State v. Fisher, 115,277
Decision Date | 10 August 2018 |
Docket Number | No. 115,277,115,277 |
Citation | 423 P.3d 528 |
Parties | STATE of Kansas, Appellee, v. Nicholas W. FISHER, Appellant. |
Court | Kansas Supreme Court |
C. Ryan Gering, of Hulnick, Stang, Gering & Leavitt, P.A., of Wichita, was on the briefs for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, Wichita, and Derek Schmidt, attorney general, Topeka, were on the briefs for appellee.
This companion case to State v. Gensler , 308 Kan. ––––, 423 P.3d 488, 2018 WL 3798387 ( ), and State v. Mears , 308 Kan. ––––, 423 P.3d 467, 2018 WL 3797522 ( ), involves defendant Nicholas W. Fisher's sentence for driving under the influence (DUI), which was based on two prior convictions for DUI.
One of Fisher's prior DUI convictions was a Wichita Municipal Court conviction. Fisher argues that the Wichita DUI cannot be used to enhance his current state DUI sentence, because the Wichita ordinance prohibits a broader range of conduct than the Kansas statute. As detailed in our decision in Gensler , we hold that a conviction based on the ordinance cannot be used to enhance a sentence for a DUI conviction under K.S.A. 2017 Supp. 8-1567. We vacate Fisher's sentence and remand this case to the district court for resentencing.
On June 5, 2014, Fisher was charged with two alternative counts of driving under the influence on January 20, 2013. Based on two previous DUI convictions, the State charged Fisher with felony DUI under K.S.A. 2017 Supp. 8-1567. One of the predicate DUI convictions arose under Wichita municipal ordinance for a DUI on March 14, 2014.
The ordinance governing at the time of Fisher's prior DUI read in pertinent part:
Fisher's counsel filed a motion to dismiss the charges, arguing that the Wichita DUI did not count as a prior DUI because the Wichita ordinance is broader than the state statute.
At the hearing on the motion, the judge began by looking at the "city disposition sheets" from Fisher's prior Wichita conviction. Although the sheets established Fisher's prior conviction, they did not describe his specific means of conveyance. The State acknowledged the deficiency but was prepared to offer the citation, "which is also the charging document[ ] in the city." According to the State, the citation would establish the means of conveyance.
After argument from both sides about the appropriateness of considering the information in the charging document, the judge concluded that the Wichita ordinance qualified as "divisible." Because it was divisible, the "modified categorical" approach would apply, permitting him to view the charging document. The judge then reviewed the document and noted for the record, The judge thus found that a motor vehicle was operated, which qualified the Wichita DUI as a prior conviction under K.S.A. 2017 Supp. 8-1567.
Fisher's case proceeded to a bench trial on stipulated facts, and he was found guilty of DUI.
At sentencing, Fisher renewed his objection to using his Wichita DUI conviction as a prior DUI. The objection was overruled.
On appeal to the Court of Appeals, the panel held that the sentencing...
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State v. Gensler
...companion case to State v. Mears , 308 Kan. ––––, 423 P.3d 467, 2018 WL 3797522 (No. 115,278, this day decided 2018), and State v. Fisher , 308 Kan. ––––, 423 P.3d 528 (No. 115,277, this day decided), involves defendant Stacy A. Gensler's sentence for driving under the influence (DUI), whic......
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State v. Schrader, 115,196
...State v. Mears , 308 Kan. ––––, 423 P.3d 467, 2018 WL 3797522 (No. 115,278, this day decided 2018), and State v. Fisher , 308 Kan. ––––, 423 P.3d 528 (No. 115,277, this day decided 2018). Although he relies on language from a different statute, it is so similar to that examined in the three......
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State v. Lamone, 115,451
...on the ordinance cannot be used to enhance a sentence for a DUI conviction under K.S.A. 2017 Supp. 8-1567. See also State v. Fisher , 308 Kan. 715, 423 P.3d 528 (2018) ; State v. Mears , 308 Kan. 719, 423 P.3d 467 (2018). We vacate Lamone's sentence and remand this case to the district cour......
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State v. Mears
...case to State v. Gensler , 308 Kan. ––––, 423 P.3d 488, 2018 WL 3798387 (No. 112,523, this day decided), and State v. Fisher , 308 Kan. ––––, 423 P.3d 528, 2018 WL 3803077 (No. 115,277, this day decided), involves defendant David S. Mears' sentence for driving under the influence (DUI), whi......