State v. Clevenger, 55934

• Decision Date: 13 July 1984
• Docket Number: No. 55934,55934
• Citation: 235 Kan. 864,683 P.2d 1272
• Parties: STATE of Kansas, Appellee, v. Richard E. CLEVENGER, Appellant.
• Court: Kansas Supreme Court

Page 1272

683 P.2d 1272

235 Kan. 864

STATE of Kansas, Appellee, v. Richard E. CLEVENGER, Appellant.

No. 55934.

Supreme Court of Kansas.

July 13, 1984.

Syllabus by the Court

In a driving under the influence (DUI) action where the defendant challenges the use of a previous diversion agreement as a "conviction" for purposes of sentence enhancement, it is held: The knowing and voluntary entering into a diversion agreement in lieu of a trial is a waiver of a defendant's constitutional due process rights and is considered a conviction for sentence enhancement purposes according to the agreement.

Edward W. Dosh, Parsons, argued the cause and was on brief for appellant.

Edwin H. Bideau III, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on brief for appellee.

HERD, Justice:

This is an appeal by Richard E. Clevenger from his conviction of two counts of vehicular homicide, K.S.A. 21-3405, and one count of driving under the influence (DUI) of alcohol, K.S.A. 1983 Supp. 8-1567.

Richard E. Clevenger, appellant, was charged with three counts of vehicular homicide in violation of K.S.A. 21-3405, driving under the influence of alcohol or drugs (DUI) in violation of K.S.A. 1983 Supp. 8-1567, driving without a valid operator's license in violation of K.S.A. 1983 Supp. 8-262, reckless driving in violation of K.S.A. 8-1566, and following too closely in violation of K.S.A. 8-1523. The charges stem from an accident on January 29, 1983. Clevenger was traveling north on U.S. Hwy. 59 and collided head-on with another vehicle just outside Erie, Kansas. As a result of the accident, all three occupants of the car hit by appellant, two women and one boy, were killed. One of the women who died was pregnant and her fetus was also killed. At the time of the accident, Clevenger was legally blind, had no driver's license, and was under a diversion agreement from a previous DUI arrest. That day he had been drinking at local taverns in Parsons, in violation of his diversion agreement.

Appellant entered a plea of nolo contendere on May 17, 1983, to two counts of vehicular homicide and one count of DUI and was found guilty by the court. The remaining counts were dismissed. A presentence investigation was conducted including a psychological evaluation and medical report from the appellant's opthalmologist. The medical report showed appellant was legally blind in both eyes. The investigation also revealed appellant had been barred from driving as early as March 27, 1976. The presentence report recommended imposition of the maximum sentence provided by law and that the sentences run consecutively. The report also noted appellant denied being drunk the night of the accident, even though his blood alcohol content was .15%, and that he continued to drink alcohol after the fatality accident.

On June 28, 1983, he was sentenced. The evidence presented in connection with sentencing showed appellant was previously charged in Labette County, Kansas, on October 20, 1982, with one count of DUI in violation of K.S.A. 1983 Supp. 8-1567, and one count of operating a motor vehicle while in possession of an open container in violation of K.S.A. 41-804.

Appellant chose to enter into a diversion agreement in that case on December 20, 1982. As a result, the case was dismissed without prejudice against Clevenger pursuant to an order of December 21, 1982.

Due to the December, 1982 diversion agreement, the appellant was sentenced in the instant case as a second time offender. He received a one-year sentence on each of the vehicular homicide counts and one year on the DUI and was fined $2500 on each of the vehicular homicide counts and $1000 on the DUI count. These sentences were ordered to run consecutively.

Subsequently, appellant failed to complete the diversion program from his original DUI charge. Criminal proceedings in that case were resumed on May 3, 1983.

The sole issue in this case is whether consideration of the diversion agreement as a conviction, for purposes of sentencing under K.S.A. 1983 Supp. 8-1567, constitutes a violation of appellant's constitutional right to due process since his guilt or innocence was not adjudicated prior to entering into the diversion agreement.

Appellant argues the diversion agreement provision of 8-1567 is unconstitutional. K.S.A. 1983 Supp. 8-1567, which mandates more severe punishment for those "convicted" twice of violating the statute, states the term "conviction" includes "being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings in a complaint alleging a violation of this section." K.S.A. 1983 Supp. 8-1567(i). The section of the statute appellant challenges, therefore, defines diversion as a "conviction." The effect of this definition is that a defendant who has accepted diversion for his first charge is required to receive a harsher sentence if he is charged a second time and convicted of a violation of the statute. Appellant argues this mandates a defendant receive a harsher sentence without due process since the alleged violation which led to diversion was never adjudicated.

Appellant notes other sentence enhancement statutes do not include diversion as a prior "conviction." See K.S.A. 1983 Supp. 8-262(a), driving with a suspended license; K.S.A. 21-3708, writing worthless checks; and K.S.A. 1983 Supp. 21-4504, the Habitual Criminal Act. He contends the absence of the word "diversion" from these statutes indicates the DUI law is the exception, not the rule. A statute is not unconstitutional merely because it is an exception. Further, it is important to note the history of diversion in Kansas.

Diversion has been offered as a statutory option to institutionalization only since 1978. The various statutes noted by appellant which do not include diversion were enacted prior to 1978.

Black's Law Dictionary 403 (4th ed. rev. 1968), states conviction: "[I]n ordinary phrase ... is the finding by the jury of a verdict that the accused is guilty. But, in legal parlance, it often denotes the final judgment of the court." Diversion could be considered the final judgment of the court since it allows the defendant to follow a program which, if successfully completed, results in dismissal of the charges. There is no plea of guilty or otherwise in a diversion agreement since the law specifically disallows the prosecution from taking one. See K.S.A. 1983 Supp. 22-2910. If, however, the program is not completed, the defendant is prosecuted and the program is then not the final action in the case. Thus, diversion is not a conviction in the traditional sense. This alone, however, is not lack of due process.

Other states do not require a finding of guilt for the first violation of a law in order to support an enhanced sentence for a second violation. In South Carolina, forfeiture of bail alone is automatically considered a conviction when determining whether an individual is a habitual violator. S.C.Code Ann. § 56-1-10(11) (Law.Co-op.1976)....