Opinion
108,751.
12-05-2014
STATE of Kansas, Appellee, v. Christopher M. BUCKLEY, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Matt Franzenburg, assistant county attorney, Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Matt Franzenburg, assistant county attorney, Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher M. Buckley entered a no contest plea to driving under the influence (DUI) and driving while license suspended. Buckley's three prior DUI convictions were used in sentencing. Buckley argued that K.S.A 2011 Supp. 8–1567(j)(3) should be applied retroactively in determining whether his conviction was a first, second, third, fourth, or subsequent conviction. He further argued the district court had failed to consider his financial resources and the burden imposed from the fine he received at sentencing.
Buckley was arrested on June 25, 2011, and charged with felony DUI, fourth or subsequent offense, and driving while suspended, second offense. He entered no contest pleas on both charges and was convicted of both. At the time of sentencing, Buckley had three prior DUI convictions. His previous convictions occurred on May 26, 1996; July 2, 1997; and January 26, 2011. Prior to sentencing, Buckley filed a motion to prohibit the use of his criminal history. He argued K.S.A.2011 Supp. 8–1567(j)(3) should apply retroactively to exclude his 1996 and 1997 DUI convictions. Buckley argued that although his arrest took place before the effective date of the statutory amendment, his pre–2001 DUI convictions fell outside of the newly enacted look-back period and should not be considered in sentencing.
The district court denied Buckley's motion and found the statutory amendment did not apply retroactively. Buckley's 1996 and 1997 DUI convictions were used to enhance his DUI history. The court sentenced Buckley to an underlying 12–month jail sentence, 100 days to be served prior to postrelease supervision, alcohol and drug treatment, and the mandatory $2,500 fine for a fourth or subsequent DUI conviction. Buckley was also given an underlying sentence concurrent with his DUI sentence and a $100 fine for driving while suspended.
The district court inquired as to Buckley's financial situation prior to sentencing. Counsel informed the court that Buckley was currently unemployed and facing bankruptcy as well as foreclosure on his home. The court waived reimbursement of attorney fees based on Buckley's financial situation. However, Buckley did not request that the court allow him to complete community service in lieu of any other fines or costs.
Buckley filed a timely notice of appeal.
We originally affirmed the trial court's sentence, but when reviewed by our Supreme Court under State v. Reese, 300 Kan. ––––, 333 P.3d 149 (2014), the court found the look-back provision in effect at the time of sentencing rather than at the time of the offense applied for sentence enhancing purposes. Our decision here was reversed, the sentence was vacated, and the case was remanded to apply Reese. We will not repeat the facts and analysis of the original opinion.
Reese held as follows:
“K.S.A.2011 Supp. 8–156(j)(3) provides that the sentencing court is to take into account only those prior driving under the influence (DUI) convictions that occurred on or after July 1, 2001, and make the determination 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. Accordingly, the provisions of K.S.A.2011 Supp. 8–1567(j)(3) apply to all person who are sentenced for DUI on or after the July 1, 2001 effective date of the amended statute300 Kan. ––––, Syl. ¶ 1.
The Reese court completed its opinion by saying:
“In conclusion, we find that K.S.A.2011 Supp. 8–1567(j)(3) provides that the sentencing court is to take into account prior DUI convictions occurring during the limited look-back period 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. Accordingly, a prospective application of the amended statute would be to apply its provisions to every DUI sentencing that occurs on or after July 1, 2011, the statute's effective date. Consequently, we reverse the Court of Appeals and the district court, vacate the sentence imposed and remand with directions to resentence Reese in conformance with K .S.A.2011 Supp. 8–1567(j)(3).” 300 Kan. at ––––.
Under the above interpretation of the statute, Buckley must be resentenced to reflect that any DUI convictions prior to July 1, 2001, must not be used to determine his sentence. Application of the amendment would exclude two of his three prior DUI convictions. We, therefore, remand this matter to the district court for resentencing.
The sentences are vacated, and the case is remanded for resentencing.