Opinion
No. 107,741.
2013-05-17
STATE of Kansas, Appellee, v. Steven W. COX, Appellant.
Appeal from Pottawatomie District Court; Jeffrey R. Elder, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jason B. Oxford, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Pottawatomie District Court; Jeffrey R. Elder, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jason B. Oxford, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Steven Cox appeals his sentence for driving under the influence (DUI) and the district court's denial of his motion to retroactively apply the look-back provisions of K.S.A.2011 Supp. 8–1567(j)(3). This recent amendment provides that only convictions occurring on or after July 1, 2001, are to be considered in determining whether a defendant's DUI conviction is a first, second, third, fourth, or subsequent conviction. We affirm, finding Cox was properly sentenced for a fourth or subsequent DUI conviction.
On July 29, 2010, an officer responding to an injury accident found a motorcycle lying on its side with Cox beside it. He was arrested and charged with a felony DUI, fifth offense, in violation of K.S.A.2010 Supp. 8–1567(g). Cox ultimately pled no contest. Before sentencing, Cox filed a motion asking the district court to retroactively apply the new look-back provision of K.S.A.2011 Supp. 8–1567(J)(3) and strike any prior DUI convictions that occurred prior to July 1, 2001. Application of the amendment would exclude two of his four prior DUI convictions. The district court rejected Cox's arguments and sentenced him based on the penalties applicable to a fourth or subsequent felony DUI offense.
On appeal, Cox argues the amendment was in response to the decision in State v. Sedillos, 279 Kan. 777, 112 P.3d 854 (2005), demonstrating a clear intent that only convictions after July 1, 2001, should be considered. Alternatively, Cox suggests the amendment was a procedural change that applies retroactively and is further supported by the United States Supreme Court's recent decision in Dorsey v. United States, 567 U.S. ––––, 132 S.Ct. 2321, 183 L. Ed 2d 250 (2012).
Our court has rejected similar arguments in State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012), petition for review filed September 4, 2012. The Reese decision thoroughly considered the issue and found retroactivity would be inconsistent with settled Kansas law—a criminal defendant is to be sentenced based on the statutory penalties in effect at the time of the offense, and a statute operates prospectively unless the language clearly indicates the legislature intended the statute to be applied retroactively or the change is procedural only and does not prejudice the substantive rights of the defendant. 48 Kan.App.2d at 89 (citing State v. Williams, 291 Kan. 554, 557, 559–60, 244 P.3d 667 [2010] ). Furthermore, it is doubtful the legislature passed the amendment in response to Sedillos, which was decided over 5 years earlier and dealt with a previous amendment to the DUI statute.
In Dorsey, the Supreme Court's held the new more lenient sentencing provisions that addressed the sentencing disparity between crack and powder cocaine should apply to offenders who committed their crimes before the law changed but were sentenced after the effective date. 132 S.Ct. at 2326. But that decision was reached based on various considerations that are not applicable to the amendment at issue here.
We affirm the district court's decision to sentence Cox based on the penalties in effect at the time he committed the offense.
Affirmed.