Opinion
No. 107,785.
2014-12-12
STATE of Kansas, Appellee, v. Phillip J. ULRICH, Appellant.
Appeal from Douglas District Court; Paula B. Martin, Judge.Edward C. Gillette and Grant M. Reichert, of Gillette Law Firm, P .A., of Mission, for appellant.Patrick J. Hurley and Gregory T. Benefiel, assistant district attorneys, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Paula B. Martin, Judge.
Edward C. Gillette and Grant M. Reichert, of Gillette Law Firm, P .A., of Mission, for appellant. Patrick J. Hurley and Gregory T. Benefiel, assistant district attorneys, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in State v. Ulrich, No. 107,785, 2012 WL 5869662 (Kan.App.2012) (unpublished opinion), filed on November 16, 2012, Phillip J. Ulrich filed a petition for review. On November 14, 2014, our Supreme Court granted the petition for review as to Issue I only and remanded this case to the Court of Appeals for reconsideration of Ulrich'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 finding that K.S.A.2011 Supp. 8–1567(j)(3) did not apply retroactively to Ulrich's case.
We will briefly review the facts. On December 26, 2008, Ulrich was arrested for driving under the influence (DUI) after he failed to stop at a stop sign and then failed multiple field sobriety tests. After the original DUI charge was voluntarily dismissed, the State refiled a felony DUI charge against Ulrich on April 15, 2011. Ulrich had multiple DUI convictions, all occurring prior to 2001. The parties filed competing motions concerning the application of the amendments to the DUI laws and the resulting “lookback” provisions of K.S.A.2011 Supp. 8–1567(j)(3). The amended statute, which went into effect on July 1, 2011, 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. The district court denied Ulrich's motion, finding that under the rules of statutory interpretation and Kansas caselaw, all pre–2001 DUI convictions are included in sentencing for any conviction with an incident date prior to July 1, 2011.
After a bench trial on stipulated facts, the district court found Ulrich guilty of DUI. Ulrich's presentence investigation report revealed two DUI convictions in 1995 and two DUI convictions in 1990. On February 24, 2012, the district court sentenced Ulrich as a third-time DUI offender. Ulrich timely appealed the district court's judgment.
On appeal, Ulrich argued that the district court erred in finding that K.S.A.2011 Supp. 8–1567(j)(3) was not retroactive and in admitting his pre–2001 DUI convictions. 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). Ulrich, 2012 WL 5869662, at *2. 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 Ulrich's argument that the new look-back provision should have been retroactively applied to his case. Ulrich, 2012 WL 5869662, at *4. Because Ulrich's current DUI offense occurred prior to the effective date of the amendments on July 1, 2011, this court determined that Ulrich should be sentenced according to the laws in effect at the time of the commission of his crime. Ulrich, 2012 WL 5869662, at *4.
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 Ulrich'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 Ulrich as a third time 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.