State v. Glasscock, 109,532.
| Decision Date | 15 November 2013 |
| Docket Number | No. 109,532.,109,532. |
| Citation | 313 P.3d 105 |
| Parties | STATE of Kansas, Appellee, v. Peggy S. GLASSCOCK, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Douglas District Court; Paula B. Martin, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Franklin Katschke, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and STANDRIDGE, JJ.
Peggy Glasscock was convicted of her first driving under the influence (DUI) charge in 1992. She had additional DUI convictions in 1996, 1997, and 2001. In March 2010, she was arrested for her fifth DUI. At the time of her most recent offense, K.S.A 2009 Supp. 8–1567(o)(3) provided that for sentencing purposes the court could consider “any convictions occurring during a person's lifetime” to determine how many prior DUI convictions Glasscock had.
On July 1, 2011, after Glasscock's current offense was committed, K.S.A 8–1567 was amended to provide that in counting prior DUI convictions the sentencing court could consider “only convictions occurring on or after July 1, 2001.” L.2011, ch. 105, sec. 19.
In August 2011, Glasscock pled no contest to her most recent DUI, and the court found her guilty.
In November 2011, Glasscock moved to prohibit use of her pre–2001 DUI convictions for the purpose of determining the severity of her crime and the appropriate sentence. The district court denied Glasscock's motion and sentenced her for a fourth or subsequent DUI offense. Glasscock appeals, arguing that the court erred in considering her pre–2001 DUI convictions at sentencing.
Glasscock argues that the 2011 amended look-back provision found in K.S.A.2011 Supp. 8–1567(j)(3) is procedural in nature, applied retroactively to her case, and allowed the court to consider only her post-July 1, 2001, DUI convictions.
Glasscock raises an issue of statutory interpretation over which we have unlimited review. See State v. Messer, 49 Kan.App.2d ––––, 307 P.3d 255, 260 (2013), petition for rev. filed September 20, 2013. A statute operates prospectively unless its text clearly indicates the legislature's intent that the statute should operate retroactively. State v. Williams, 291 Kan. 554, 557, 244 P.3d 667 (2010). This rule does not apply if the statutory change does not prejudicially affect the substantive rights of parties and is merely procedural or remedial in nature. 291 Kan. at 557.
For the purposes of Kansas criminal law, “ ‘substantive law is that which declares what acts are crimes and prescribes the punishment therefor.’ “ Tonge v. Werholtz, 279 Kan. 481, 487, 109 P.3d 1140 (2005). Conversely, procedural law “ ‘provides or regulates the steps by which one who violates a criminal statute is punished.’ “ 279 Kan. at 487.
It is fundamental that a defendant should be sentenced based on the law in effect at the time the crime was committed. Williams, 291 Kan. at 559.
Glasscock's argument for retroactive application of K.S.A.2011 Supp. 8–1567(j)(3) was rejected by our court in State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012), rev. granted October 1, 2013. The court in Reese determined that the 2011 amendment to this statute altered substantive rights and was not intended by the legislature to be applied retroactively. 48 Kan.App.2d at 90–91. We find the reasoning in Reese to be compelling.
Glasscock asserts that the cases this court relied on in reaching the decision in Reese are distinguishable from her own.
Glasscock argues that in State v. Mayberry, 248 Kan. 369, 387, 807 P.2d 86 (1991), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), the statute in effect at the time of Mayberry's crime allowed for the doubling of a sentence upon the second conviction for any felony offense, including aggravated burglary. After Mayberry's crime the statute was amended so as to list only certain felonies to which a double sentence applied. Aggravated burglary was not one of them. The court found that Mayberry's sentence was properly doubled based on the statute in effect at the time of commission of the crime.
Glasscock attempts to distinguish Mayberry by arguing that the statute in Mayberry speaks directly to the length of a sentence, whereas K.S.A.2011 Supp. 8–1567(j)(3) merely provides a procedure for determining which sentencing provision applies.
Glasscock also directs us to State v. Edwards, 28 Kan.App.2d 379, 15 P.3d 855 (2000). In that case, a statute related to driving while suspended was amended after Edwards committed the crime. The amendment reduced the penalty for those with two or more convictions from a felony to a misdemeanor. The Edwards court concluded that the statute was a statute of substantive criminal law and did not apply retroactively. 28 Kan.App.2d at 380–81.
Glasscock argues that the statutory change in Edwards defined the crime itself and is therefore distinguished from the statute at issue here, which did not define the crime but merely provided the process for determining whether a conviction was a first, second, or subsequent offense.
We are not convinced by Glasscock's attempts to distinguish her case from Mayberry and Edwards. Determining whether a DUI conviction is a first, second, third, fourth, or subsequent offense is not isolated from the substantive rights of the parties. K.S.A.2011 Supp. 8–1567(j)(3) is inextricably linked to the punishment imposed for a DUI conviction and is the guiding force for courts to determine which of the several statutory punishments must be imposed. As such, the amendment does speak directly to the length of a sentence as in Mayberry, and it ultimately determines whether a defendant will be convicted of a misdemeanor or a felony, as in Edwards. In this way, K.S.A.2011 Supp. 8–1567(j)(3) unequivocally affects the substantive rights of defendants.
Since the decision in Reese, we have found no case that has parted with the Reese analysis. See Messer, 49 Kan.App.2d ––––, 307 P.3d at 261;State v. Keeler, No 106,656, 2013 WL 4729253, at *4 (Kan.App.2013) (unpublished opinion), petition for rev. filed September 27, 2013; State v. Hurt, No. 108,290, 2013 WL 4404195, at *2–3 (Kan.App.2013) (unpublished opinion); State v. Ryherd, No. 108,044, 2013 WL 4046411, at *2–3 (Kan.App.2013) (unpublished opinion), petition for rev. filed September 9, 2013.
Glasscock also relies on the holding in Dorsey v. United States, 567 U.S. ––––, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), for support. In Dorsey, the Court allowed a change (the Fair Sentencing Act of 2010) that affected the sentencing statute for crack cocaine convictions to be applied retroactively. The basic sentencing statute, the Sentencing Reform Act, contained an express statement that amended sentences “ ‘in effect on the date the defendant is sentenced’ “ control regardless of the date of the crime. 132 S.Ct. at 2331 (quoting 18 U.S.C. § 3553[a][4][A][ii] ). Additionally, the Fair Sentencing Act contained a congressional finding that the previous sentences for crimes involving crack cocaine were “unfairly long” when compared to sentences involving powdered cocaine. 132 S.Ct. at 2333.
This court has already held that Dorsey is distinguishable from Kansas cases regarding retroactive application of the DUI look-back provision at issue here. See Messer, 49 Kan.App.2d at ––––, 307 P.3d at 261. As found in Messer, the DUI amendments do not contain language or legislative findings similar to those in the federal sentencing law. The language of the K.S.A.2011 Supp. 8–1567(j)(3) amendment does not contain a provision allowing for retroactive application.
Finally, Glasscock directs us to State v. Sedillos, 279 Kan. 777, 112 P.3d 854 (2005), and infers that the legislature amended K.S.A.2010 Supp. 8–1567(j)(3) in response to the court's decision in that case. In Sedillos, the defendant had a prior DUI conviction in 1997...
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