Opinion
No. 107,741.
2014-12-5
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., PERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Steven Cox appealed 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). We originally affirmed, finding Cox had been properly sentenced for a fourth or subsequent DUI conviction in State v. Cox, No. 107,741, 2013 WL 2321173 (Kan.App.2013) (unpublished opinion). Cox filed a petition for review with the Supreme Court, which was granted October 20, 2014.
In State v. Reese, 300 Kan. ––––, Syl., 333 P.3d 149 (2014), our Supreme Court held that the amended look-back provision in effect at the time of sentencing on or after July 1, 2011, rather than the one in effect at the time of the offense, applied for DUI sentence enhancement purposes. Our decision in Cox was reversed, the sentence was vacated, and the case was remanded to apply Reese. We will not repeat the facts and analysis of our original opinion.
Suffice it to say under Reese:
“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. According, the provisions of K.S.A.2011 Supp. 8–1567(j)(3) apply to all person who are sentenced for DUI on or after date of the amended statute.” 300 Kan. –––– Syl.
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 ––––, 33 P.3d at 154.
Under the above interpretation of the statute, Cox 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 four prior DUI convictions. We, therefore, remand this matter to the district court with these directions.
Sentence vacated and case remanded for resentencing.