Opinion
No. 106,963.
2014-12-12
STATE of Kansas, Appellee, v. Jimmy L. STUART, Appellant.
Appeal from Douglas District Court; Barbara Kay Huff, Judge.Michael E. Riling, of Riling, Burkhead, & Nitcher, Chartered, of Lawrence, for appellant.Samantha Clark, legal intern, Gregory T. Benefiel, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Barbara Kay Huff, Judge.
Michael E. Riling, of Riling, Burkhead, & Nitcher, Chartered, of Lawrence, for appellant. Samantha Clark, legal intern, Gregory T. Benefiel, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in State v. Stuart, No. 106,963, 2012 WL 4795599 (Kan.App.2012) (unpublished opinion), filed on October 5, 2012, Jimmy L. Stuart filed a petition for review. On November 14, 2014, our Supreme Court granted the petition for review as to Issue IV only and remanded this case to the Court of Appeals for reconsideration of Stuart'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).
We will briefly review the facts. Following a bench trial, the district court convicted Stuart of driving under the influence (DUI) and refusing to take a preliminary breath test. The DUI was committed on December 12, 2009. Stuart's presentence investigation report indicated that he had three prior DUI convictions, all occurring before 2001. On October 24, 2011, the district court sentenced Stuart as a fourth or subsequent DUI offender. The district court did not address the amendment to K.S.A.2011 Supp. 8–1567(j)(3), which went into effect on July 1, 2011, and provided that “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. Stuart timely appealed the district court's judgment.
On appeal, Stuart argued that the district court erred in failing to retroactively apply K.S.A.2011 Supp. 8–1567(j)(3). 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). Stuart, 2012 WL 4795599, at *7. 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 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 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 Stuart's argument that the new look-back provision should have been retroactively applied to his case. Stuart, 2012 WL 4795599, at *7. Accordingly, this court affirmed the district court's decision to sentence Stuart as a fourth or subsequent DUI offender. 2012 WL 4795599, at *8.
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. The court also examined the statutory language employed in K.S.A.2011 Supp. 8–1567(j). 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 Stuart'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 erred in sentencing Stuart as a fourth or subsequent DUI offender. Because all of his 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.