in a case such as Brown's, where the current offense occurred before the amendment was enacted.
The case was tried to the district court on stipulated facts, and Brown was found guilty as charged. Prior to sentencing, Brown filed an objection to the criminal history as set out in the presentence investigation report, which listed three prior DUI convictions in 1995, 2000, and 2009. At the sentencing hearing on September 14, 2012, the district court granted Brown's objection to the alleged 1995 DUI conviction. The district court sentenced Brown as a third time DUI offender. Brown filed a timely notice of appeal.
On appeal, Brown argued that district court erred in finding that K.S.A.2011 Supp. 8–1567(j)(3) operated prospectively only. This court noted that another panel of our court had rejected a similar argument in State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012). Brown, 2013 WL 6063241, at *1. In Reese, the defendant was arrested for DUI on July 3, 2009, but he was not convicted of the offense until June 6, 2011. His sentencing was held on August 10, 2011, and a presentence investigation report identified four prior DUI convictions, all prior to July 1, 2001. The district court sentenced the defendant as a fourth or subsequent DUI offender. 48 Kan.App.2d at 88.
On appeal, the Reese court noted a fundamental rule of criminal procedure in Kansas that a defendant is sentenced based on the law in effect when the crime was committed. 48 Kan.App.2d at 89. The Reese court also noted the fundamental rule that a statute operates prospectively unless either the language clearly indicates that the legislature intended the statute to apply retroactively or the change is procedural only and does not prejudicially affect the substantive rights of the parties. 48 Kan.App.2d at 89. Applying these fundamental rules to K.S.A.2011 Supp. 8–1567(j)(3), the Reese court concluded that the district court did not err in refusing to apply the new look-back provision in the amended statute to the defendant's case. 48 Kan.App.2d at 91.
Based on Reese, this court rejected Brown's argument that the new look-back provision should have been retroactively applied to his case. Brown, 2013 WL 6063241, at *1. This court concluded that the district court did not err in calculating the number of Brown's prior DUI convictions in determining the severity of the crime and the appropriate sentence. 2013 WL 6063241, at *2.
However, on August 29, 2014, our Supreme Court reversed this court's decision in Reese. In its analysis, the court examined the nature of the DUI statutory scheme, its historical development, and how prior offenses have historically been handled. Reese, 333 P.3d at 152. The court also examined the statutory language employed in K.S.A.2011 Supp. 8–1567(j). 333 P.3d at 153–54. Ultimately, our Supreme Court found that “the plain statutory language and the unique nature of the DUI sentencing scheme dictate that the number of prior DUI convictions applicable to the current DUI sentence is to be calculated at the time of sentencing on the current conviction.” 333 P.3d at 150. Our Supreme Court went on to hold that the provisions of K.S.A.2011 Supp. 8–1567(j)(3) apply to all persons who are sentenced for DUI on or after July 1, 2011, the effective date of the amended statute, even if the person committed the DUI before that date. Reese, 300 Kan. ––––, Syl.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The Kansas Supreme Court's decision in Reese controls the outcome of Brown's appeal. K.S.A.2011 Supp. 8–1567(j)(3) provides that the sentencing court is to take into account only those prior DUI convictions that occurred on or after July 1, 2001, and determine at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement. Reese, 300 Kan., Syl. Brown's case is remanded for resentencing. Under the amended DUI law, which is applicable to Brown's case, only Brown's prior DUI convictions occurring on or after July 1, 2001, shall be taken into account in determining the severity of the crime and the appropriate sentence.
Reversed and remanded with directions.