Paletta v. City of Topeka
| Decision Date | 07 April 1995 |
| Docket Number | No. 71881,71881 |
| Citation | 20 Kan.App.2d 859,893 P.2d 280 |
| Parties | Shane L. PALETTA, Appellant, v. CITY OF TOPEKA, Kansas, and the Honorable Joseph Cox, Judge of the Topeka Municipal Court, Appellees. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
An uncounseled DUI diversion agreement may be used to enhance sentencing in a subsequent DUI conviction, so long as no imprisonment was imposed as a result of the uncounseled diversion agreement. Following Nichols v. United States, 511 U.S. 738, ---- - ----, 114 S.Ct. 1921, 1926-27, 128 L.Ed.2d 745, 753-54 (1994).
Gary Stone, Legal Intern, and Michael Kaye, Supervising Atty., Washburn Law Clinic, Topeka, for appellant.
Tracy T. Diel, Asst. City Atty., for appellees.
Before ELLIOTT, P.J., and BRAZIL and LEWIS, JJ.
Petitioner, Shane L. Paletta, filed a petition for a writ of habeas corpus. The trial court dismissed the petition as being without merit. This appeal followed.
Petitioner entered into a diversion agreement with the City of Topeka in 1986 in order to avoid being prosecuted for DUI. At the time he entered into the agreement, he was not represented by counsel, was not informed of his right to counsel, and did not waive his right to counsel. Petitioner apparently In 1990, petitioner was again prosecuted for DUI. This appeal arises out of the 1990 prosecution. In that case, petitioner was represented by counsel and was convicted of DUI. He was fined and sentenced to five days in jail and placed on one year's supervised probation.
lived up to the terms of the diversion, and he was never prosecuted or imprisoned for the 1986 DUI charge.
Petitioner appealed his 1990 conviction to the Shawnee County District Court. That court dismissed his appeal. The dismissal was appealed to this court, and we affirmed the decision of the trial court. City of Topeka v. Paletta, No. 68,454, 847 P.2d 1359 unpublished opinion filed March 12, 1993.
A series of remands placed petitioner back before the municipal court in 1993. In June 1993, he moved the municipal court to modify his 1990 sentence, and that motion was denied.
In November 1993, petitioner again asked the municipal court to modify the 1990 sentence. This time, the court did so, modifying the sentence to two days in jail, 10 days' house arrest, a fine of $500, and probation for one year. Petitioner did not take a direct appeal from the modified sentence.
In January 1993, petitioner filed the present action in the district court. That court issued an order staying execution of the municipal sentence originally given in 1990 and modified in 1993. It appears that stay remains in effect.
The petition for habeas corpus was submitted on stipulated facts and admitted documents. The trial court held that the municipal court sentence was legal and dismissed the petition. It is now March 1995, and the sentence imposed originally in 1990 and modified in 1993 has yet to be executed. Indeed, at this stage, the parties litigate whether the sentence imposed was legal.
Because this action was tried on stipulated facts and documents, we exercise de novo review. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, Syl. p 1, 744 P.2d 840 (1987).
Appeals from a municipal court may be taken as provided by K.S.A.1994 Supp. 22-3609 and K.S.A. 12-4602. Judgment of a municipal court is effective upon announcement, and the time for appeal commences upon announcement. City of Lenexa v. Higgins, 16 Kan.App.2d 499, Syl. pp 1, 2, 825 P.2d 1152, rev. denied 250 Kan. 804 (1992). "No appeal shall be taken more than 10 days after the date of judgment appealed from." K.S.A.1994 Supp. 22-3609(2).
In this case, the modified sentence was imposed on November 1, 1993. That sentence was not appealed. Instead, the habeas corpus action was filed on January 30, 1994.
A petition for habeas corpus is not a substitute for appeal in a criminal case. This rule applies to appeals from municipal court. In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 205, 708 P.2d 977 (1985). Despite this general rule, habeas corpus remains an appropriate remedy where constitutional rights are at issue. Petitioner relies upon Gilchrist to confer jurisdiction on this court. In order to determine whether we have jurisdiction over this appeal, we must decide first whether petitioner's constitutional rights are at issue.
Petitioner contends the municipal court enhanced his sentence on the basis of the uncounseled 1986 diversion. Our Supreme Court has determined that an uncounseled diversion agreement cannot be used to enhance the sentence for a subsequent DUI conviction. State v. Priest, 239 Kan. 681, 685, 722 P.2d 576 (1986). "This insures that an individual's Sixth Amendment right to counsel is protected." 239 Kan. at 683, 722 P.2d 576.
The City argues that the municipal court imposed a lawful sentence and that the record does not affirmatively disclose that petitioner's sentence was enhanced or that he was treated as a second-time offender.
To determine whether petitioner's constitutional rights are at issue in this case, we must first determine whether the municipal court, in fact, enhanced his sentence or treated him as a second-time offender. If it did, then this case presents a constitutional issue and we have jurisdiction to consider the merits of the appeal. If the court did not enhance his sentence, he will not be allowed to substitute a direct appeal with a habeas corpus petition.
As will be seen, we conclude that petitioner was sentenced as a second-time offender and that we have jurisdiction over this appeal.
The question is whether petitioner was sentenced as a first- or second-time offender. He argues that his uncounseled 1986 diversion was used as a prior conviction to enhance his sentence and that he was sentenced as a second-time offender. The City argues that the sentence imposed was lawful. It contends that the sentence could have been imposed upon either a first- or second-time offender and that the diversion was not used to enhance petitioner's sentence.
The 1990 sentence clearly treated petitioner as a second-time offender. However, that sentence has been modified; it is past history and irrelevant. The only sentence which is relevant on this appeal is the sentence imposed in 1993 when the 1990 sentence was modified. The record of the 1993 modification does not affirmatively indicate that it was imposed upon petitioner as a second-time offender. Despite the fact that the court did not affirmatively say so, we can only conclude that the 1993 modification was given to petitioner as a second-time offender.
The telling detail is the sentence of defendant to 10 days' house arrest. This is the only term of the modified sentence that could not have been imposed on a first-time offender.
The standard traffic ordinance of Topeka, in effect in December 1990, mirrors K.S.A.1989 Supp. 8-1567. The relevant portions of standard traffic ordinance No. 30 were as follows:
....
"(g) On a second or subsequent conviction of a violation of this section, the court may place the person convicted under a house arrest program to serve the remainder of the minimum sentence only after such person has served 48 hours' consecutive imprisonment.
....
"(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;
....
(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." (Emphasis added.)
It is clear that a sentence of house arrest may only be imposed upon a second-time offender. The emphasized language of standard traffic ordinance No. 30(g) leaves room for no other conclusion. The ordinance only authorizes a sentence of house arrest on a second or subsequent conviction.
Petitioner argues that the sentence of 10 days' house arrest is an illegal sentence, citing State v. Scherzer, 254 Kan. 926, 869 P.2d 729 (1994). The issue in Scherzer was whether house arrest constituted...
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