Opinion
No. 108,751.
2013-10-11
STATE of Kansas, Appellee, v. Christopher M. BUCKLEY, Appellant.
Appeal from Franklin District Court; Thomas H. Sachse, Judge. 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.
Appeal from Franklin District Court; Thomas H. Sachse, Judge.
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
PIERRON, J.
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 argues 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 argues the district court 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 served prior to post-release supervision, alcohol and drug treatment, and the mandatory $2,500 fine for 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.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011); State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). Criminal statutes and penalties in effect at the time of a criminal offense are controlling. State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004). A statute operates prospectively unless its language clearly indicates a legislative intent to apply it retrospectively or the statutory change is procedural or remedial in nature and does not prejudicially affect the parties' substantive rights. State v. Jaben, 294 Kan. 607, 612–13, 277 P.3d 417 (2012).
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. Reese, 48 Kan.App.2d 87, 88–89, 283 P.3d 233 (2012) (citing 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, the Kansas 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.’ “ “ Reese, 48 Kan.App.2d at 89 (quoting Williams, 291 Kan. at 560).
The Kansas Supreme Court has held:
“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.
See also Jaben, 294 Kan. at 612–13.
Our Supreme Court has defined substantive and procedural law as follows: “ ‘As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefore; whereas procedural law is that which regulates the steps by which one who violates a criminal statute is punished. [Citation omitted.]’ “ Tonge v. Werholtz, 279 Kan. 481, 487, 109 P.3d 1140 (2005); State v. Stegman, 41 Kan.App.2d 568, 572, 203 P.3d 52 (2009).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Arnett, 290 Kan. at 47. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. State v. Urban, 291 Kan. at 216.
In Reese, the defendant was convicted of DUI prior to July 1, 2011, but sentenced after. The DUI conviction was Reese's fifth; however, he argued the statutorily amended look-back period should retroactively apply to exclude his pre–2001 DUI convictions. The Reese court determined K.S.A.2011 Supp. 8–1567(j)(3) does not apply retroactively. The court found there was nothing in the language of the statutory amendment to indicate the legislature intended it to operate retroactively. The court held that because the legislature had indicated that certain provisions should apply retroactively but did not do so for K.S.A.2011 Supp. 8–1567(j)(3), it must be considered as reflective of an intention for the look-back change to be applied prospectively only. The court further held that the statutory amendment was substantive in nature and therefore applied prospectively. Reese, 48 Kan.App.2d at 89–90.
Kansas courts have found that statutory amendments should apply prospectively in other criminal cases. In State v. Mayberry, 248 Kan. 369, 387, 807 P.2d 86 (1991), the court found that the 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. Similarly, the Court of Appeals 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).
This case is highly analogous to Reese. Buckley had three prior DUI convictions. He was arrested prior to the effective date of the amendment but sentenced after. Buckley argues the statutory amendment is procedural in nature and should apply retroactively.
The Reese court clearly stated the statutory amendment to the look-back period in K.S.A.2011 Supp. 8–1567(j)(3) is substantive in nature. The court further held there is nothing in the language of the statutory amendment to indicate the legislature intended it to act retroactively. Moreover, the legislature clearly indicated that certain provisions of the act should apply retroactively, but did not do so for K.S.A.2011 Supp. 8–1567(j)(3). Reese, 48 Kan.App.2d at 89–90.
Buckley argues that when a legislative act directly addresses a previous appellate court ruling, it clearly communicates the legislature's intent. Buckley asserts the legislature intended the amendment to apply retroactively alleging the amendment was in response to the Kansas Supreme Court's ruling in State v. Sedillos, 279 Kan. 777, 112 P.3d 854 (2005). In support of this proposition, Buckley relies on State v. Dalton, 41 Kan.App.2d 792, 207 P.3d 257 (2008). However, this court recently examined its holding in Dalton and found it had been effectively overruled by the Kansas Supreme Court. State v. Moore, No. 105,851, 2012 WL 2045359 at *3 (Kan.App.2012) (unpublished opinion) (stating that Dalton had been overruled by State v. Snellings, 294 Kan. 149, 273 P.3d 739 [2012];State v. Adams, 294 Kan. 171, 273 P.3d 718 [2012] ).
Although Reese is not final at this time because a petition for review is pending, we find its arguments persuasive, as have other panels on this court. Buckley's arguments are unavailing in light of Reese. As the Kansas Supreme Court stated and this court subsequently reiterated: “ ‘[H]aving the penalty parameters for an offense “fixed as of the date of the commission of the offense is fair, logical, and easy to apply.” ‘ “ Reese, 48 Kan.App.2d at 89 (quoting Williams, 291 Kan. at 560). The statutory amendment is substantive in nature and therefore operates prospectively. Nothing in the language of the statute suggests the legislature intended it to apply retroactively. In fact, the legislature explicitly stated that other provisions in the act should apply retroactively indicating the intent that the statutory amendment should not. Reese, 48 Kan.App.2d at 89–90. The language of the statute is plain and unambiguous, and we will not read into the statute something not readily found in it. We need not resort to further statutory construction. Urban, 291 Kan. at 216.
Buckley was appropriately sentenced under the penalty parameters in place as of the date of the offense. The district court correctly determined that K.S.A.2011 Supp. 8–1567(j)(3) did not apply retroactively. The district court properly denied Buckley's motion to prohibit the use of his pre–2001 DUI convictions in his criminal history.
Buckley next argues the district court abused its discretion when considering his financial resources during sentencing and ordered him to pay the mandated fine of $2,500 for a fourth or subsequent DUI conviction without presenting the alternative of community service.
This issue does not require the interpretation of the statute; rather, the question is whether the district court appropriately sentenced Buckley given the statutory requirements. The standard of review is abuse of discretion, which is whether any reasonable person would have taken the view adopted by the district court. See State v. Backus, 295 Kan. 1003, 1015, 287 P.3d 894 (2012) (citing State v. Mondragon, 289 Kan. 1158, 1160–61, 220 P.3d 369 [2009] ).
K.S.A.2010 Supp. 8–1567(g)(1) mandates a $2,500 fine on fourth or subsequent DUI convictions. Under K.S.A.2010 Supp. 8–1567(j), a sentencing court has discretion to allow a defendant to complete community service at a rate of $5 per hour in lieu of payment of the fine. K.S.A. 21–4607(3) requires that a sentencing court take into account the defendant's financial resources and the burden the payment will impose when determining the amount and method of payment of a fine.
The issue of mandatory statutory fines in DUI cases was addressed in State v. Copes, 290 Kan. 209, 219–220, 224 P.3d 571 (2010). The Kansas Supreme Court held that the $2,500 fine for a fourth or subsequent DUI conviction is mandated by the statute and the sentencing judge does not have discretion to alter the amount of the fine. However, the sentencing judge must take into account the defendant's financial resources in determining the method of payment. Copes, 290 Kan. at 219–220, 223.
In this case, the district court ordered Buckley to pay the mandatory $2,500 fine. The judge inquired as to Buckley's financial situation and was advised by counsel that Buckley was unemployed and facing bankruptcy and foreclosure on his home. On that basis, the judge waived reimbursement of attorney's fees.
It appears the requirements of K.S.A. 21–4607(3) as set out in State v. Copes, 290 Kan. 1223, have not been met:
“[W]e hold that a district court must take into account the defendant's financial resources and the burden of the fine when considering the method of payment of a fine for a fourth or subsequent DUI offense, i.e., whether the defendant must pay a monetary fine or provide community service under K.S.A.2009 Supp. 8–1567(j)....
“In summary, regardless of Copes' financial resources, the district court was correct to impose the entire $2,500, a mandatory fine, for her fourth DUI conviction. But the legislature clearly contemplated the notion of financial hardship or the burden of payment by allowing the discretionary imposition of community service (credit of $5 per hour) to offset the total amount due. By failing to consider Copes' ability to pay and the burden the payment will impose on her, the district court bypassed the consideration of whether community service was an option for her.”
We remand to the district court for consideration of Buckley's financial resources with respect to the method of payment of the DUI fine.
Affirmed in part, vacated in part, and remanded with directions.