Opinion
No. 107,988.
2013-05-17
STATE of Kansas, Appellee, v. Justin L. SHAFER, Appellant.
Appeal from Pottawatomie District Court; Jeffrey R. Elder, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Jason B. Oxford, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Pottawatomie District Court; Jeffrey R. Elder, Judge.
Christina M. Kerls, 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, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Justin L. Shafer appeals his conviction and sentence for felony driving under the influence of alcohol (DUI), third offense. We affirm the conviction and sentence.
Shafer committed his DUI offense on April 17, 2011. He was charged with felony DUI, a third conviction for sentencing, under K.S.A.2010 Supp. 8–1567. On January 19, 2012, he pled no contest to that charge. The court accepted the plea and, based on the State's unchallenged factual submission, found Shafer guilty as charged. Prior to sentencing, Shafer filed a motion in which he argued that he should receive the benefits of the new look-back provision in K.S .A.2011 Supp. 8–1567(j)(3). The act containing that statute became effective July 1, 2011. Under that new provision only DUI convictions occurring on or after July 1, 2001, can be taken into account when determining whether a DUI conviction is a first, second, third, or subsequent conviction. This provision replaced K.S .A.2010 Supp. 8–1567(o)(3) which counted all prior DUI convictions occurring during a person's lifetime in that determination. Shafer's prior convictions were a 1998 DUI diversion and a DUI conviction in 2000. A prior DUI diversion can count as a conviction for purposes of determining the classification or level of a subsequent DUI. See both K.S.A.2010 Supp. 8–1567(o)(1),(2) and K.S.A.2011 Supp. 8–1567(j)(1), (2).
Obviously the retroactive application of those provisions would benefit Shafer. If K.S.A.2011 Supp. 8–1567(j)(3) could be applied in Shafer's case he would not have a DUI felony on his record and he would be sentenced for DUI as if it was a first conviction. The district judge, however, denied Shafer's motion, finding that the 2011 amendments to K.S.A. 8–1567 at issue were substantive and not retroactive. The district court sentenced Shafer for felony DUI, third conviction. Shafer appeals, asking this court to hold that K.S.A.2011 Supp. 8–1567(j)(3) should be applied retroactively.
Shafer advances three arguments. First, he contends that the look-back provision in K.S.A.2011 Supp. 8–1567(j)(3) was a mere procedural change—not a substantive one—and therefore should be applied retroactively to his case.
On occasion the legislature has amended statutes to reduce the severity level and attendant sanctions of an offense. For example, before July 1, 1999, under K.S.A. 8–262, driving while suspended after two or more convictions of DWS was a felony. The legislature amended K.S.A. 8–262 effective July 1, 1999, reducing the penalty for driving while suspended after two or more convictions from a felony to a misdemeanor. In State v. Edwards, 28 Kan.App.2d 379, 15 P.3d 855 (2000), Edwards had committed her third DWS before July 1, 1999, and was charged with a felony. After July 1, 1999, she moved for dismissal, arguing retroactivity. The trial court agreed and dismissed the felony. On appeal this court held in its published opinion that the trial court erred:
“ ‘It is well established that criminal statutes in effect at the time of the offense control the charge as well as the sentence resulting therefrom.’ State v. Patry, 266 Kan. 108, 111, 967 P.2d 737 (1998). The law is clear that a statute operates only prospectively unless the legislature clearly intends it is to operate retrospectively. However, when the statutory change is merely procedural or remedial in nature and does not affect the substantive rights of the parties, the statutory change will operate retrospectively as well as prospectively. The question in this case is whether 8–262(a) was a statute of substantive criminal law which either defines a crime or involves the length or type of punishment. See State v. Billington, 24 Kan.App.2d 759, 761, 953 P.2d 1059 (1998). ‘Changes in the length of sentences for criminal acts have been given prospective application only.’ State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980).
....
“... We have examined the language of K.S.A.1999 Supp. 8–262(a), and it does not clearly state an intention on the part of the legislature for retroactive application.” Edwards, 28 Kan.App.2d 380–81.
Because the change was substantive in defining a crime and involved the length of punishment, and because the legislation contained no indication of intent for retroactivity, the court reversed the trial court and reinstated the felony charge.
Specifically concerning K.S.A.2011 Supp. 8–1567(j)(3) this court has considered and rejected Shafer's first retroactivity argument. In State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012), petition for review filed September 4, 2012, a comprehensive opinion that has already been followed by panels of this court in several cases, the court found that the amendment only operated prospectively. Reese had committed his DUI July 3, 2009. He was convicted June 6, 2011, with sentencing after July 1, 2011. Under the lifetime look-back provisions of the version of K.S.A. 8–1567 in effect when he committed his offense he faced a sentence for felony DUI, fourth or subsequent. However, all of his priors had occurred before July 1, 2001. Not surprisingly, he argued for retroactivity of the 2011 amendment. Citing State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010), the Reese court reiterated that a statute generally operates prospectively unless the language clearly indicates legislative intent for its retroactive application. Further, it recognized the fundamental rule of criminal procedure in Kansas that a defendant is sentenced under the law in effect when the crime was committed. Applying these basic rules to K.S.A.2011 Supp, 8–1567(j)(3), the Reese court found that there was nothing in the statutory language to suggest that the legislature intended the provision to apply to all DUI offenders, regardless of the date of the offense, who were sentenced after the effective date of the provision. It also noted provisions in the same bill (See L.2011, ch. 105, secs. 14, 19) that did provide for retroactive application of some other DUI-related provisions, confirming that the legislature well knew how to make this provision retroactive if that was its intent. The Reese court found that the new look-back provision did alter substantive rights because it modified the severity of punishment for a DUI conviction. 48 Kan.App.2d at 90. The court concluded that the district court did not err in refusing to apply the look-back provision of K.S.A.2011 Supp. 8–1567(j)(3) in Reese's case. The amendment only applied prospectively to offenses occurring on or after July 1, 2011, the effective date of the act. Reese, 48 Kan.App.2d at 91.
We find Reese to be well-reasoned and persuasive. We apply it to Shafer's retroactivity argument and reject that argument.
Shafer next argues that the legislature enacted K.S.A.2011 Supp. 8–1567(j)(3) as a legislative response to State v. Sedillos, 279 Kan. 777, 112 P.3d 854 (2005). He contends this 2011 amendment was intended to legislatively overrule the holding in that case. In 2001 the legislature replaced the 5–year decay provision of K.S.A. 8–1567 with a lifetime look-back provision. Sedillos had two DUI convictions more than 5 years old which, but for the 2001 amendment, would have decayed by the time he committed his felony DUI in October, 2002. He claimed that counting DUI convictions that would have been decayed but for the amendment violated his right to due process. The Sedillos court held that the legislature had the power to expand the look-back period without violating the due process rights of Sedillos. As the State observes, Shafer presents no evidence to show that overruling this holding was, indeed, the legislature's intent. Generally when the legislature acts to legislatively overrule a case holding by passing a new law it is because the court construed prior law differently than the legislature intends or prefers. That did not happen in Sedillos. The court upheld the legislature's action. At any rate we do not need to examine this unsupported claim of legislative overruling by looking beyond the language of the statute. Under the Reese analysis we have adopted here, K.S.A.2011 Supp. 8–1567(j)(3) is a substantive amendment. Since there is an absence of any indication of legislative intent that the amendment be retroactive, it is only effective prospectively.
Finally Shafer claims that the recent case of Dorsey v. United States, 567 U.S. ––––, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) supports his entitlement to retroactivity. Congress enacted the Fair Sentencing Act to reduce sentence lengths for crack cocaine offenses. In Dorsey, a five-four decision, the majority held for a degree of retroactivity in applying that Act's reduced sentences. The majority looked at six considerations that, when taken together, point clearly in the direction of retroactivity. Ultimately the majority held: “For these reasons considered as a whole, we conclude that Congress intended the Fair Sentencing Act's new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is the Act's ‘plain import’ or ‘fair implication.’ “ (Emphasis added.) Dorsey, 132 S.Ct. at 1325. The majority looked for and found congressional intent for an amount of retroactivity.
In Kansas, a statute generally operates prospectively unless the language clearly indicates legislative intent for its retroactive application. As the Reese court noted, the legislature did make parts of the act which contained the amendments to K.S.A. 8–1567 retroactive. It did not do so, clearly or otherwise, for K.S.A.2011 Supp. 8–1567(j)(3).
K.S.A.2011 Supp. 8–1567(j)(3) operates only prospectively. We affirm.