Opinion
No. 108,240.
2015-01-16
STATE of Kansas, Appellee, v. Wade RICHARDS, Appellant.
Appeal from the Sedgwick District Court, Jeffrey Syrios, Judge.Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant.Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from the Sedgwick District Court, Jeffrey Syrios, Judge.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Richards was convicted of driving under the influence eight times between 1975 and 1998. In March 2011, after an alcohol-related motorcycle accident, he again pled guilty to driving under the influence and was sentenced to felony driving under the influence for a fourth or additional time. On appeal, Richards argued that the district court should have applied K.S.A.2011 Supp. 8–1567(j)(3), which says that only DUI convictions obtained after July 1, 2001, should be counted against an offender for sentence-enhancement purposes and that the court thus should have found that his 2011 offense was only his first DUI offense under the statute. But we held that the district court correctly sentenced Richards because K.S.A.2011 Supp. 8–1567(j)(3) was not the law at the time of his accident, and the law at that time, K.S.A.2010 Supp. 8–1567(o)(3), instructed the district court to count all of an offender's DUI convictions regardless of when the offender incurred them.
In 2014, in State v. Reese, 300 Kan. 650, Syl., 333 P.3d 149 (2014), the Kansas Supreme Court disagreed with our analysis and held that K.S.A.2011 Supp. 8–1567(j)(3) applied to all defendants sentenced after July 1, 2011. In light of Reese, the Kansas Supreme Court granted Richards' petition for review and remanded his case to this court to determine whether K.S.A.2011 Supp. 8–1567(j)(3) should have governed which DUIs were counted to enhance his sentence. Because the amendment became effective before Richards was sentenced and because he was sentenced for a fourth or additional DUI offense when he had only a single DUI offense after 2001, we vacate his sentence and remand his case to the district court for resentencing.
Factual and Procedural Background
Richards pled guilty to driving under the influence after an alcohol-related accident in March 2011. The presentence-investigation report into Richards' criminal history revealed that Richards had been convicted eight other times for driving under the influence of alcohol, most recently in 1998. Accordingly, the district court sentenced Richards for felony driving under the influence for a fourth or additional time.
Richards appealed. He argued that his 2011 conviction should have counted as his first conviction because a 2011 amendment to the DUI-sentencing statute said that courts should take into account only DUI offenses that have occurred after July 1, 2001, when determining the number of DUI convictions they can use to enhance an offender's sentence. See K.S.A.2011 Supp. 8–1567(j)(3). But the provision Richards wanted this court to apply did not go into effect until July 2011, and the law that usually controls the punishment associated with an offender's crime is the law in effect at the time a crime is committed. See State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010). Accordingly, we found that the district court had correctly sentenced Richards when it enhanced his sentence using all of his DUI offenses. State v. Richards, No. 108,204, 2013 WL 4404182, at *2–4 (Kan.App.2013) (unpublished opinion), rev. granted in part and op. vacated in part November 13, 2014.
Richards also argued that the district court erred by not ordering a competency hearing to ensure that he understood the sentence he received after the court became aware that he suffered from a brain aneurysm and posttraumatic stress disorder. We likewise affirmed the district court's decision not to order a competency hearing because the record indicated that, despite some speech impediments, Richards was able to understand the nature of the proceedings and present a coherent defense. We therefore affirmed the district court. 2013 WL 4404182, at *4–6.
Richards petitioned the Kansas Supreme Court for review. On November 14, 2014, the Kansas Supreme Court granted Richards' petition as to his first issue only: that the district court erred by counting DUIs he incurred before 2001 when it tabulated the number of DUIs he had under the DUI statute. Further, the Kansas Supreme Court vacated the portion of our opinion that held that the DUI statute—K.S.A.2011 Supp. 8–1567(j)(3)—did not apply retroactively in light of its decision in Reese, 300 Kan. 650, Syl.
Our task on remand is to consider the impact of Reese and the July 2011 amendment in K.S.A.2011 Supp. 8–1567(j)(3) on Richards' sentence.
Analysis
The July 2011 amendment in K.S.A.2011 Supp. 8–1567(j)(3) clarified that only DUI convictions that offenders obtained after 2001 would count against them for sentencing purposes under the statute:
“(j) For the purpose of determining whether a conviction is a first, second, third, fourth, or subsequent conviction in sentencing under this section:
(3) 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.” (Emphasis added.) K.S.A.2011 Supp. 8–1567(j)(3).
Because Richards was sentenced after this amendment went into effect in 2011, he argued that the district court should have applied it in his case. Richards had eight DUI convictions on his record, but he had incurred all of them before 2001. So, under the 2011 amendment, his 2011 conviction would count as his first DUI offense.
K.S.A.2011 Supp. 8–1567(j)(3), though not in effect at the time Richards committed the crime at issue in this case should have controlled how the district court counted his DUI convictions at his sentencing. In Reese, the Kansas Supreme Court explained that the provision applies to all offenders sentenced for DUI offenses after July 1, 2011, regardless of when the offenses occurred. 300 Kan. 650, Syl. The Reese court explained that while the law in effect at the time of the offense generally controls an offender's sentence, this rule did not apply to the 2011 amendment in K.S.A.2011 Supp. 8–1567(j)(3) because: (1) the number of DUI convictions an individual has is relevant only at sentencing because it is not an element of the crime that is proved by the State at trial; (2) the legislature was aware that Kansas courts historically considered previous DUI convictions sentence enhancements that were determined at sentencing when it enacted the 2011 amendment; and (3) the plain language of the amendment makes it clear by its use of the phrases “in sentencing” and “when determining the sentence” that the provision applies at the time of sentencing. 300 Kan. at 655–57. Accordingly, it held that Reese, who was sentenced after July 1, 2011, for an offense that occurred before July 1, 2011, should have had his previous DUI convictions totaled under the 2011 amendment, which counted only convictions obtained after July 1, 2001. 300 Kan. at 658–59.
In light of Reese, Richards is also entitled to have his sentence vacated. Since he had not been convicted of any DUIs between 2001 and his 2011 offense, he should have been sentenced for a first offense under K.S.A.2011 Supp. 8–1567(j)(3) and not for a fourth or additional offense. Accordingly, his sentence is vacated, and his case is remanded to the district court with directions for resentencing.