State v. Elliott

• Citation: 133 P.3d 1253
• Decision Date: 28 April 2006
• Docket Number: No. 92,853.,92,853.
• Parties: STATE of Kansas, Appellant, v. Joey R. ELLIOTT, Appellee.
• Court: Kansas Supreme Court

Page 1253

133 P.3d 1253

STATE of Kansas, Appellant, v. Joey R. ELLIOTT, Appellee.

No. 92,853.

Supreme Court of Kansas.

April 28, 2006.

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 brief for appellant.

Michelle A. Davis, assistant appellate defender, argued the cause and was on the brief for appellee.

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

Joey R. Elliott was charged in district court with driving with a suspended license and driving under the influence of alcohol (DUI) with two or more prior DUI convictions. A jury found defendant guilty of the charged offenses. Prior to sentencing, defendant challenged four prior municipal court DUI convictions which were included in his criminal history for sentencing purposes. The sentencing court agreed in part and excluded two prior convictions for criminal history scoring purposes. The Court of Appeals affirmed. This court granted the State's petition for review.

Elliott did not challenge his convictions in the district court, but rather his criminal history classification used for sentencing purposes. Thus the sole issue raised by the State on appeal is whether the district court erred in excluding, for sentencing purposes, two of Elliott's prior municipal court DUI convictions on the ground that the municipal court lacked subject matter jurisdiction.

There is no dispute about the facts.

In June 2003, Elliott was charged in the district court with driving under the influence of alcohol with two or more prior DUI convictions in violation of K.S.A. 8-1567. In the same complaint, he was charged with driving with a suspended license in violation of K.S.A. 8-262 and K.S.A. 21-4502(1)(b).

The jury found Elliott guilty of the charged offenses. The presentence investigation report revealed that Elliott had five prior DUI convictions, all committed within a 5-year period. The first three prior DUI convictions occurred in October 1994 in municipal court and were listed as misdemeanors. The fourth prior DUI conviction occurred in February 1996 in municipal court and was also listed as a misdemeanor. The fifth prior DUI conviction, a felony, occurred in September 1998 in district court.

Elliott objected in writing to his criminal history, as shown in the presentence investigation report. He argued that several of his prior municipal court DUI convictions should have been classified as felonies rather than misdemeanors, thus depriving the municipal court of jurisdiction. Because the first three convictions occurred on the same day in a court of no record, he argued, the order could not be determined and all should be stricken. Those convictions and the subsequent conviction in municipal court should be stricken, he argued, which would reduce the number of his prior DUI convictions to the one that was prosecuted in district court and would affect sentencing in the present case.

The trial court struck two of Elliott's prior DUI convictions from his criminal history score, convicted him of felony DUI as a fourth-time offender under K.S.A. 8-1567(g), and sentenced him to 9 months in jail. The trial court reasoned as follows:

"Cities are permitted to enact ordinances which also proscribe operating a vehicle while under the influence of alcohol. K.S.A. 8-1567(o)(1). However, these ordinances may not impose penalties that are harsher or more lenient than those penalties provided for in the state statute. Id. K.S.A. 8-1567 provides that any DUI conviction after the second such conviction will be considered a felony. K.S.A. 8-1567(f)-(g). Though municipal courts are permitted to prosecute those who drive under the influence of alcohol, they lose jurisdiction over the crime when prior convictions elevate it to a felony under state law. K.S.A. 22-2601; City of Junction City v. Cadoret, 263 Kan. 164, 174, 946 P.2d 1356 (1997).

"The state contends that all of Mr. Elliott's prior DUI convictions in municipal court remain valid, only the sentences are considered illegal. It has cited State v. Frazier, 30 Kan.App.2d 398, 42 P.3d 188 (2002), in support of this assertion. But, Frazier merely addressed a situation where a defendant was sentenced to a harsher sentence where two separate felony statutes proscribed the same conduct. Id., at 403-04, 42 P.3d 188. The Court of Appeals did not consider a situation where a court was entirely without jurisdiction to hear the case. Cadoret squarely held that municipalities may not prosecute third and subsequent violations of city ordinances for driving while intoxicated because such violations are felonies under K.S.A. 8-1567. Cadoret, 263 Kan. at Syl. ¶ 6. A conviction in a court that lacks jurisdiction is void. State v. Larson, 265 Kan. 160, 161, 958 P.2d 1154 (1998) (citing State v. Shofler, 9 Kan.App.2d 696, 687 P.2d 29 (1984)). Mr. Elliott's failure to object to the classification of his prior DUI convictions at sentencing hearings for prior convictions does not waive his ability to now contest them as held in State v. Hobbs, 276 Kan. 44, 57, 71 P.3d 1140 (2003). Subject matter jurisdiction over a prosecution can never be waived. State v. Randolph, 19 Kan.App.2d 730, 876 P.2d 177 (1994) (citations omitted).

"The conviction on February 2, 1996 in Olathe Municipal Court is void for want of jurisdiction as Mr. Elliott had at least two prior convictions. It may not be used as a basis for imposing the sentence in this case. Mr. Elliott contends that all three convictions entered on October 21, 1994 in Olathe Municipal Court are defective as the court lacked jurisdiction because it is unknown as to which plea was entered first. At the time the convictions were recorded, Mr. Elliott had no previous DUI convictions on his record. The municipal court was within its jurisdiction to accept his plea to two of the charges. Had Mr. Elliott pled to two charges that day, instead of three, there would be no confusion. It makes little sense to allow a defendant to escape all liability because he admitted to driving while intoxicated three times instead of two. The courts must sensibly and reasonably interpret the law to give effect to legislative design and intent. State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996) (citing State v. Cox, 258 Kan. 557, 908 P.2d 603, Syl. P 7 [1995]). To allow a defendant to avoid liability because he violated the law three times, instead of two, would fail to give effect to the basic philosophy and intent of recidivist statutes. City of Dodge v. Wetzel, 267 Kan. 402, 409, 986 P.2d 353 (1999) (quoting State v. Lohrbach, 217 Kan. 588, 591 [1975])."

In this case involving a question of law and the interpretation of statutes, the court's review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003); State v. Larson, 265 Kan. 160, 162, 958 P.2d 1154 (1998).

In its brief in the Court of Appeals, the State argued that the trial court had improperly sustained Elliott's collateral attacks on his municipal court convictions. The State contended that City of Junction City v. Cadoret, 263 Kan. 164, 946 P.2d 1356 (1997), could not be retroactively applied to support Elliott's collateral attack on his municipal court convictions and that he forfeited the right to attack any infirmity in a charge to which he pled guilty. Elliott countered that he did not seek to have Cadoret retroactively applied to his prior DUI convictions, but rather sought to apply the decision in his current sentencing procedure. He also noted that the record does not show whether he pled guilty in any of the municipal court DUI cases. He urged the Court of Appeals to affirm the trial court's conclusion that the municipal court lacked jurisdiction of two of his prior DUI convictions. The Court of Appeals affirmed the trial court's decision. Elliott, slip op. at 23.

The jurisdiction of municipal and district courts is statutorily fixed. In Cadoret, 263 Kan. at 168, 946 P.2d 1356, the court stated:

"K.S.A. 12-4104 states: `The municipal court of each city shall have jurisdiction to hear and determine cases involving violations of the ordinances of the city.' K.S.A. 22-2601 relates to the criminal jurisdiction of district courts and reads: `The district court shall have exclusive jurisdiction to try all cases of felony and other criminal cases under the laws of the state of Kansas.'

"A reading of these statutes clearly shows that crimes which are designated as felonies can only be charged and tried in district courts, not in municipal courts."

K.S.A.2005 Supp. 8-1567(a) provides that no person shall operate or attempt to operate any vehicle while under the influence of alcohol. Any city or county may enact an ordinance or resolution prohibiting the same conduct-operating or attempting to operate a vehicle while under the influence of alcohol. K.S.A.2005 Supp. 8-1567(o)(1). Ordinances or resolutions may not impose penalties that are harsher or more lenient than the statutory penalties. K.S.A.2005 Supp. 8-1567(o)(1). K.S.A.2005 Supp. 8-1567(d) provides that a first DUI conviction is a class B, nonperson misdemeanor; 8-1567(e) provides that a second DUI conviction is a class A, nonperson misdemeanor. K.S.A.2005 Supp. 8-1567(f) and (g) provide that any DUI conviction after the second shall be a nonperson felony. Conviction is defined to include "being convicted of a violation of . . . an ordinance of any city, or resolution of any county, which prohibits the acts that [8-1567] prohibits. . . ." K.S.A.2005 Supp. 8-1567(m)(2).

In Cadoret, the defendant was charged and convicted in municipal court of being a third-time DUI offender in violation of a Junction City ordinance. Cadoret appealed to district court and moved to dismiss the charge on the ground that his conviction as a third-time offender under the city ordinance was contrary to K.S.A.1996 Supp. 8-1567. The district court concluded that the City lacked...