Opinion
107,988.
11-14-2014
STATE of Kansas, Appellee, v. Justin L. SHAFER, Appellant.
Christina M. Kerb, of Kansas Appellate Defender Office, for appellant. Jason B. Oxford, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerb, of Kansas Appellate Defender Office, for appellant.
Jason B. Oxford, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in State v. Shafer, No. 107,988, 2013 WL 2321186 (Kan.App.2013) (unpublished opinion), filed on May 17, 2013, Justin L. Shafer filed a petition for review. On October 20, 2014, our Supreme Court granted the petition for review and remanded this case to the Court of Appeals for reconsideration of Shafer's challenge to his sentence in light of State v. Reese, 300 Kan. ––––, 333 P.3d 149 (2014). The only issue on appeal is whether the district court erred in failing to retroactively apply K.S.A.2011 Supp. 8–1567(j)(3) in calculating Shafer's sentence following his conviction of driving under the influence of alcohol (DUI).
We will briefly review the facts. Shafer committed his DUI offense on April 17, 2011. He was charged with felony DUI, third offense, under K.S.A.2010 Supp. 8–1567. On January 19, 2012, he pled no contest to that charge. Shafer's sentencing hearing was scheduled for February 16, 2012. A presentence investigation report showed that Shafer's prior convictions were a 1998 DUI diversion and a DUI conviction in 2000.
Prior to sentencing, Shafer filed a motion and argued that he should receive the benefit of the new look-back provision in K.S.A.2011 Supp. 8–1567(j)(3), which went into effect on July 1, 2011. Under the new provision, “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.” L.2011, ch. 105, sec. 19. Shafer argued that under the amended statute, he should be sentenced as a first-time DUI offender, rather than as a third-time offender, because his prior DUI convictions occurred before July 1, 2001. The district court denied Shafer's motion, finding that the 2011 statutory amendment was substantive and not retroactive. The district court sentenced Shafer for felony DUI, third conviction. Shafer timely appealed his sentence.
On appeal, Shafer argued the new look-back provision was merely a procedural rather than a substantive amendment and thus should have been retroactively applied to his case. This court 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), petition for rev. filed September 4, 2012. 2013 WL 2321186, at *2. In Reese, the defendant was arrested for DUI on July 3, 2009, but he was not convicted of the offense until June 6, 2011. His sentencing was held on August 10, 2011, and a presentence investigation report identified four prior DUI convictions, all prior to July 1, 2001. The district court sentenced the defendant as a fourth or subsequent DUI offender.
On appeal, the Reese court noted the fundamental rule of criminal procedure in Kansas that a defendant is sentenced based on the law in effect when the crime was committed. 48 Kan.App.2d at 89. The Reese court also noted the fundamental rule that a statute operates prospectively unless either the language clearly indicates that the legislature intended the statute to apply retroactively or the change is procedural only and does not prejudicially affect the substantive rights of the parties. 48 Kan.App.2d at 89. Applying these fundamental rules to K.S.A.2011 Supp. 8–1567(j)(3), the Reese court concluded that the district court did not err in refusing to apply the new look-back provision in the amended statute to the defendant's case. 48 Kan.App.2d at 91.
Based on Reese, this court rejected Shafer's argument that the new look-back provision should have been retroactively applied to his case. 2013 WL 2321186, at *2. Therefore, this court affirmed Shafer's sentence. 2013 WL 2321186, at *3.
However, on August 29, 2014, our Supreme Court reversed this court's decision in Reese. See State v. Reese, 300 Kan. ––––, 333 P.3d 149 (2014). In its analysis, the court examined the nature of the DUI statutory scheme, its historical development, and how prior offenses have historically been handled. 333 P.3d at 152. The court also examined the statutory language employed in K.S.A.2011 Supp. 8–1567(j). 333 P.3d at 153–54. Ultimately, our Supreme Court found 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.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The Kansas Supreme Court's decision in Reese controls the outcome of Shafer's appeal. K.S.A.2011 Supp. 8–1567(j)(3) provides that the sentencing court is to take into account only those prior DUI convictions that occurred on or after July 1, 2001, and determine at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement, Reese, 333 P.3d at 154. Here, the district court sentenced Shafer as a third-time DUI offender. But because Shafer's prior DUI convictions occurred before July 1, 2001, he should be resentenced as a first-time offender under the amended DUI law.
Reversed and remanded with directions.