Opinion
No. 107,050.
2014-11-26
STATE of Kansas, Appellee, v. Jason Edward EBERLEIN, Appellant.
Appeal from Johnson District Court; Stephen R. Tatum, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Review Denied February 19, 2015.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
On October 20, 2014, the Kansas Supreme Court summarily vacated our decision in this case and remanded to us for reconsideration in light of State v. Reese, 300 Kan. ––––, 333 P.3d 149 (2014), holding that a 2011 amendment to K.S.A. 8–1567 governing enhanced punishment of repeat driving-under-the-influence offenders based on their past DUI convictions should be applied to all sentences imposed after its effective date. For Defendant Jason Edward Eberlein that means he should be sentenced for a third DUI offense rather than a fourth offense. We, therefore, vacate Eberlein's sentence and remand to the Johnson County District Court for resentencing in conformity with Reese, 333 P.3d 149, Syl.
On December 22, 2010, Eberlein was stopped and arrested for driving under the influence in violation of K.S.A.2010 Supp. 8–1567. He was duly charged with DUI in the district court and appeared for sentencing on November 1, 2011. In the district court, Eberlein argued he should be sentenced in conformity with an amendment to K.S .A. 8–1567 that became effective July 1, 2011, and counted only DUI convictions entered on or after July 1, 2001, for sentencing purposes. Under K.S.A. 8–1567, defendants with past DUI convictions receive increased punishments in their current cases. If the amendment were applied to Eberlein, his DUI conviction in 1999 could not be used to enhance his punishment. Only a pair of convictions from 2004 could be counted. The district court declined to apply the amendment to Eberlein, consistent with Kansas authority generally recognizing that defendants should be sentenced based on the statutory punishments in effect when they commit their crimes. See State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010).
Eberlein appealed. This panel affirmed the district court and relied on State v. Reese, 48 Kan.App.2d 87, 89, 283 P.3d 233 (2012), to do so. The Reese decision applied the rule recognized in Williams to reject arguments that the 2011 amendment to K.S.A. 8–1567 should govern sentences for DUI offenses committed before its effective date. Earlier this year, the Kansas Supreme Court reversed this court's decision in Reese based on the language of the self-contained sentencing scheme in K.S.A. 8–1567. Under that scheme, DUI defendants should be sentenced in conformity with the 2011 amendments—counting only convictions after July 1, 2001, in determining enhanced punishments for repeat offenders—even if the current violation happened before the amendments went into effect.
Eberlein also sought review of his case in the Kansas Supreme Court. His circumstance is legally indistinguishable from that in Reese. Accordingly, the court granted review, vacated our decision, and remanded to us. In turn, we now vacate the sentence and send the case back to the district court so that Eberlein may be resentenced in conformity with the 2011 amendment to K.S.A. 8–1567 and with Reese.
Sentence vacated and remanded with directions.