Opinion
No. 105,579.
2012-06-15
STATE of Kansas, Appellee, v. Michelle D. WARDEN, Appellant.
Appeal from Butler District Court; John E. Sanders, Judge. Gail A. Jensen, of El Dorado, for appellant. Alice R. Burns, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Butler District Court; John E. Sanders, Judge.
Gail A. Jensen, of El Dorado, for appellant. Alice R. Burns, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
BUSER, J.
Michelle D. Warden pled guilty to driving under the influence of alcohol (DUI) in Butler County in violation of K.S.A.2010 Supp. 8–1567. On appeal, Warden contests her sentencing as a fourth time DUI offender. She contends that a prior DUI diversion was erroneously included in her criminal history score which resulted in an enhanced sentence. We find no reversible error and affirm the sentence.
Factual and Procedural Background
On March 5, 2010, Warden pled guilty, in accordance with plea negotiations, to DUI, a nongrid, nonperson felony, in violation of K .S.A.2010 Supp. 8–1567. Prior to sentencing, a presentence investigation report (PSI) was completed which indicated that Warden's criminal history included two prior misdemeanor convictions for DUI and a DUI diversion agreement. In particular, Warden was convicted of her first DUI on January 25, 1995, in El Dorado, Kansas. Her second DUI conviction occurred on June 25, 2001, in Butler County, Kansas. Warden's third DUI offense, in Harper County, Kansas, resulted in a diversion agreement effective March 5, 2009. Of note, Warden entered into this diversion agreement with the assistance of counsel.
In the present case, Warden filed a written objection to the inclusion of the DUI diversion as part of her criminal history score, due to a claimed “improper and ineffective resolution of the charge.” On June 8, 2010, the district court held a hearing on Warden's PSI objection.
In the district court, Warden challenged the diversion agreement on two grounds. On appeal, she characterizes her arguments below as follows: “The defendant objected (a) first because the diversion was void because the Harper County case was for a third offense and diversion is not allowed for a third offense, and (b) second because the diversion did not contain a waiver of preliminary hearing.”
The State responded that although K.S.A.2010 Supp. 8–1567 limits DUI offenders to one diversion during their lifetime, the statute does not prohibit the use of such agreements after an offender's first DUI offense. The State asserted that K.S.A.2010 Supp. 8–1567(o) reflects the legislature's intent that all DUI offenses, including those resulting in diversion, be considered for purposes of penalty enhancement. With regard to Warden's second argument, the State countered that a preliminary hearing waiver was unnecessary because the DUI was a misdemeanor offense and, as a result, Warden had no right to a preliminary hearing. Additionally, the State pointed out that Warden was represented by counsel in the Harper County proceedings, she requested the diversion, and according to the agreement, Warden read and understood what she was signing. The State explained,
“[Warden] is attempting to use her diversion agreement as a shield and a sword. She wants to take full advantage of a diversion agreement to shield her from a criminal conviction and mandatory incarceration. And yet she wants to use that diversion agreement as a sword against the State to strike down her diversion agreement so that it cannot be used to enhance this sentence. The legislature never intended this outcome.”
The district court ruled the Harper County diversion would be counted for purposes of enhancing Warden's sentence to a fourth time DUI offender. The district court found that because the DUI diversion was entered in the Harper County District Court, subject matter jurisdiction was not an issue because district courts have jurisdiction to handle DUI cases whether the offense is a misdemeanor or a felony. The district court farther found K.S.A.2010 Supp. 8–1567(o) does not prohibit diversion agreements for cases involving repeat offenses; the statute simply limits offenders to one agreement during their lifetime.
Subsequently, Warden filed a second objection to her PSI. She argued that pursuant to K.S.A. 22–2908(b)(1), a diversion may not be entered into if there has been a prior conviction for the same offense. Warden contended that K.S.A. 22–2908(b)(1) constituted a specific statutory prohibition against the type of diversion entered into in Harper County, which rendered the diversion agreement illegal. On the other hand, the State contended that Warden already completed the diversion, a contract for which she received the benefit of the bargain, and it was improper for the court to declare a disposition from Harper County illegal.
The district court denied Warden's request and reaffirmed its prior ruling. The district court explained that in the diversion agreement, Warden stipulated “[t]hat on or about September 4th, 2008 in Harper County, Kansas, ... [she] unlawfully [drove] under the influence of alcohol; transport [ed] an alcoholic beverage in an open container; fail[ed] to observe the stop sign and public[ly] consum[ed] an alcoholic beverage.” The district court found it proper to count this admission “as an indication that [Warden] had violated the DUI law” subjecting her to the enhanced penalties the legislature intended for repeat DUI offenders regardless of “whether Harper County screwed up the diversion.”
Accordingly, the district court sentenced Warden, as a fourth time DUI offender, to 90 days' incarceration followed by 12 months' postrelease supervision with the Department of Corrections. The district court recommended work release after 72 hours of confinement if Warden was able to qualify for the program. The district court also fined Warden $2,500.
Warden timely appealed.
Inclusion of Prior DUI Diversion in Calculating Warden's Criminal History Score
On appeal, the parties focus their arguments on whether the Harper County DUI diversion agreement was legally valid. Warden essentially alleges the Harper County prosecutor failed to comply with the DUI diversion statute and, as a result, public policy prohibits inclusion of the illegal diversion as a conviction for purposes of her criminal history score. The parties ignore the dispositive issue in this case: Does Warden have a right to collaterally attack a prior DUI diversion used to enhance her latest DUI sentence?
This issue involves a question of law and the interpretation of statutes, matters over which this court exercises unlimited review. See State v. Elliott, 281 Kan. 583, 586, 133 P.3d 1253 (2006).
According to our Supreme Court, in the interest of promoting finality of judgments and ease of administration, “[a] defendant does not have a constitutional right to collaterally attack a prior conviction used to enhance a current sentence unless the prior conviction was obtained in violation of the right to counsel.” State v. Chiles, 260 Kan. 75, Syl., 917 P.2d 866 (1996); see Elliott, 281 Kan. at 589;State v. McDonald, 272 Kan. 222, Syl. ¶ 4, 32 P.3d 1167 (2001). Importantly, Warden does not contend that her DUI diversion was obtained without counsel. And the record evidence shows that she had the assistance of counsel at the time she entered into the Harper County diversion agreement. As a result, Warden has failed to establish an essential prerequisite to a collateral attack upon her prior diversion.
There is, however, an exception to this prohibition against collateral attacks: A defendant may collaterally attack a prior conviction if the objection is based upon lack of subject matter jurisdiction over the prior offense. See Elliott, 281 Kan. at 588–89. This exception is premised upon the “ ‘well established [rule] that ‘[a]n objection based on lack of subject matter jurisdiction may be raised at any time, whether it be for the first time on appeal or even upon the appellate court's own motion. [Citations omitted.]’ “ 281 Kan. at 588. “ ‘A judgment “void for want of jurisdiction may be attacked at any time and may be vacated because it is a nullity.” [Citations omitted.]’ “ 281 Kan. at 588–89. Thus, in the present case, Warden is only entitled to collaterally attack her diversion agreement if the Harper County District Court lacked jurisdiction to approve the agreement.
On appeal, Warden does not raise or brief the issue of subject matter jurisdiction. But an appellate court has a duty to question jurisdiction on its own initiative. State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010). As a result, we will consider Warden's arguments to determine if they establish a lack of subject matter jurisdiction by the Harper County District Court as a result of the State's handling of Warden's DUI diversion agreement.
Preliminarily, we note that Warden has not designated a sufficient record on appeal. In particular, she has failed to provide this court with copies of the documentation relating to her diversion, including the DUI diversion agreement itself. Without this information it is difficult to definitively determine how the offense was charged or the terms and parameters of the diversion agreement. The burden is on the appellant to furnish a record sufficient to support a claim of error. Without such a record, the claim of alleged error fails. State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008).
Nonetheless, even if this issue was properly before this court, Warden's argument is not persuasive. A prosecutor's failure to comply with the statutory provisions governing the use of a diversion program as an alternative to formal criminal proceedings, K.S.A. 22–2906, et seq. , does not affect the subject matter jurisdiction of the district court to permit the filing of the agreement, staying further proceedings, or recommencing the proceedings if the diversion agreement is revoked.
First and foremost, the legislature enacted K.S.A. 22–2906, et seq. “to establish a uniform procedure for a function which was already in existence in a number of counties across the state,” the exercise of prosecutorial discretion in determining whether to prosecute an action; State v. Greenlee, 228 Kan. 712, 717, 620 P .2d 1132 (1980). “[T]he decision to divert in Kansas resides with the county or district attorney.” State v. Kacsir, 45 Kan.App.2d 409, 419, 251 P.3d 632,rev. denied 292 Kan. –––– (2011). K.S.A. 22–2906 and caselaw does not suggest that a prosecutor's failure to comply with these statutory provisions vitiates subject matter jurisdiction of a district court to hear the matter. In short, K.S.A. 22–2906 does not relate to the subject matter jurisdiction of a district court to permit the filing of a diversion agreement in court or to preside over any subsequent proceedings.
Warden specifically contends that her diversion agreement violated K.S.A. 22–2908(b)(1) and K.S.A.2010 Supp. 22–2909(a). K.S .A. 22–2908(b)(1), which outlines the circumstances under which a county or district attorney shall not enter into a diversion agreement, provides in pertinent part:
“(b) A county or district attorney shall not enter into a diversion agreement in lieu of further criminal proceedings on a complaint if:
(1) The complaint alleges a violation of K.S.A. 8–1567 and amendments thereto and the defendant: (A) Has previously participated in diversion upon a complaint alleging a violation of that statute or an ordinance of a city in this state which prohibits the acts prohibited by that statute; (B) has previously been convicted of or pleaded nolo contendere to a violation of that statute or a violation of a law of another state or of a political subdivision of this or any other state, which law prohibits the acts prohibited by that statute; or (C) during the time of the alleged violation was involved in a motor vehicle accident or collision resulting in personal injury or death.” (Emphasis added.)
As noted by a panel of this court in State v. Bishop, 44 Kan.App.2d 739, 744, 240 P.3d 614 (2010), K.S.A. 22–2908(b)(1) sets forth “three situations when the State may not enter into a diversion agreement with a DUI offender.”
In the present case, it appears the State erred in allowing Warden to accept a DUI diversion in lieu of prosecution when she had, on two prior occasions, been convicted of DUI. Appellate courts have not directly interpreted the effects of a violation of K.S.A. 22–2908(b)(1) under these circumstances, but the statute does not specify a penalty or other consequence for noncompliance. Most importantly, given that the present case involves an attempted collateral attack upon a DUI diversion, nothing in the statutory framework provides or intimates that the State's violation of this prohibition adversely affected the subject matter jurisdiction of the district court.
On appeal, Warden also contends that her diversion agreement violated K.S.A.2010 Supp. 22–2909(a) because it did not contain a waiver of preliminary hearing. K.S.A.2010 Supp. 22–2909(a) provides:
“(a) A diversion agreement shall provide that if the defendant fulfills the obligations of the program described therein, as determined by the attorney general or county or district attorney, such attorney shall act to have the criminal charges against the defendant dismissed with prejudice. The diversion agreement shall include specifically the waiver of all rights under the law or the constitution of Kansas or of the United States to a speedy arraignment, preliminary examinations and hearings, and a speedy trial, and in the case of diversion under subsection (c) waiver of the rights to counsel and trial by jury.”
In State v. Moses, 38 Kan.App.2d 840, Syl. ¶ 2, 173 P.3d 652 (2007), a panel of this court explained:
“Although K.S.A. 22–2909(a) lacks negative language and does not specify a penalty or other consequence for noncompliance, strict compliance with the provision is essential to the preservation of the constitutional rights of the parties affected. The requirement that a diversion agreement contain a specific waiver of certain rights is not simply a technical or procedural requirement, but a condition required for the formation of an enforceable diversion agreement. Therefore, the term ‘shall’ as used in K.S.A. 22–2909(a) is mandatory rather than directory.”
Based upon this interpretation of the statute, the panel in Moses held that a defendant may not be convicted based upon stipulated facts contained within a revoked diversion agreement that did not include a waiver of the right to a preliminary hearing because such an omission invalidates the diversion agreement. 38 Kan.App.2d at 844–45.
Moses is clearly distinguishable from this case, however, because Moses does not involve a collateral attack upon a criminal history score. On the contrary, Moses was a direct appeal of a conviction stemming from a revocation of an invalid diversion agreement. See 38 Kan.App.2d at 841. Furthermore, Moses did not establish any precedent suggesting that a defect in the State's diversion agreement adversely affected the district court's jurisdiction to preside over the post revocation proceedings. Similar to K.S.A. 22–2908(b)(1), a violation of K.S.A.2010 Supp. 22–2909(a) does not affect the subject matter jurisdiction of the district court, as K.S.A. 22–2906, et seq. simply governs exercises of prosecutorial discretion.
In summary, Warden did not have a right to collaterally attack her prior DUI diversion which was treated as a conviction and used to enhance her latest DUI sentence because her prior diversion was not obtained without benefit of counsel. Chiles, 260 Kan. 75, Syl.; see Elliott, 281 Kan. at 589;McDonald, 272 Kan. 222, Syl. ¶ 4. Moreover, Warden has not shown that any procedural error by the State with regard to her diversion deprived the Harper County District Court of subject matter jurisdiction. See 281 Kan. at 588–89. As a result, Warden has failed to establish the essential prerequisites to a collateral attack upon her prior diversion.
Accordingly, we conclude that Warden's objection to the inclusion of her prior DUI diversion as part of her criminal history score constituted an improper collateral attack upon her diversion. The Butler County District Court did not err when it denied Warden's objection to her criminal history and sentenced her as a fourth time DUI offender. State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008) (A district court's decision may be upheld if it reaches the correct result even though it relied upon the wrong ground or assigned erroneous reasons for its decision.).
Affirmed.