Opinion
No. 107873.
01-16-2015
STATE of Kansas, Appellee, v. Richard A. MOLLENTINE, Appellant.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant.
Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Richard Mollentine was tried for a 2008 DUI offense in late 2011. He stipulated to the facts of the case and acknowledged that he had two prior DUI convictions from before 2001. Mollentine argued that the two prior convictions should not increase his sentence for the 2008 offense because the legislature had enacted a statute, K.S.A.2011 Supp. 8–1567(j)(3), providing that pre–2001 DUI convictions would no longer count as prior offenses for sentencing purposes. The district court rejected Mollentine's argument and found him guilty of the third DUI offense. We affirmed the district court's decision.
On October 20, 2014, the Kansas Supreme Court vacated our decision and remanded to us for reconsideration in light of State v. Reese, 300 Kan. 650, 333 P.3d 149 (2014). The Supreme Court held in Reese that K.S.A.2011 Supp. 8–1567(j)(3) applies to all persons who are sentenced for DUI on or after July 1, 2011, the effective date of the amended statute. Under Reese, Mollentine's pre–2001 DUI convictions should not have been considered during his sentencing. We therefore vacate Mollentine's sentence and remand to the district court for resentencing to conform with Reese, 300 Kan. 650, Syl.
Mollentine committed the current DUI offense in February 2008 while driving in Wyandotte County. Police witnessed Mollentine speeding and driving erratically. Upon stopping the vehicle, officers gave Mollentine a breath test, which showed a blood-alcohol content of 0.134. Mollentine stipulated to the facts of the case and to the fact that he had two prior DUI offenses from before 2001. The district court treated the 2008 offense as Mollentine's third offense over Mollentine's objections that doing so violated K.S.A.2011 Supp. 8–1567(j)(3). That statute had been amended in 2011 and provided, effective July 1, 2011, that only DUI convictions entered on or after July 1, 2001, counted as prior convictions for sentencing purposes. The district court denied Mollentine's request and sentenced Mollentine for a felony DUI in November 2011.
Mollentine filed a timely appeal, and we affirmed the district court, relying on State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012). The Reese decision rejected retroactivity as inconsistent with settled Kansas authority on changes in sentencing statutes. But the Kansas Supreme Court reversed this court's decision in Reese. The Kansas Supreme Court examined the statutory language in K.S.A.2011 Supp. 8–1567(j)(3) and ultimately found that the “plain statutory language and the unique nature of the DUI sentencing scheme dictate[s] 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.” 333 P.3d at 150. The Supreme Court held 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 offense before that date. 333 P.3d at 154.
K.S.A.2011 Supp. 8–1567(j)(3) provides that “[f]or the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section ... only convictions occurring on or after July 1, 2001, shall be taken into account....” Under Reese, DUI defendants should be sentenced using the 2011 amendments even if the violation at issue occurred before the amendments went into effect. This interpretation of the statute means that the look-back provision in effect at the time of sentencing, rather than the time of offense, applies for sentencing purposes. Thus, even though Mollentine's current DUI charge occurred in 2008 (long before the amendment went into effect), the provisions in the amendment apply to his sentencing in late 2011, and his pre–2001 DUI convictions cannot be counted.
We therefore vacate Mollentine's sentence and remand his case to the district court for resentencing to conform with K.S.A.2011 Supp. 8–1567 and Reese.