Opinion
No. 107,876.
2014-12-12
STATE of Kansas, Appellee, v. Jerry SAMPLES, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert and Gregory L. Waller, Judges.Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert and Gregory L. Waller, Judges.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in State v. Samples, No. 107,876, 2013 WL 1876460 (Kan.App.2013) (unpublished opinion), filed on May 3, 2013, Samples filed a petition for review. On November 14, 2014, the Kansas Supreme Court granted the petition for review and remanded the issue of whether the district court erred in finding that K.S.A.2011 Supp. 8–1567(j)(3) did not apply retroactively in Samples' case. It remanded this case to the Court of Appeals for reconsideration in light of State v. Reese, 300 Kan. ––––, 333 P.3d 149 (2014). In light of Reese, we are compelled to vacate Samples' sentence and remand this matter to the district court for resentencing.
We will briefly review the facts. Jerry Samples was arrested on October 2, 2010, for DUI and various traffic offenses. On January 6, 2011, the State filed formal charges alleging Samples drove with a blood or breath alcohol concentration (BAC) of 0.263. In the alternative, the State alleged that Samples drove under the influence to the extent he was incapable of safely operating a motor vehicle. The State also alleged Samples had two prior convictions for DUI that occurred in 1988 and 2005. At a bench trial on stipulated facts, Samples was found guilty, and he was subsequently sentenced to a controlling 6–month sentence. The district court then placed Samples on probation on the condition that he serve 48 hours in jail and spend 88 days on house arrest. Thereafter, Samples timely appealed from all the court's rulings.
On appeal, one of Samples' arguments was that the district court erred in including his 1988 DUI conviction as part of his criminal history at sentencing. Specifically, Samples argued that the 2011 amendments to the DUI statute should be applied retroactively. Under those amendments, “only convictions occurring on or after July 1, 2001, shall be taken into account” in determining whether a conviction is a first, second, third, fourth, or subsequent conviction. K.S.A.2011 Supp. 8–1567(j)(3).
In our previous opinion, we 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). Based on the rationale articulated in Reese, we rejected Sample's argument that the new look-back provision should have been retroactively applied to his case. Because Sample's current DUI offense occurred prior to the effective date of the 2011 amendments to the DUI law, we determined that Samples should be sentenced according to the laws in effect at the time of the commission of his crime.
Subsequently, on August 29, 2014, the Kansas Supreme Court reversed the Reese decision, concluding 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.” 333 P.3d at 150. 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. 333 P.3d at 154.
We are duty bound to follow Kansas Supreme Court precedent absent extraordinary circumstances. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Because no extraordinary circumstances exist in this case, we find that the Kansas Supreme Court's decision in Reese controls the issue presented. Moreover, because the district court considered Samples' 1988 DUI conviction in sentencing Samples as a third time DUI offender, we must vacate his sentence. On remand, the district court should resentence Samples-taking into account only prior DUI convictions that occurred on or after July 1, 2001.
Vacated and remanded with directions.