Opinion
No. 106,992.
2013-05-2
STATE of Kansas, Appellee, v. William J. LAHODNY, Appellant.
Appeal from Washington District Court; Kim W. Cudney, Judge. Carl Folsom, III, of Bell Folsom, P.A., of Olathe, for appellant. Elizabeth A.B. Hiltgen, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Washington District Court; Kim W. Cudney, Judge.
Carl Folsom, III, of Bell Folsom, P.A., of Olathe, for appellant. Elizabeth A.B. Hiltgen, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
BUSER, J.
William J. Lahodny pled no contest to the felony offense of driving under the influence of alcohol (DUI), his third DUI offense. For the first time on appeal, Lahodny asks us to vacate his felony DUI sentence and remand for resentencing. Finding no error, we affirm the sentence.
Factual and Procedural Background
The State of Kansas charged Lahodny with felony DUI, transporting an open container, failing to stop at a stop sign, speeding, illegal vehicle registration, and no liability insurance. The felony DUI was alleged to have occurred on December 4, 2009, in Washington County. In the charging document, the State charged the crime as Lahodny's “third offense” in violation of K.S.A.2009 Supp. 8–1567 and cited the penalty section as K.S.A. 8–1567(f). Lahodny retained counsel, and counsel entered her appearance.
Lahodny appeared with counsel for the preliminary hearing and announced he would waive the hearing. The trial court questioned Lahodny and found he had “knowingly, freely and voluntarily with advice of competent counsel made this waiver.” The trial court then set the matter for arraignment.
Before arraignment, however, Lahodny moved to dismiss the felony DUI charge or to amend it to a misdemeanor. Lahodny contended the waiver of counsel forms he had signed in his two prior DUI prosecutions were inadequate. After a hearing, the district court held a prior DUI prosecution in Republic County District Court should be counted because it resulted in a diversion, not incarceration. The district court held a prior DUI prosecution in Concordia Municipal Court should be counted because, in addition to the signed waiver, “the Municipal Judge signed the documents stating that the waiver of counsel was approved after explanation of right of representation.”
The district court then arraigned Lahodny on all charges. Subsequently, Lahodny and the State conducted plea negotiations which resulted in a “Tender of Plea of No Contest (Nolo Contendere)” signed by Lahodny. The document recited that the “negotiations have been conducted with an acknowledgment by me that the State can establish sufficient facts to prove me guilty of the ... charges.”
Lahodny and the State agreed that he would plead no contest to “Count 1, Driving Under the Influence of Alcohol, in violation of K .S.A. 8–1567(a)(1), third offense, an unclassified felony; and Count 6, failure to maintain liability insurance.” The State agreed to dismiss the remaining counts with prejudice and not to file additional charges relating to the matter. The State also agreed to recommend that Labodny receive work release after serving 48 hours on the felony DUI sentence.
Lahodny acknowledged in writing that the district court would “convict me of the charges to which I am pleading.” He was “fully cognizant and aware of the sentencing possibilities resulting from conviction,” including for Count 1, which was identified as “Driving Under the Influence of Alcohol, third offense, in violation of K.S.A. 8–1567(a)(1).” Lahodny also stated his “attorney has explained to me ... I am entering a plea to one unclassified felony [DUI] and one class B nonperson misdemeanor.” Lahodny stated his understanding that any appeal would be “limited to contesting a departure sentence, or based upon claims of partiality, prejudice, oppression, or corrupt motive, or claims challenging the crime severity ranking or criminal history.”
Lahodny appeared with counsel at the plea hearing. The district court asked, “Is it your desire today to enter a plea on Count 1, which is the DUI, third offense?” Lahodny said it was. The district court informed him that he had “been charged with driving under the influence of alcohol, an unclassified, non-person felony.” The district court repeated, “This has been charged as a third offense.” Lahodny pled no contest to the crime.
While reciting the potential sentence, the district court repeated again: “In this matter, Mr. [Lahodny], the Count 1 is an unclassified, non-person felony.” Lahodny said he understood. The district judge further established Lahodny's understanding “that if the Court accepts your plea of no contest, I will accept the facts as stated by the County Attorney as true, and that you are not contesting those facts.” The State next recited the factual basis for the charges, including that Lahodny had “two prior DUI convictions, making the current a third offense.” After additional inquiry of Lahodny, the district court accepted the pleas and dismissed the remaining charges.
The presentence investigation (PSI) report showed both of Lahodny's prior DUI misdemeanor offenses. The Republic County District Court case was designated as “DUI, 1st offense.” The Concordia Municipal Court case was designated as “DUI, 2nd offense.” The PSI report set Lahodny's criminal history score at I, clarifying that the two prior DUI misdemeanor convictions were being used for “Enhancement/Element/Elevation” of the charged crimes.
Lahodny appeared with counsel for sentencing. The district court informed Lahodny of the crimes to which he had pled, including “driving under the influence, a third offense, a non-person, non-grid felony.” The district court asked Lahodny, “Do you wish to withdraw your plea?” Lahodny answered, “No, Your Honor.”
The district court asked Lahodny if he had had sufficient time to discuss sentencing with his counsel and whether he had further questions. Lahodny said he had had sufficient time and had no further questions. The district court noted, “the primary offense is driving under the influence, a third offense. This is a non-grid, non-person felony. The criminal history score is I.” Lahodny did not object to this recitation, and his counsel indicated no objection to the PSI report generally.
The district court imposed sentences generally in keeping with the plea agreement. Lahodny was sentenced to 1 year in jail for the felony DUI, but the court allowed him to serve the mandatory 90 days on work release after 5 days imprisonment. A 1–year probation was also granted. Lahodny appeals his felony DUI sentence.
Analysis
On appeal, Lahodny now contends “the felony sentence he received is illegal because it is based upon uncounseled prior DUI convictions.” We have unlimited review to determine if Lahodny's sentence is illegal. See State v. Jones, 292 Kan. 910, 914, 257 P.3d 268 (2011), cert. denied132 S.Ct. 1097 (2012).
In Kansas, it is well settled that “[a]n illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which its to be served.” 292 Kan. 910, Syl. ¶ 3.
A “felony sentence,” as Lahodny puts it, could only be a sentence for a felony conviction. But no direct appeal “shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere.” K.S.A. 22–3602(a). Only where a defendant appeals the denial of a motion to withdraw plea does an appellate court gain jurisdiction over the conviction itself. See State v. Williams, 37 Kan.App.2d 404, Syl. ¶¶ 2–3, 153 P.3d 566,rev. denied 284 Kan. 951 (2007). Because Lahodny did not move for withdrawal of his no contest plea to felony DUI, we lack jurisdiction over the conviction itself. And even if we had jurisdiction over the conviction, Lahodny concedes that “his conviction for DUI is valid.” We therefore have no basis to treat the conviction as invalid.
Given the unquestioned validity of Lahodny's felony DUI conviction, it is apparent that Lahodny's sentence for a felony DUI conformed to the statutory provisions. See K.S.A.2009 Supp. 8–1567(f)(1). Lahodny does not contend that the district court lacked jurisdiction or that his sentence was ambiguous. He, therefore, makes no showing of an illegal sentence. See Jones, 292 Kan. 910, Syl. ¶ 3.
We also do not see a substantive basis for appellate relief. Because it is not disputed that Lahodny obtained diversion in the Republic County District Court DUI case, that offense was properly counted below. In a misdemeanor case, “[t]he right to counsel arises at the stage of the proceedings where guilt is adjudicated, eligibility for imprisonment is established, and the prison sentence determined.” State v. Youngblood, 288 Kan. 659, Syl. ¶ 2, 206 P.3d 518 (2009). In the Republic County case, Lahodny's guilt was never established, he was never sentenced, and his eligibility for imprisonment was never determined. As a result of his successful diversion from the criminal justice system, Lahodny's prosecution never reached any of those stages of the proceeding which would have triggered the right to counsel. See Paletta v. City of Topeka, 20 Kan.App.2d 859, Syl., 893 P.2d 280,rev. denied 258 Kan. 859 (1995) (“An uncounseled DUI diversion agreement may be used to enhance sentencing in a subsequent DUI conviction, so long as no imprisonment was imposed as a result of the uncounseled diversion agreement,”).
Lahodny was convicted and sentenced of DUI in the later Concordia Municipal Court case, so he did have a right to counsel in that proceeding. But the record contains a pleading from that case signed by Lahodny stating he “waives the right to representation by an attorney appointed by the Court or by an attorney hired by [Lahodny], and consents to enter a plea to the pending charges without representation by an attorney.” Importantly, it also contains an order by the municipal judge stating Lahodny “[h]ad the charges read to him,” had the “possible penalties ... recited to [him] by the court,” and that Lahodny understood the rights he would forfeit by entering a plea, including his “[r]ight to counsel .”
We believe this waiver met the requirements of In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 208–09, 708 P.2d 977 (1985); see State v. Hughes, 290 Kan. 159, Syl. ¶ 3, 224 P .3d 1149 (2010) ( Gilchrist “did not mandate that waivers of counsel obtained in municipal courts contain the exact language of its sample.”). In the Concordia Municipal Court case, therefore, the State met its burden to show Lahodny was advised of his right to counsel and that he knowingly and intelligently waived that right. See Youngblood, 288 Kan. 659, Syl. ¶ 1.
Affirmed.