Opinion
No. 107,464.
2012-07-27
STATE of Kansas, Appellee, v. David Dwight THACKER, Appellant.
Appeal from Johnson District Court; Stephen R. Tatum, Judge. Darrell Smith, of Olathe, for appellant. Stephen J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Darrell Smith, of Olathe, for appellant. Stephen J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., MARQUARDT, L, and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
David Dwight Thacker appeals his sentence following his guilty plea to driving under the influence of alcohol (DUI). Thacker argues that the district court erred in failing to apply retroactively K.S.A.2011 Supp. 8–1567(j)(3), which, for purposes of determining whether a DUI conviction is a first, second, third, fourth, or subsequent conviction, amends the “look-back” provision from “any conviction occurring during a person's lifetime” to “only convictions occurring on or after July 1, 2001.” L.2011, ch. 105, sec. 19. For the following reasons, we affirm the district court's judgment.
On September 3, 2010, Thacker was arrested for DUI. At the time of his arrest, K.S.A.2010 Supp. 8–1567(j)(3) provided that the look-back period for counting DUI convictions was an offender's lifetime. Thacker does not dispute that he had three prior DUI convictions in 1989, 1999, and 2000, and this was his fourth lifetime DUL However, before Thacker was sentenced, our legislature amended the look-back provision in K.S.A.2011 Supp. 8–1567(j)(3) to “on or after July 1, 2001.” L.2011, ch. 105, sec. 19.
Thacker argued in district court that because each of his three prior convictions occurred before July 1, 2001, he should be sentenced as a first-time offender under the amended DUI law. The district court rejected Thacker's argument for retroactive application of the amendment. The district court reasoned that the legislature did not expressly indicate any intent that the amendment apply retroactively to crimes that occurred prior to July 1, 2011, the effective date of the amendment. The district court determined that it should apply the general rule that a person convicted of a crime is given the sentence in effect when the crime was committed. Thus, the district court sentenced Thacker for a fourth DUI. Thacker timely appealed.
On appeal, Thacker renews his argument that the 2011 amendment to K.S.A. 8–1567(j)(3) should be applied retroactively. Thacker's argument requires statutory interpretation, which involves a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Our Supreme Court has stated the fundamental rule regarding statutory changes:
“The fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. [Citation omitted.] An exception to the fundamental rule is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively. [Citation omitted.]” State v. Williams, 291 Kan. 554, 557, 244 P.3d 667 (2010).
The legislature did not clearly indicate that it intended the 2011 amendment to K.S.A. 8–1567(j)(3) to apply retroactively. Thus, the amendment operates prospectively unless this court finds that the amendment is procedural or remedial in nature. Our Supreme Court has defined substantive and procedural laws: “As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.' [Citation omitted.]” Tonge v. Werholtz, 279 Kan. 481, 487, 109 P.3d 1140 (2005).
Thacker argues that the look-back amendment is a procedural change and should be applied retroactively because the elements of the underlying crime and penalties are not implicated. He compares the amendment to an amendment extending a statute of limitations or an amendment changing the admissibility of evidence. As the State points out, however, our Supreme Court has found that a statutory amendment modifying the severity of punishment for a conviction alters substantive rights, and therefore only operates prospectively. Williams, 291 Kan. at 557. We see no reason this rationale and conclusion should not apply here.
Furthermore, it is a fundamental rule in Kansas law that a defendant is sentenced based on the law in effect when the crime was committed. Williams, 291 Kan. at 559;State v. Walker, 277 Kan. 849, 850, 89 P.3d 920 (2004). As a policy matter, our Supreme Court has explained that “having the penalty parameters for an offense ‘fixed as of the date of the commission of the offense is fair, logical, and easy to apply.’ “ Williams, 291 Kan. at 560. For example, our Supreme Court has found that a defendant's sentence was properly enhanced under the habitual criminal statute even though after the defendant committed aggravated burglary, but before his trial and sentencing, the statute was amended and no longer authorized a trial court to double the maximum sentence for a second conviction of aggravated burglary. State v. Mayberry, 248 Kan. 369, 387, 807 P.2d 86 (1991). Similarly, a panel of this court has found that an amendment to the driving while suspended statute, changing the conviction from a felony to a misdemeanor, did not apply retroactively. State v. Edwards, 28 Kan.App.2d 379, 380–81, 15 P.3d 855 (2000).
Thacker argues that the legislative history of the 2011 amendment to K.S.A. 8–1567(j)(3) establishes that the legislature intended the amendment to apply retroactively. The State argues that the statutory amendment is clear and the court does not need to resort to any statutory construction. The State is correct. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). Because the 2011 amendment to K.S.A. 8–1567(j)(3) is clear and unambiguous and does not provide for retroactive application, we need not resort to statutory construction.
Finally, Thacker argues that the statute should be applied retroactively because he should receive the benefit of an ameliorative sentencing amendment. As the State points out, however, Thacker does not cite Kansas caselaw supporting this argument. To the contrary, Kansas appellate courts apply the general rule that a defendant is sentenced based on the law in effect when the crime was committed, even when an amended statute is ameliorative. See, e.g ., State v. Roseborough, 263 Kan. 378, 386, 951 P.2d 532 (1997); Mayberry, 248 Kan. at 387. For all of these reasons, we conclude the district court did not err in refusing to apply K.S.A.2011 Supp. 8–1567(j)(3) retroactively.
Affirmed.