State v. Booze, s. 58004

• Citation: 238 Kan. 551,712 P.2d 1253
• Decision Date: 17 January 1986
• Docket Number: Nos. 58004,58005,s. 58004
• Parties: STATE of Kansas, Appellee, v. Lawrence N. BOOZE, Appellant.
• Court: United States State Supreme Court of Kansas

Page 1253

712 P.2d 1253

238 Kan. 551

STATE of Kansas, Appellee, v. Lawrence N. BOOZE, Appellant.

Nos. 58004, 58005.

Supreme Court of Kansas.

Jan. 17, 1986.

Syllabus by the Court

1. To enhance the sentence of a defendant as a second offender under K.S.A.1983 Supp. 8-1567, the previous conviction must have occurred prior to the commission of the principal offense. Following State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983).

2. For purposes of enhancing the sentence of a defendant as a second offender under K.S.A.1983 Supp. 8-1567, a diversion agreement is considered a conviction when it is first entered into. K.S.A.1983 Supp. 8-1567 does not require the diversion agreement to be completed and the charges dismissed with prejudice before it is considered a conviction for purposes of sentencing.

Daniel E. Monnat, of Fisher & Monnat, Wichita, argued the cause, and Stanley Spurrier, III, of the same firm, was with him on the brief, for appellant.

Kimberly Gee Vines, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with her on the brief, for appellee.

SCHROEDER, Chief Justice:

Lawrence N. Booze (defendant-appellant) appeals his sentence as a second offender for driving under the influence of alcohol. K.S.A.1983 Supp. 8-1567(d). The defendant contends that a conviction on the first offense did not precede the commission of the second offense; therefore, the "sequential relationship" requirement of State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983), was not met. Accordingly, the defendant claims the trial court erred by failing to sentence him as a first offender on the second conviction.

The defendant was cited for driving under the influence of alcohol on July 3, 1983, in Sedgwick County, Kansas. On December 23, 1983, the defendant entered into a diversion agreement with the State on this charge. The diversion was to last for one year, at the end of which--providing the defendant did not violate the terms of the agreement--the charges would be dismissed with prejudice. K.S.A.1983 Supp. 22-2911. On November 30, 1984, approximately one month before the end of the diversion, the defendant was again cited for DUI in Sedgwick County, Kansas. Shortly thereafter, the State filed a motion to terminate the defendant's diversion and reinstate prosecution on the first offense due to the defendant's failure to comply with the terms of the agreement.

The proceedings on both the first and second DUI offenses occurred on February 21, 1985, in the Sedgwick County District Court. The defense counsel announced that an agreement had been reached with the State whereby the defendant would consent to revocation of his diversion and would plead guilty to both charges while the State would not oppose the defendant's legal argument that he should be sentenced as a first offender on both convictions. The State also agreed to recommend the minimum sentences. Thereafter, the defendant did plead guilty to both charges.

At the sentencing hearing on March 13, 1985, the trial judge informed the defendant that, according to his interpretation of K.S.A.1983 Supp. 8-1567(i), the second DUI offense would be subject to mandatory enhancement and that he would pronounce sentence accordingly. The defendant was given an opportunity to withdraw his plea, but he declined to do so. The court then proceeded to sentence the defendant as a first offender on the original DUI charge, and as a second offender on the second DUI charge. This appeal followed.

The sole issue in this case is whether a diversion agreement becomes a "conviction" for purposes of sentencing under K.S.A.1983 Supp. 8-1567 when it is first entered into, or not until the diversion has been completed and the charges dismissed with prejudice.

Under K.S.A.1983 Supp. 8-1567, a previous conviction of the same offense is not an element of the substantive crime, but serves only to enhance punishment. The statute itself is a "self-contained habitual criminal act." See State v. Loudermilk, 221 Kan. 157, 161, 557 P.2d 1229 (1976). The term "conviction" is defined in 8-1567(i) as follows:

"For the purpose of determining whether a conviction is a first, second or third or subsequent conviction for the purpose of sentencing under this section, the term '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. For such purpose 'conviction' also includes being convicted of a violation of a law of another state or an ordinance of any municipality 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 a law or ordinance. For the purpose of this section, only convictions occurring in the immediately preceding five years, including prior to the effective date of this act, shall be taken into account." (Emphasis added.)

The defendant argues that in order for a diversion to truly be "in lieu of further criminal proceedings," the diversion must have been completed and all charges dismissed. Until that time, the charges may be reinstated if the defendant breaches his agreement, and "further criminal proceedings" had. In the case at bar, the second charge arose during the diversion period. Following this second offense, the charges on the first offense were reinstated and the defendant was later convicted--on the same day--of both charges. The defendant argues that this sequence--offense, offense, conviction, conviction--violates the "sequential relation" requirement for enhancement of sentences as stated in State v. Osoba, 234 Kan. at 444, 672 P.2d 1098:

" '[F]or enhancement of sentence of a defendant as a second offender [under K.S.A. 8-1567], the previous conviction must have occurred prior to commission of the principal offense.' "

Accordingly, the defendant claims the sentence on his second DUI conviction should not have been enhanced.

The State, on the other hand, argues that the Osoba sequential relation requirement was complied with in this case because there was a "conviction" on the first offense at the moment the defendant entered into the diversion agreement. The State further argues that this court's holding in State v. Clevenger, 235 Kan. 864, 683 P.2d 1272 (1984), is dispositive of the case at bar.

In Clevenger, as in the instant case, the defendant was charged with his second DUI offense while he was on diversion for a previous DUI offense. Accordingly, charges on the first offense were reinstated. The defendant was then sentenced as a second-time offender on the second offense. The defendant appealed the enhanced conviction, claiming that considering diversion to be a "conviction" for purposes of sentencing constituted a violation of his constitutional right to due process since his guilt or innocence had not been adjudicated prior to entering into the diversion agreement.

After considering the nature of diversion agreements and the public policy behind the enhanced sentencing statute, the court concluded that by entering into a diversion agreement, the defendant waived his rights to due process; therefore, construing "conviction" to include diversion did not violate his constitutional rights.

Due to the factual setting of the case, the court, in order to reach its holding, necessarily assumed that K.S.A.1983 Supp. 8-1567(i) includes a diversion, which has not been completed, in its definition of "conviction." However, the issue of whether this was the correct interpretation of 8-1567(i) was not raised in Clevenger, and the court did not address it. Therefore, the instant case is not controlled by the decision in Clevenger, although much of the rationale of that case is persuasive.

The question now before this court is one of statutory interpretation. Under K.S.A.1983 Supp. 8-1567(i), the term "conviction" includes "entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section." Must the diversion be completed before it operates as a "conviction" under the statute?

The defendant argues that if the drafters of the statute had intended that the mere entry into a diversion agreement would be considered a "conviction," they would not have needed the additional language "in lieu of further criminal proceedings." The defendant points to the rule of statutory construction which states that effect must be given, if possible, to the entire act and every part thereof, and cites State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 (1984), to support his argument. Since "further criminal proceedings" may be instigated up until the time the diversion is completed, the words "in lieu of further criminal proceedings" can only mean--according to the defendant--that the diversion has been completed.

By focusing on the language "in lieu of further criminal proceedings," the defendant has failed to read the operative language of the statute in its entirety. The whole phrase reads "entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section." (Emphasis added.) If the drafters had ended the phrase after the word "diversion" (as defendant suggests they would have had they meant that simply entering into diversion operates as a "conviction"), it would have been possible to interpret the statute to mean entering into diversion on a charge other than for DUI. This was obviously not their intent. Therefore, the additional language "in lieu of further criminal proceedings on a complaint alleging a violation of this section" is necessary to specify what charge was diverted. Also,...