Opinion
No. 106,265.
2012-06-1
STATE of Kansas, Appellee, v. Scott Dwight JEFFERSON, Appellant.
Appeal from Finney District Court; Philip C. Vieux, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Linda J. Lobmeyer, assistant county attorney, John P. Wheeler, Jr ., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Philip C. Vieux, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Linda J. Lobmeyer, assistant county attorney, John P. Wheeler, Jr ., county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Scott Dwight Jefferson appeals his sentence for one count of driving under the influence, his fourth or subsequent offense, in violation of K.S.A. 8–1567(g). On appeal, Jefferson contends that the trial court erroneously included a prior municipal court DUI conviction in his criminal history because the municipal court lacked subject matter jurisdiction. We agree; however, we affirm Jefferson's sentence because although it was error to include the municipal court conviction in Jefferson's criminal history for sentencing purposes, that error was harmless. If the trial court had properly excluded that conviction, Jefferson still would have been charged with a fourth or subsequent DUI conviction. Jefferson also argues that the trial court failed to consider his financial resources and the nature of the burden imposed when it determined the method of payment of the mandatory fine. We agree. Therefore, we vacate the fine and remand the case with instructions.
On February 14, 2011, Jefferson pled no contest to one count of driving under the influence (DUI), his fourth or subsequent offense. In exchange for his plea, the State agreed to dismiss the second charge for driving while suspended and also agreed to recommend a sentence of 300 days.
At sentencing, the trial court stated that this conviction was Jefferson's tenth DUI conviction based upon his Pre–Sentencing Investigation (PSI) report. The trial court sentenced Jefferson to a 365–day jail sentence, followed by 12 months of postrelease supervision. The trial court also imposed a mandatory fine of $2,500. Did the Trial Court Err in Including in Jefferson's Criminal History a Prior Municipal Court DUI Conviction that was Void for Lack of Subject Matter Jurisdiction?
On appeal, Jefferson contends that one of his prior municipal court DUI convictions is void for lack of subject matter jurisdiction. Jefferson maintains that the court's use of this conviction to increase his sentence was improper and that this case should be remanded for a new sentence. Whether jurisdiction exists is a question of law over which this court has unlimited review. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006).
Jefferson did not object at the sentencing hearing to the use of the municipal DUI conviction. Normally, issues not raised before the trial court cannot be raised on appeal; however, because an objection based on lack of subject matter jurisdiction can be made at any time, this issue is properly before our court. See Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007).
Jefferson contends that his 2001 municipal court DUI conviction is void because the municipal court lacked jurisdiction to convict him. Thus, Jefferson maintains that this conviction should not have been considered for sentencing purposes. To support his argument, Jefferson relies on State v. Elliott, 281 Kan. 583, 588, 133 P.3d 1253 (2006).
In Elliott, the defendant was convicted in the trial court of a third or subsequent DUI offense. Before sentencing, the defendant challenged four prior municipal court DUI convictions which were included in his criminal history for sentencing. The defendant argued that the municipal court lacked jurisdiction over two of those convictions because the offenses should have been classified as felonies rather than misdemeanors. Our Supreme Court agreed and found that the municipal court lacked jurisdiction over the defendant's third and fourth DUI offenses and that they could not be used to enhance his sentence in the present case. 281 Kan. at 587. The Elliott court also found that such municipal court convictions were void. 281 Kan. at 590–92.
Here, the PSI indicated that Jefferson was charged with a fourth or subsequent DUI. There is some argument over the exact number of prior DUI convictions, but according to the PSI, it seems that Jefferson actually had 10 prior DUI convictions. He was sentenced to 1 year in county jail and 1 year of postrelease supervision, and was fined $2,500.
Based upon the rationale of Elliott, we find that Jefferson's municipal court conviction was a felony under K.S.A. 8–1567 and therefore the municipal court lacked jurisdiction to try the case. Thus, for sentencing purposes, this conviction must be considered void for lack of subject matter jurisdiction.
The State concedes that the municipal court lacked subject matter jurisdiction and that Jefferson's 2001 DUI conviction should not have been included in his criminal history; however, the State contends that this error was harmless because even without the 2001 conviction Jefferson would still be sentenced under K.S.A. 8–1567(g). On the other hand, Jefferson argues that the error was not harmless because the judge sentenced him to the maximum sentence based on the amount of prior convictions he had, and therefore, if this conviction had been properly excluded, maybe the trial judge would not have sentenced him to the maximum sentence.
Although it was error to include the municipal court conviction in Jefferson's criminal history for sentencing purposes, that error was harmless. If the trial court had properly excluded that conviction, Jefferson still would have been charged with a fourth or subsequent DUI conviction. Changing Jefferson's overall convictions from 10 to 9 would likely not have been enough to persuade the trial judge to reduce his sentence. Thus, we affirm Jefferson's sentence. Did the Trial Court Err in Imposing a Fine for the DUI Conviction Without Making the Necessary Financial Inquiries?
Next, Jefferson contends that it was error for the trial court to not consider his financial resources and the nature of the burden that payment of the fine would impose before ordering him to pay a $2,500 DUI fine.
This is an issue of statutory interpretation, which is a question of law over which appellate courts have unlimited review. See State v. Raschke, 289 Kan. 911, Syl. ¶ 3, 219 P.3d 481 (2009).
Jefferson relies on State v. Copes, 290 Kan. 209, 224 P.3d 571 (2010). In Copes, our Supreme Court held that a trial 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).” 290 Kan. at 223. The Copes court further explained that although the fine is mandatory, the method of payment requires further consideration by the trial court. 290 Kan. at 223.
Here, the trial court correctly imposed the required fine for Jefferson's fourth or subsequent DUI conviction, but it failed to consider Jefferson's financial circumstances for the method of payment. After the trial judge imposed the fine, Jefferson's attorney asked if Jefferson would be able to pay the fines through community service. The trial judge responded: “Yes. If that becomes necessary.” At this point, the trial judge should have inquired into Jefferson's financial circumstances to determine whether it was necessary for Jefferson to pay the fine through community service rather than simply saying that it was an option if it was necessary. It is the trial court's job to determine whether paying a fine through community service is necessary. The trial court failed to make that determination in this case.
It is also important to note that in State v. Grebe, 46 Kan.App.2d 741, Syl. ¶¶ 3–4, 264 P.3d 511 (2011), this court held that the trial court did not err by failing to consider the community service alternative where the defendant received a 59–month jail sentence and could not possibly perform community service within 12 months of sentencing. See K.S.A.2010 Supp. 8–1567(j). But here, Jefferson received a 12–month jail sentence for his DUI conviction. Jefferson was also given credit for 17 days in county jail which reduced his sentence to just less than 1 year. Because Jefferson's sentence was slightly less than 1 year, there is a possibility that he could complete the community service within the 1–year time period. Therefore, we will not apply the Grebe rationale to this case. See State v. Kent, No. 105,118, unpublished opinion filed January 27, 2012 (The court did not apply the Grebe rationale because the defendant was sentenced to 12 months in jail and the court held that the defendant may qualify for a work release program which would allow him to perform community service in lieu of a fine).
Thus, the fine is vacated and the case is remanded for reconsideration of the method of payment in light of Copes.
Affirmed in part, fine vacated, and case remanded with instructions.