City of Dodge City v. Wetzel

• Decision Date: 28 May 1999
• Docket Number: No. 81,188.,81,188.
• Citation: 986 P.2d 353,267 Kan. 402
• Parties: CITY OF DODGE CITY, Appellant, v. RUSSELL WETZEL, Appellee.
• Court: Kansas Supreme Court

267 Kan. 402

986 P.2d 353

CITY OF DODGE CITY, Appellant, v. RUSSELL WETZEL, Appellee.

No. 81,188.

Supreme Court of Kansas.

Opinion filed May 28, 1999.

Terry J. Malone, of Williams, Strobel, Malone, Mason & Ralph, P.A., of Dodge City, argued the cause and was on the brief for appellant.

Michael S. Holland, of Holland and Holland, of Russell, argued the cause and was on the brief for appellee. The opinion of the court was delivered by

LARSON, J.:

The ultimate issue in this appeal is whether Dodge City loses subject matter jurisdiction over Russell Wetzel when a second driving under the influence (DUI) charge and conviction is appealed to the district court, and before trial Wetzel commits and obtains a diversion from a new DUI offense.

The trial court held that because of the timing of the convictions and our holding in City of Junction City v. Cadoret, 263 Kan. 164, 946 P.2d 1356 (1997), that municipalities have no jurisdiction over felony charges, the second DUI offense became a felony offense requiring the conviction to be vacated and the charges dismissed.

We disagree with the trial court.

We first set forth the tangled facts by a chronology of Wetzel's various DUI charges and the time and nature of the actions thereon:

February 24, 1991 Wetzel charged in Manhattan with DUI;

March 20, 1991 DUI diversion agreement in Manhattan on February 24, 1991, charge;

September 24, 1995 Wetzel charged in the case before us on appeal with DUI in Dodge City; complaint does not specify whether it is a first or second offense;

October 14, 1996 Wetzel charged in Pawnee County with DUI;

November 13, 1996 Wetzel convicted of DUI in Dodge City Municipal Court, sentenced as if it were a second offense, appeal is perfected to Ford County District Court;

January 9, 1997 DUI diversion agreement in Pawnee County on October 14, 1996, charge;

November 21, 1997 Wetzel convicted of DUI by jury in Ford County District Court, Wetzel sentenced as a first DUI offender to 30 days' imprisonment and a fine of $200; after 48 consecutive hours of imprisonment, Wetzel is placed on probation for two years December 1, 1997 Dodge City moves to correct the illegal sentence, suggesting K.S.A. 8-1008(c) requires a presentence alcohol and drug evaluation, that Wetzel had been sentenced in Dodge City Municipal Court as a second-time DUI offender but on appeal as a first-time offender based upon Dodge City's failure to give notice of the severity level charged, State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996), and the court should have the benefit of more recent information concerning Wetzel's subsequent DUI offenses;

January 13, 1998 Trial court grants Dodge City's motion to vacate Wetzel's sentence of November 21, 1997, finding a presentence drug and alcohol evaluation pursuant to K.S.A. 8-1008(c) should have been ordered, that State v. Masterson is not applicable to DUI prosecutions in Municipal Court;

February 9, 1998 Wetzel moves to set aside his judgment/ conviction, contending he is now a thirdtime offender, that Dodge City does not have subject matter jurisdiction pursuant to the City of Junction City v. Cadoret, 263 Kan. 164, which held that municipalities do not have jurisdiction over crimes designated as felonies by a State statute, that the existence of jurisdiction may be considered and raised at any time and may not be waived, and that a judgment rendered without jurisdiction is void;

April 9, 1998 Trial court finds Wetzel had entered into DUI diversion agreements dated March 20, 1991, and January 9, 1997, making the November 21, 1997, conviction a third DUI conviction over which the Municipal Court of Dodge City did not have subject matter jurisdiction pursuant to City of Junction City v. Cadoret. The court declared the November 21, 1997, DUI conviction void and dismissed the complaint;

April 17, 1998 Dodge City appeals the trial court's April 9, 1998, decision setting aside Wetzel's DUI conviction and dismissing the complaint pursuant to K.S.A. 22-3602(b)(1).

The interpretation of statutes involves questions of law over which our standard of review is unlimited. State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).

The definition and penalties relating to the crime of DUI at the time applicable to the conviction on appeal are set forth at K.S.A. 1994 Supp. 8-1567, which, in relevant part, provides:

"(f) On the third or a subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $2,500....

"(k) For the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:

(1) `Conviction' includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;

(2) `conviction' includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;

(3) only convictions occurring in the immediately preceding five years, including prior to the effective date of this act, shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offender, whichever is applicable; and

(4) it is irrelevant whether an offense occurred before or after conviction for a previous offense."

Dodge City contends the DUI offense committed September 24, 1995, was a second offense resulting in it having continuing subject matter jurisdiction over the charge during its appeal to the district court and the conviction should be reinstated.

Dodge City seizes on the wording of K.S.A. 1994 Supp. 8-1567(k)(3), that only convictions occurring in the immediately preceding 5 years shall be taken into account for the purpose of determining whether a conviction is the first, second, or third. It reasons the February 24, 1991, offense occurred within the preceding 5 years of the current offense, which occurred on September 24, 1995, but that the offense occurring October 14, 1996, is not within the immediately preceding 5 years of the offense that occurred on February 24, 1991, and could not become a second conviction for sentencing purposes. (By definition, "precede" means "to come before in time." The 1991 date precedes the 1995 and 1996 dates, but the essence of the argument is whether the offenses are within "the immediately preceding five years.")

Wetzel argues that when the Kansas Legislature added the wording now found in K.S.A. 8-1567(k)(4) that "it is irrelevant whether an offense occurred before or after conviction for a previous offense" (L. 1985, ch. 48, § 9), it did so to change the result in the cases of State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983) and City of Chanute v. Wilson, 10 Kan. App.2d 498, 704 P.2d 392, rev. denied 238 Kan. 877 (1985), where it was held that enhancements required that each succeeding offense be committed after conviction for the preceding offense. When the statutory language is applied, Wetzel contends, it does not now matter when the conviction finally results for an earlier charge. He further contends that the October 14, 1996, Pawnee County offense resulting in a January 9, 1997, diversion must be counted as a second offense, making the Dodge City charge a third offense and, therefore, a felony required to be dismissed under the City of Junction City v. Cadoret ruling.

Wetzel also maintains the recent decision of State v. Bandy, 25 Kan. App.2d 696, 971 P.2d 749 (1999), although relating to the offense of driving with a suspended license, requires a "prior conviction" to be construed as one which occurred prior to sentencing in the current case regardless of the time that the offense that led to the conviction occurred. We commence our analysis with the basic statutory interpretation rule that

"`[i]n construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.'" KPERS v. Reimer & Kroger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).

It is also essential that we recognize that as "a general rule statutes should be construed to avoid unreasonable results." Wells v. Anderson, 8 Kan. App.2d 431, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983).

In an attempt to increase highway safety and reduce recidivism, the Kansas Legislature has throughout the years increased penalties and criminal levels for repeat offenders. This pattern has been specifically applied to individuals who continue to consume alcoholic beverages and drive. Justice Six explained the enactments relating to DUI offenders in State v. Masterson, 261 Kan. 158, 163, 929 P.2d 127 (1996), when he said:

"In 1993, the legislature amended K.S.A. 8-1567(d), (e), and (f), adding to the prescribed penalties for first, second, and third DUI's the crime classifications of class B nonperson misdemeanor for a first offense, class A nonperson misdemeanor for a second offense, and severity level 9 nonperson felony for a third offense. L. 1993, ch. 259, § 8. Before the amendment, all DUI's were misdemeanors of the same class. The sentencing options would depend on whether the DUI was a first, second, or third conviction. In 1994, the legislature amended subsection (f), deleting `severity level 9' and leaving the classification as `nonperson

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