State v. Brown, 109,475.
| Decision Date | 15 November 2013 |
| Docket Number | No. 109,475.,109,475. |
| Citation | 313 P.3d 105 |
| Parties | STATE of Kansas, Appellee, v. Richard Lee BROWN, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Thomas J. Bath, Jr., and Tricia A. Bath, of Bath & Edmonds, P.A., of Overland Park, for appellant.
Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and STANDRIDGE, JJ.
Richard Brown was convicted of his first driving under the influence (DUI) charge in 1995. He had additional DUI convictions in 2000 and 2009. In March 2011 he was arrested for his fourth DUI. At the time, K.S.A 2010 Supp. 8–1567(o)(3) provided that for sentencing purposes the court could consider “any convictions occurring during a person's lifetime” to determine how many prior DUI convictions Brown had.
On July 1, 2011, K.S.A 8–1567 was amended to provide that in counting prior DUI convictions the sentencing court could consider “only convictions occurring on or after July 1, 2001.” L.2011, ch. 105, sec. 19.
Brown moved to prohibit use of his pre–2001 DUI convictions in determining the severity of his crime. The district court denied Brown's motion, and the case was tried to the court on stipulated facts in March 2012. Brown was found guilty. The court later sustained Brown's objection to including his 1995 conviction in his criminal history and sentenced Brown for a third DUI offense. Brown appeals, arguing that the court erred in not disregarding all of his pre–2001 DUI convictions.
Brown argues that the 2011 amended look-back provision found in K .S.A.2011 Supp. 8–1567(j)(3) is procedural in nature, applied retroactively to his case, and allowed the court to consider only his post-July 1, 2001, DUI convictions.
Brown raises an issue of statutory interpretation over which we have unlimited review. See State v. Messer, 49 Kan.App.2d –––, 307 P.3d 255, 260 (2013), petition for rev. filed September 20, 2013. A statute operates prospectively unless its text clearly indicates the legislature's intent that the statute should operate retroactively. State v. Williams, 291 Kan. 554, 557, 244 P.3d 667 (2010). This rule does not apply if the statutory change does not prejudicially affect the substantive rights of parties and is merely procedural or remedial in nature. 291 Kan. at 557.
It is fundamental that a defendant should be sentenced based on the law in effect at the time the crime was committed. 291 Kan. at 559.
Brown's argument for retroactive application of K.S.A.2011 Supp. 8–1567(j)(3) was rejected by our court in State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012), rev. granted October 1, 2013. The court in Reese determined that the 2011 amendment to this statute altered substantive rights and was not intended by the legislature to be applied retroactively. 48 Kan.App.2d at 90–91. We find the reasoning in Reese to be compelling.
Brown's reliance on State v. Brooker, 27 Kan.App.2d 396, 4 P.3d 1180,rev. denied 269 Kan. 935 (2000), for a contrary result is misplaced. The court in Brooker...
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