Opinion
No. 108044.
2015-01-16
STATE of Kansas, Appellee, v. James D. RYHERD, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.Randall L. Hodgkinson, 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.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Randall L. Hodgkinson, 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 LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
James Ryherd was charged with a third-offense DUI for events occurring on June 16, 2010. Ryherd pled guilty to the charge and stipulated that he had two prior DUI offenses from 1987 and 2001. Ryherd asked the district court to apply a July 2011 amendment to the Kansas DUI statute to his case. This would have made the 2010 offense a first-offense DUI—a misdemeanor rather than a felony. But the district court denied the motion, and this court affirmed its decision.
On October 20, 2014, the Kansas Supreme Court vacated our earlier decision in this case and remanded it to us for reconsideration in light of State v. Reese, 300 Kan. 650, Syl., 333 P.3d 149 (2014). The Reese court held that the provision Ryherd sought to apply, K.S.A.2011 Supp. 8–1567(j)(3), providing that convictions before July 1, 2001, should not be counted, applies to all persons who are sentenced for DUI on or after July 1, 2011, the effective date of the amended statute. 333 P.3d at 154. Ryherd was sentenced in November 2011, so his offenses from 1987 and March 2001 cannot be counted. We therefore vacate Ryherd's sentence and remand to the district court for resentencing in conformity with Reese.
On August 5, 2010, the State charged Ryherd with operating a vehicle while under the influence of alcohol. Ryherd pled guilty to a DUI offense and reserved his right to argue whether the conviction should be classified as a felony or a misdemeanor. At sentencing, Ryherd requested that the court apply K.S.A.2011 Supp. 8–1567, which was amended in 2011 so that DUI convictions before July 1, 2001, would not count to increase a defendant's sentence.
This court originally affirmed the district court's sentence, relying on our decision in State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012). The Reese decision rejected the retroactivity argument because it was inconsistent with settled Kansas authority on changes in sentencing statutes. 48 Kan.App.2d at 89–91. The Kansas Supreme Court reversed Reese, however, interpreting K.S.A.2011 Supp. 8–1567(j)(3) to provide that the sentencing court may take into account only those prior DUI convictions that occurred on or after July 1, 2001. According to Reese, the sentencing court is to determine at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of sentence enhancement. Therefore, the Kansas Supreme Court held 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. 300 Kan. 650, Syl.
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 under the 2011 amendments even if the DUI violation at issue occurred before the amendments went into effect. 333 P.3d at 154. Because the look-back provision in effect at the time of sentencing, rather than at the time of the offense, applies for sentence-enhancement purposes, Ryherd must be resentenced without counting the DUI offenses he incurred before July 1, 2001.
We therefore vacate the sentence and remand this matter to the district court for resentencing in conformity with the amendments in K.S.A.2011 Supp. 8–1567(j)(3).