State v. Gensler

• Decision Date: 10 August 2018
• Docket Number: No. 112,523,112,523
• Parties: STATE of Kansas, Appellee, v. Stacy A. GENSLER, Appellant.
• Court: Kansas Supreme Court

423 P.3d 488

STATE of Kansas, Appellee,

v.Stacy A. GENSLER, Appellant.

No. 112,523

Supreme Court of Kansas.

Opinion filed August 10, 2018.

C. Ryan Gering, of Hulnick, Stang, Gering & Leavitt, P.A., of Wichita, argued the cause and was on the brief for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

This 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), which was based on two prior convictions for DUI.

Gensler was twice convicted of DUI under a Wichita municipal ordinance. Gensler argues that the Wichita DUIs cannot be used to enhance his current DUI sentence, because the Wichita ordinance prohibits a broader range of conduct than the Kansas statute. The definition of "vehicle" in the Wichita Ordinance included bicycles and other human-powered devices. In contrast, the state statute explicitly excludes such devices. Compare Wichita Municipal Ordinance (W.M.O.) 11.04.400 with K.S.A. 8-1485 (vehicle definition, excludes "devices moved by human power"); see also City of Wichita v. Hackett , 275 Kan. 848, 69 P.3d 621 (2003).

For the reasons set out below, we conclude that the sentencing provisions of K.S.A. 2017 Supp. 8-1567(i)(1) that define "conviction" do not cover Gensler's previous DUI convictions under the Wichita ordinance, because the ordinance did not "prohibit[ ] the acts that [ K.S.A. 8-1567 ] prohibits." We vacate Gensler's sentence and remand this case to the district court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2013, the State charged Gensler with felony DUI after his March 29, 2013, arrest for driving with a blood or breath alcohol concentration of more than .08 or, alternatively, while incapable of safely operating the car. To establish that this would give rise to Gensler's third DUI conviction and therefore a felony, the State alleged that Gensler had been twice convicted of DUI in Wichita Municipal Court. The Wichita DUIs had occurred on November 16, 2006, and June 22, 2010.

The Wichita ordinance governing at the time of Gensler's prior DUIs read in pertinent part:

"(a) No person shall operate or attempt to operate any vehicle within the city while:

(1) The alcohol concentration in the person's blood or breath, as measured within three hours of the time of operating or attempting to operate a vehicle is .08 or more;

(2) Under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;

(3) The alcohol concentration in the person's blood or breath as shown by any competent evidence is .08 or more. For the purposes of this section, ‘any competent evidence’ includes (1) Alcohol concentration tests obtained from samples taken three hours or more after the operation or attempted operation of a vehicle, and (2) readings obtained from a partial alcohol concentration test on a breath testing machine;

(4) Under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or

(5) Under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle." W.M.O. 11.38.150.

At Gensler's preliminary hearing, Gensler's attorney argued the Wichita DUIs could not be used to enhance Gensler's state case to a felony because the municipal ordinance prohibited a broader range of conduct than the state DUI statute. In addition, Gensler objected to the State introducing the traffic citations and disposition sheets from his municipal convictions into evidence. The district court judge rejected Gensler's arguments.

After the preliminary hearing, Gensler filed a motion to dismiss, reasserting his argument that the municipal DUIs could not elevate the current DUI prosecution to a felony. The district judge again rejected Gensler's argument and denied the motion.

Gensler's case proceeded to a bench trial on stipulated facts. The State and Gensler stipulated:

"On March 29th, 2013, in Sedgwick County Kansas, Defendant drove a vehicle. The alcohol concentration in defendant's breath at a time within three hours of Defendant driving a vehicle was 0.182. Wichita Police Service Officer Fransisco Mendez #S0273 administered the test on a machine Mendez believed to be working properly and certified."

Based on the stipulated facts, the judge found Gensler guilty of felony DUI.

Gensler objected to the inclusion of the two Wichita DUI convictions in the criminal history score in his presentence investigation report. He reiterated his argument that those convictions should not be counted because the Wichita ordinance prohibited a broader range of conduct than the state statute.

Before imposing sentence, the district judge heard arguments on inclusion of the Wichita DUIs. The State offered into evidence the complaint, i.e., the traffic ticket, and the journal entry of judgment for each municipal conviction. Relying on those documents, the district judge concluded that each of the Wichita DUI convictions satisfied the statutory definition of a prior conviction and sentenced Gensler for felony DUI under the state statute.

On appeal to the Court of Appeals, Gensler argued that "any attempt by the district court to look at the underlying facts of the municipal convictions would constitute judicial factfinding in violation of Descamps v. United States, 570 U.S [254], 133 S.Ct. 2276, 186 L.Ed. 2d 438 (2013) [,] and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000)." State v. Gensler , No. 112,523, 2016 WL 2610262, at *1 (Kan. App. 2016) (unpublished opinion).

The panel concluded that the Wichita municipal DUI ordinance was a "divisible ordinance because a conviction under the ordinance applies either to an automobile or a bicycle, one of which matches a conviction under K.S.A. 8-1567." 2016 WL 2610262, at *5 ; see State v. Dickey , 301 Kan. 1018, 1037, 350 P.3d 1054 (2015) ( Dickey I ) (explaining Descamps analysis). Based on that conclusion, the panel applied a "modified categorical" approach to determine whether the district judge appropriately considered documents from the previous convictions.

"Under this approach, Gensler's sentencing judge was permitted to examine the municipal court citations that clearly showed his convictions were based on the operation of motor vehicles rather than a bicycle. This procedure did not constitute impermissible judicial factfinding in violation of Descamps and Apprendi. The district court correctly determined that Gensler's prior DUI convictions under the municipal ordinance were based on the same acts prohibited by K.S.A. 8-1567. Therefore, the district court did not err when it counted Gensler's two ordinance convictions as prior convictions for sentencing purposes under K.S.A. 8-1567." 2016 WL 2610262, at *5.

On petition for review, Gensler asks us to decide whether his "prior DUI convictions for violation of Wichita Municipal Ordinance 11.38.150 [are] ‘prior convictions’ as defined by K.S.A. 8-1567(i), and therefore scoreable to elevate his current DUI conviction to Felony classification." We granted review.

DISCUSSION

Resolution of the issue in this appeal requires interpretation of a statute. Issues of statutory interpretation raise questions of law over which appellate courts exercise unlimited review. State v. Castleberry , 301 Kan. 170, 175, 339 P.3d 795 (2014).

"Legislative intent governs that review, and ‘[r]eliance on the plain and unambiguous language of a statute is "the best and only safe rule for determining the intent of the creators of a written law." ’ State v. Spencer Gifts, 304 Kan. 755, 761, 374 P.3d 680 (2016) (quoting Merryfield v. Sullivan , 301 Kan. 397, 399, 343 P.3d 515 [2015] ). Therefore, we read the statutory language as it appears, without adding or deleting words, and only ‘[i]f the language is less than clear or is ambiguous, [do] we move to statutory construction.’ Ambrosier v. Brownback , 304 Kan. 907, 911, 375 P.3d 1007 (2016). If a statute is not ambiguous, we do not examine ‘legislative history, background considerations that speak to legislative purpose, or canons of statutory construction.’ In re Marriage of Brown , 295 Kan. [966] at 969, 291 P.3d 55 [ (2012) ]." State v. Gray , 306 Kan. 1287, 1294, 403 P.3d 1220 (2017).

Both parties and the Court of Appeals panel begin their analysis with the interpretation of the underlying statute— K.S.A. 2017 Supp. 8-1567. But their focus ultimately turns to how the "categorical" and "modified categorical" approaches apply and whether it is constitutionally permissible to look at documents from a prior conviction to determine if it qualifies as a prior DUI.

Several Court of Appeals panels have addressed whether a DUI under the Wichita ordinance counts as a prior DUI conviction under the state statute. With the exception of the panel in this case, the panels have consistently held that a prior Wichita DUI may not be used for DUI sentence enhancement. See, e.g., State v. Lamone , 54 Kan. App. 2d 180, 193, 399 P.3d 235 (2017) (Wichita ordinance cannot support state sentence enhancement because of impermissible judicial fact-finding), petition for rev. granted 307 Kan. 991, 417 P.3d 1033 (2018); see also State v. Williams , 55 Kan. App. 2d 389, 393, 416 P.3d 1024 (2018) (collecting cases).

Recently, we have addressed similar sentencing classification questions. See, e.g., Dickey I , 301 Kan. 1018, 350 P.3d 1054 (classification of prior burglary conviction as person, nonperson crime). We have resolved the questions in these cases purely as a matter of statutory interpretation. See State v. Dickey , 305 Kan....