Opinion
No. 110795.
06-05-2015
STATE of Kansas, Appellee, v. Holly Jean KRAXNER, Appellant.
Thomas J. Bath and Tricia A. Bath, of Bath & Edmonds, P.A., of Overland Park, for appellant. Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Thomas J. Bath and Tricia A. Bath, of Bath & Edmonds, P.A., of Overland Park, for appellant.
Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in State v. Kraxner, No. 110,795, 2014 WL 2619397 (Kan.App.2014) (unpublished opinion), filed on June 6, 2014, Holly Jean Kraxner filed a petition for review. On May 13, 2015, our Supreme Court granted the petition for review and remanded this case to the Court of Appeals for reconsideration of Kraxner's challenge to her sentence in light of State v. Reese, 300 Kan. 650, Syl. ¶ 1, 333 P.3d 149 (2014). The only issue on appeal is whether the district court erred in failing to retroactively apply K.S.A.2011 Supp. 8–1567(j)(3).
We will briefly review the facts. Following a bench trial, the district court convicted Kraxner of driving under the influence (DUI). The DUI was committed on September 23, 2010. Kraxner's presentence investigation report indicated that she had two prior DUI convictions, both in 1998. On September 20, 2013, the district court sentenced Kraxner as a third-time DUI offender. The district court rejected Kraxner's argument that she should be sentenced as a first-time DUI offender under K.S.A.2011 Supp. 8–1567(j)(3), which went into effect on July 1, 2011, and provided that “only convictions occurring on or after July 1, 2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” L.2011, ch. 105, sec. 19. Kraxner timely appealed.
On appeal, Kraxner argued that the district court erred in failing to retroactively apply K.S.A.2011 Supp. 8–1567(j)(3). This court noted that another panel of our court had rejected a similar argument in State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012). Kraxner, 2014 WL 2619397, at *1. In Reese, the defendant was arrested for DUI on July 3, 2009, but he was not convicted of the offense until June 6, 2011. His sentencing was held on August 10, 2011, and a presentence investigation report identified four prior DUI convictions, all prior to July 1, 2001. The district court sentenced the defendant as a fourth or subsequent DUI offender.
On appeal, the Reese court noted a fundamental rule of criminal procedure in Kansas is that a defendant is sentenced based on the law in effect when the crime was committed. 48 Kan.App.2d at 89. The Reese court also noted the fundamental rule that a statute operates prospectively unless either the language clearly indicates that the legislature intended the statute to apply retroactively or the change is procedural only and does not prejudicially affect the substantive rights of the parties. 48 Kan.App.2d at 89. Applying these fundamental rules to K.S.A.2011 Supp. 8–1567(j)(3), the Reese court concluded that the district court did not err in refusing to apply the new look-back provision in the amended statute to the defendant's case. 48 Kan.App.2d at 91.
Based on Reese, this court rejected Kraxner's argument that the new look-back provision should have been retroactively applied to her case. Kraxner, 2014 WL 2619397, at *4. Accordingly, this court affirmed the district court's decision to sentence Kraxner as a third-time DUI offender. 2014 WL 2619397, at *4.
However, on August 29, 2014, our Supreme Court reversed this court's decision in Reese. In its analysis, the court examined the nature of the DUI statutory scheme, its historical development, and how prior offenses have historically been handled. The court also examined the statutory language employed in K.S.A.2011 Supp. 8–1567(j). Ultimately, our Supreme Court found that “the plain statutory language and the unique nature of the DUI sentencing scheme dictate that the number of prior DUI convictions applicable to the current DUI sentence is to be calculated at the time of sentencing on the current conviction.” 300 Kan. at 651. Our Supreme Court went on to hold that the provisions of K.S.A.2011 Supp. 8–1567(j)(3) apply to all persons who are sentenced for DUI on or after July 1, 2011, the effective date of the amended statute, even if the person committed the DUI before that date. 300 Kan. at 658–59.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The Kansas Supreme Court's decision in Reese controls the outcome of Kraxner's appeal. K.S.A.2011 Supp. 8–1567(j)(3) provides that the sentencing court is to take into account only those prior DUI convictions that occurred on or after July 1, 2001, 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. Reese, 300 Kan. at 658–59. Here, the district court erred in sentencing Kraxner as a third-time DUI offender. Because Kraxner's two prior DUI convictions occurred before July 1, 2001, she should be resentenced as a first-time offender under the amended DUI law.
Reversed and remanded with directions.