State v. Chamberlain

Decision Date30 September 2005
Docket NumberNo. 91,007.,91,007.
Citation120 P.3d 319
PartiesSTATE of Kansas, Appellee, v. Richard H. CHAMBERLAIN, Appellant.
CourtKansas Supreme Court

R. Kent Sellers, of Lathrop & Gage, L.C., of Kansas City, Missouri, argued the cause, and Robb Edmonds, of Bath & Edmonds, P.A., of Overland Park, Kansas, was with him on the briefs for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Phill Kline, attorney general, were with him on the briefs for appellee.

Randall J. Forbes, of Frieden, Haynes & Forbes, of Topeka, Kansas, was on the brief for amicus curiae Kansas Association of Criminal Defense Lawyers.

The opinion of the court was delivered by DAVIS, J.:

Richard H. Chamberlain petitions this court for review of the Court of Appeals' decision in State v. Chamberlain, No. 91,007, 2004 WL 1965521, unpublished opinion filed September 3, 2004. The Court of Appeals affirmed his conviction and sentence for a third driving under the influence (DUI) offense, an unclassified nonperson felony under K.S.A. 8-1567(f) and (l)(3). He contends that the use of his prior diversion agreements to enhance his sentence under 8-1567 violated the Ex Post Facto and Contract Clauses of the United States Constitution. We granted the defendant's petition for review under K.S.A. 20-3018(b), and we affirm his conviction and sentence.

On March 22, 2002, the defendant was charged with DUI after two prior convictions for conduct committed on March 1, 2002. The defendant had previously entered into two DUI diversion agreements on February 27, 1986, and September 11, 2001.

The defendant moved to dismiss or, in the alternative, deny the State's use of a prior diversion agreement to enhance his sentence or classify his crime. He argued that the 2001 amendment to 8-1567, see L.2001, ch. 200, sec. 14, which classified his 1986 diversion as a prior conviction, was an unconstitutional violation of the Ex Post Facto and Contract Clauses of the United States Constitution. See U.S. Const. Art. I, § § 9, 10. The trial court denied his motion and on stipulated facts found the defendant guilty of DUI in violation of K.S.A. 8-1567. The defendant was sentenced to 12 months of probation with an underlying prison term of 12 months, commencing with 7 days in custody followed by 83 days of house arrest.

In addressing the defendant's ex post facto sentencing argument, the Court of Appeals, like the trial court, relied upon City of Norton v. Hurt, 275 Kan. 521, 66 P.3d 870 (2003), wherein this court rejected this same argument based upon an enhanced sentence after a second DUI municipal offense. In rejecting his Contract Clause argument, the Court of Appeals found that there were no express limitations on future use and no provisions incorporating current statutes into the 1986 diversion agreement, making it impossible to determine the extent to which the defendant relied on such limitations as a factor in entering into the diversion agreement. The Court of Appeals then concluded that even if the 1986 statute, K.S.A.1986 Supp. 8-1567(j)(3) would be read into the diversion agreement, the defendant still failed to show that his contract rights were impaired because the DUI statute was still based upon his current conviction, not past convictions, and the law placed no limitations on any prior diversion agreement.

Diversions Under Kansas Law

Resolution of the constitutional issues raised in this case first requires a brief review of diversions under Kansas law. In Kansas, after a complaint charging a defendant with the commission of a crime has been filed but before a conviction, the State may propose a diversion agreement. K.S.A. 22-2907(1); see K.S.A. 12-4414(a). A diversion agreement is "the specification of formal terms and conditions which a defendant must fulfill in order to have the charges against him or her dismissed." K.S.A. 22-2906(4); see K.S.A. 12-4413(d). "No defendant shall be required to enter any plea to a criminal charge as a condition for diversion." K.S.A. 22-2910; see K.S.A. 12-4417. "[E]ntering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining." K.S.A.2004 Supp. 8-1567(p). Diversion is, therefore, a means to avoid a judgment of criminal guilt. Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001); see K.S.A. 22-2906(3) and (4); K.S.A. 12-4413(c) and (d).

"If the defendant has fulfilled the terms of the diversion agreement, the district court shall dismiss with prejudice the criminal charges filed against the defendant." K.S.A.2004 Supp. 22-2911(b); see K.S.A. 12-4416(a). The city, county, or district attorney shall forward to the Kansas Bureau of Investigation and the Kansas Department of Revenue Division of Vehicles a record of the fact that a defendant did or did not fulfill the terms of a diversion agreement. The record shall be made available upon request to any county, district or city attorney, or court. K.S.A.2004 Supp. 22-2911(c) and (d); see K.S.A. 12-4412 and K.S.A. 12-4416(e). Diversions are not counted as part of a defendant's criminal history. State v. Macias, 30 Kan.App.2d 79, 81, 39 P.3d 85, rev. denied 273 Kan. 1038 (2002). Kansas courts have applied contract principles when interpreting diversion agreements. See Petty, 270 Kan. at 853-54, 19 P.3d 167; see also State v. Boley, 279 Kan. 989, Syl. ¶ 1, 113 P.3d 248 (2005) (applying fundamental contract principles to plea agreements).

Ex Post Facto

From the time of the 1986 diversion agreement until 2001, 8-1567 provided that only DUI convictions or diversion agreements "occurring in the immediately preceding five years, including prior to the effective date of this act, shall be taken into account" for purposes of determining the classification level of offense under the DUI statute. See K.S.A.1986 Supp. 8-1567(j)(1), (3); K.S.A. 8-1567(l)(1), (3) (Furse 1991). As amended in 2001, see L.2001, ch. 200, sec.14, any DUI conviction including "entering into a diversion agreement" and "occurring during a person's lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth, or subsequent offender." K.S.A. 8-1567(l)(1), (3); now K.S.A.2004 Supp. 8-1567(m)(1), (3). The defendant argues that K.S.A. 8-1567 is an unconstitutional ex post facto law as applied to his case.

Our standard of review involving the constitutionality of a statute is well established:

"The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken it must clearly appear the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. A challenge to the constitutionality of a statute is a question of law and this court has unlimited review." State v. Martis, 277 Kan. 267, 298, 83 P.3d 1216 (2004).

"Article I, Section 10, of the United States Constitution provides: `No State shall . . . pass any . . . ex post facto Law.'" State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997). The United States Supreme Court has set forth four categories of ex post facto violations:

"`1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.'" Stogner v. California, 539 U.S. 607, 612, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003) (quoting Calder v. Bull, 3 U.S. [3 Dall.] 386, 390-91, 1 L.Ed. 648 [1798]).

See Myers, 260 Kan. at 676, 923 P.2d 1024.

The following two elements must be present before a law will be considered an ex post facto violation: "(1) The law must be retrospective, applying to events occurring before its enactment, and (2) it must alter the definition of criminal conduct or increase the penalty by which a crime is punishable." Anderson v. Bruce, 274 Kan. 37, 43, 50 P.3d 1 (2002). In other words: "The law must be retrospective, applying to events occurring before its enactment, and it must disadvantage the offender affected by it." Stansbury v. Hannigan, 265 Kan. 404, 412, 960 P.2d 227, cert. denied 525 U.S. 1060, 119 S.Ct. 629, 142 L.Ed.2d 567 (1998) (citing Weaver v. Graham, 450 U.S. 24, 29, 67 L.Ed.2d 17, 101 S.Ct. 960 [1981]). The critical question in evaluating an ex post facto claim is whether the law changes the legal consequences of acts completed before its effective date. Weaver, 450 U.S. at 31, 101 S.Ct. 960; State v. Armbrust, 274 Kan. 1089, 1093, 59 P.3d 1000 (2002).

This appeal focuses on the inclusion of the defendant's 1986 diversion agreement, as his subsequent 2002 diversion occurred after the 2001 amendment. The defendant argues that the amended DUI statute retroactively changes the legal consequences of his 1986 diversion contract by making it a conviction for life instead of subject to a 5-year "immediately preceding" decay period under prior law. But see State v. Sedillos, 279 Kan. 777, Syl. ¶ ¶ 6 and 9, 112 P.3d 854 (2005). He argues that he fulfilled the terms of his 1986 diversion contract, that a full 5 years passed under the previous law before enactment of the 2001 amendment, and that the use of his...

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