Opinion
No. 107,684.
2015-02-19
STATE of Kansas, Appellee, v. Kenneth J. TAFOYA, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.Heather Cessna, of Kansas Appellate Defender Office, for appellant.Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
POWELL, J.
Following this court's memorandum opinion in State v. Tafoya, No. 107,684, 2013 WL 1457946 (Kan.App.2013) (unpublished opinion) ( Tafoya II ), filed April 5, 2013, Kenneth J. Tafoya filed a petition for review. Our Supreme Court granted the petition and remanded this case for our reconsideration of Tafoya's challenge to his sentence in light of State v. Reese, 300 Kan. ––––, 333 P.3d 149 (2014). The sole 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 Tafoya's sentence following his conviction of driving under the influence of alcohol (DUI).
For context, we briefly recite only the relevant facts. On April 5, 2006, Tafoya was arrested for DUI; a jury later found him guilty of that offense and for driving while suspended. Because he had three prior DUI convictions, the district court classified Tafoya's current fourth DUI as a felony offense. On April 17, 2008, the district court imposed a 180–day jail sentence, 12 months of postrelease supervision, and the mandatory minimum fine of $2,500. The district court also imposed a $200 fine for the driving while suspended conviction, greater than the minimum. Tafoya then appealed, raising various trial and sentencing issues. On December 17, 2010, the prior panel upheld Tafoya's DUI conviction and sentence but remanded the case to the district court solely for the purpose of considering two issues: first, “for consideration of community service as an alternate method of payment of the [DUI] fine” in accordance with State v. Copes, 290 Kan. 209, 224 P.3d 571 (2010), and second, “to consider Tafoya's financial resources” before imposing more than the minimum fine for the driving while suspended conviction pursuant to State v. Raschke, 289 Kan. 911, 219 P.3d 481 (2009). State v. Tafoya, No. 100,784, 2010 WL 5185473, at *9–10 (Kan.App.2010) (unpublished opinion) ( Tafoya I ). Tafoya petitioned for review and was denied by our Supreme Court on December 16, 2011.
On February 14, 2012, one day before the district court held the hearing as directed by our court, Tafoya filed a motion to impose sentence pursuant to Senate Bill 6, effective July 1, 2011. In it, Tafoya asked the district court to retroactively apply the newly amended look-back period for DUI convictions in K.S.A.2012 Supp. 8–1567(i)(1). Tafoya argued that application of the amendment would make his current DUI a first offense because his prior three DUI offenses occurred before July 1, 2001. The district court rejected Tafoya's motion, finding it had no jurisdiction to resentence him and our court's mandate limited the district court to consideration of only Tafoya's financial circumstances and the fines imposed.
Tafoya again appealed, and another panel of this court agreed that Tafoya should be sentenced as a fourth time offender. Tafoya II, 2013 WL 1457946, at *2–3. The panel also agreed with the district court and the State that the district court's jurisdiction was limited to consideration of the fines and nothing else. Tafoya II, at *2. Notwithstanding this limitation, the panel did address the merits of Tafoya's argument, finding that K.S.A.2012 Supp. 8–1567 could not be applied retroactively and noting that Tafoya was raising for the first time on appeal that his sentence was illegal. Tafoya II, at *2.
Subsequent to this decision, however, on August 29, 2014, the Kansas Supreme Court decided State v. Reese, 300 Kan. ––––, 333 P.3d 149 (2014). There, our Supreme Court noted that K.S.A.2011 Supp. 8–1567(j)(3) was amended between the time the defendant in that case committed his DUI and the time he was sentenced. The court recognized that the question presented was: “[W]hich statute applied to [the defendant's] sentencing, the one in effect when he was sentenced or the one in effect when he committed the acts giving rise to his conviction[?]” 300 Kan. at. –––– Departing from the well-established rule that a defendant is sentenced in accordance with the law in effect at the time the offense is committed, the court found “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.” 300 Kan. at ––––. The 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. 300 Kan. at
After reconsidering this matter in light of Reese, we see no reason to change our holding that Tafoya was properly sentenced as fourth DUI offender. As we stated in Tafoya II, at *3: “Tafoya was not sentenced after the effective date of the [DUI] amendment; he was sentenced on April 17, 2008, well before the effective date of July 1, 2011.” Therefore, in accordance with Reese, the 10 year look-back provisions of the amended DUI law are inapplicable to Tafoya's sentence.
Moreover, the fact the case was remanded for consideration of community service as an alternate method of payment of Tafoya's DUI fine in light of his financial condition did not render Tafoya's second hearing, held after July 1, 2011, a “sentencing” or even a “resentencing” with respect to his DUI sentence because Tafoya's sentence was not illegal in the first instance. See State v. Guder, 293 Kan. 763, 766–67, 267 P.3d 751 (2012) (lawful sentence previously imposed may not be modified on remand absent specific authority to do so). The district court's only charge was to determine whether Tafoya would be allowed to perform community service in lieu of his DUI fine. At no time was Tafoya's DUI jail time or fine amount ever vacated, and, under our mandate, the district court was prohibited from modifying them. See State v. Collier, 263 Kan. 629, 634, 952 P.2d 1326 (1998) (“ ‘mandate rule’ “ requires district court to proceed in accordance with mandate from appellate court) (quoting K.S.A. 60–2106[c] ); State v.. DuMars, 37 Kan.App.2d 600, 603, 154 P.3d 1120 (when second appeal is brought in same case, first appeal is settled law regarding all questions decided), rev. denied 284 Kan. 948 (2007).
Affirmed.