Opinion
No. 109,238.
2015-02-13
STATE of Kansas, Appellee, v. Clint M. STAFFORD, Appellant.
Appeal from Rice District Court; Hannelore Kitts, Judge.Michael S. Holland II, of Holland and Holland, of Russell, for appellant.Scott E. McPherson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Rice District Court; Hannelore Kitts, Judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. Scott E. McPherson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., SCHROEDER. J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Clinton M. Stafford was convicted of driving under the influence (DUI), third conviction, after he was stopped for drunk driving on February 5, 2011. On appeal, he argued the amendment in K.S.A.2011 Supp. 8–1567(j)(3) that became effective on July 1, 2011, should retroactively apply to his case, which would change the number of prior DUI's that would be counted for sentencing on his current conviction. In this court's opinion in State v. Stafford, No. 109,238, 2014 WL 802054 (Kan.App.2014) (unpublished opinion) filed on February 28, 2014, Stafford's conviction was affirmed. Stafford filed a petition for review. On January 20, 2015, our Supreme Court granted the petition for review and remanded this case to the Court of Appeals for reconsideration of Stafford's challenge to his sentence in light of State v. Reese, 300 Kan. 650, 333 P.3d 149 (2014). The only issue on appeal is whether the district court erred in denying Stafford's motion to dismiss the felony DUI charges. Resolution of the issue turns on whether the district court erred in failing to retroactively apply K.S.A.2011 Supp. 8–1567(j)(3) in determining whether Stafford could be charged with felony DUI.
Facts
On February 5, 2011, a police officer stopped the vehicle Stafford was driving after the officer observed the vehicle damage a mailbox. The officer began a DUI investigation and eventually arrested Stafford for DUI. A properly administered Intoxilyzer 8000 breath test indicated that Stafford's breath-alcohol level was .168.
On March 3, 2011, Stafford was charged with one count each of DUI, criminal damage to property, and driving left of center. The DUI was charged as a felony because Stafford had two prior diversion agreements.
On September 7, 2011, Stafford filed a motion to dismiss the felony DUI charges, arguing that he should be charged only as a first-time-DUI offender under the amendment made in K.S.A.2011 Supp. 8–1567(j)(3) effective July 1, 2011. According to Stafford, his DUI diversions occurring before July 1, 2001, would no longer count under the amended statute. The State responded, arguing that the amended statute did not apply because the amendment did not become effective until after Stafford committed his DUI.
After holding a hearing on Stafford's motion to dismiss, the district court denied the motion based on this court's reasoning in State v. Reese, 48 Kan.App.2d 87, 89, 283 P.3d 233 (2012), rev. granted 297 Kan. 1254 (2013). Stafford then submitted a stipulation of fact and waiver of jury trial while preserving his objection to proceeding with the DUI as a felony charge. Based on the stipulation, the district court found Stafford guilty on all three counts. On November 19, 2012, the district court sentenced Stafford to a period of 12 months of confinement and was then granted 12 months of probation.
Analysis
On appeal, Stafford argued that his DUI convictions that occurred prior to July 1, 2001, should not count as prior convictions based on the 2011 amendment to K.S.A.2010 Supp. 8–1567. He contended that even though the amendment became effective after he committed the DUI in this case, the amendment should retroactively apply because the amendment was procedural and remedial and also because retroactive application would not create an ex post facto violation. Stafford also contended that the amendment is similar to the federal Fair Sentencing Act of 2010, which the federal courts applied retroactively if sentencing took place after the amendments went into effect.
Whether a sentencing statute should be applied retroactively is an issue of statutory interpretation over which we exercise unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
The statute in effect when Stafford committed the offense was K.S .A.2010 Supp. 8–1567(o)(3), and under that version, any prior DUI conviction occurring during a person's lifetime are considered in determining the sentence imposed for a first, second, third, fourth, or subsequent offender. When the district court sentenced Stafford on November 19, 2012, however, K.S.A.2012 Supp. 8–1567(i)(1) was in effect. The 2012 version of the statute only considered prior DUI convictions occurring after July 1, 2001, the same as K.S.A.2011 Supp. 8–1567(j)(3). See L.2011, ch. 105, sec. 19.
This court noted that another panel of our court had rejected a similar argument in Reese, 48 Kan.App.2d 87. Stafford, 2014 WL 802054, at *2. In Reese, the defendant was arrested for a 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 a fundamental rule of criminal procedure in Kansas is 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 change in 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 substance of the 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 Stafford's argument that the new look-back provision should have been retroactively applied to his case. Stafford, 2014 WL 802054, at *2. Accordingly, this court affirmed the district court's decision denying Stafford's motion to dismiss the felony DUI charges.
However, on August 29, 2014, our Supreme Court reversed this court's decision in Reese. In its analysis, the court examined the nature of the DUI statutory scheme, its historical development, and how prior offenses have historically been handled. Reese, 333 P.3d at 152. The court also examined the statutory language in K.S.A.2011 Supp. 8–15670(j). 333 P.3d at 153–154. 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 the 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, 264 P.3d 1027 (2011), rev denied 294 Kan. 946 (2012). The Kansas Supreme Court's decision in Reese controls the outcome of Stafford'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, 533 P.3d at 154. Because Stafford's prior DUI diversions occurred before July 1.2001, the district court should have sentenced Stafford as a first-time offender.
The felony charges filed against Stafford and the sentence he received did not conform with K.S.A.2011 Supp. 8–3567(j)(3). The district court erred in denying Stafford's motion to dismiss the felony charges. Pursuant to Reese, the felony DUI conviction against Stafford is reversed, and this case is remanded to the district court for further proceedings wherein Stafford shall be considered a first-time offender for all purposes.
Reversed and remanded with directions.