State v. Key

• Decision Date: 08 November 2013
• Docket Number: No. 104,651.,104,651.
• Citation: 312 P.3d 355,298 Kan. 315
• Parties: STATE of Kansas, Appellee, v. Sean Aaron KEY, Appellant.
• Court: Kansas Supreme Court

298 Kan. 315

312 P.3d 355

STATE of Kansas, Appellee,

v.Sean Aaron KEY, Appellant.

No. 104,651.

Supreme Court of Kansas.

Nov. 8, 2013.

Syllabus by the Court

A defendant charged with felony driving under the influence (DUI) under K.S.A. 2007 Supp. 8–1567 may challenge before the district court the validity of a prior misdemeanor DUI used to classify the severity level of the current charge or to enhance the sentence following conviction on the current charge. However, if the defendant pleads guilty or no contest to the felony, the defendant will be limited on appeal to arguing the impropriety of the prior misdemeanor's effect as a sentencing enhancement. Under K.S.A. 22–3602(a), there is no appellate jurisdiction for a direct appeal of a felony conviction after a guilty or no contest plea.

Michael S. Holland, II, of Holland and Holland, of Russell, argued the cause and was on the brief for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and David J. Basgall, assistant county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

Defendant Sean Aaron Key was charged with driving under the influence of alcohol, a nonperson felony because of his two previous misdemeanor convictions for the same offense. During the felony proceeding, Key challenged the State's reliance on one of his misdemeanor convictions, claiming his attorney in that case had filed a guilty plea without consulting him. The district court judge was unwilling to entertain what he saw as an impermissible collateral attack on the prior conviction. Key entered a guilty or no contest plea to the felony charge.

At sentencing Key again objected to the State's reliance on the earlier misdemeanor conviction, but the district judge overruled the objection and sentenced Key to the penalty for a felony conviction.

Key appealed. The Court of Appeals issued an order in which it determined that, absent a motion to withdraw plea, it lacked jurisdiction to hear Key's appeal under K.S.A. 22–3602(a). Key filed a petition for review by this court, which we granted.

Factual and Procedural Background

In August 2007, Kansas Highway Patrol Trooper Doug Schulte stopped Key after the vehicle Key was driving swerved over the fog line multiple times. Once Schulte reached the vehicle, he smelled alcohol and noticed that Key's eyes were glassy. Key failed several field sobriety tests and a preliminary breath test. Key was arrested for driving under the influence.

Because Key had two prior convictions for driving under the influence of alcohol, the State charged Key with a nonperson felony instead of a misdemeanor. The version of K.S.A. 8–1567 governing this case provided:

“(a) No person shall operate or attempt to operate any vehicle within this state while:

(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8–1013, and amendments thereto, is .08 or more;

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

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

....

“(f)(1) On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500.” K.S.A. 2007 Supp. 8–1567.

The district court held a preliminary hearing at which Schulte testified, and the State offered evidence of Key's prior convictions. Defense counsel lodged no objection to the admission of the prior convictions but made clear that Key was not stipulating to the convictions' validity. At the conclusion of the hearing, the district court judge bound Key over.

Key then filed a motion to dismiss, arguing that his prior conviction in Case No. 07–CR–03, a misdemeanor DUI conviction from February 2007, was unlawfully obtained. Key alleged that his attorney in 07–CR–03 entered an unauthorized guilty plea on Key's behalf under K.S.A. 22–3210(c), a statute that allows a defendant to appear and plead through counsel. Key requested that the district judge dismiss the felony DUI charge or order the State to amend the complaint to allege only misdemeanor DUI.

In a memorandum decision, the district judge noted that Key had not sought to withdraw his plea in 07–CR–03 and had served and satisfied the sentence from that case. The district judge acknowledged that this court had permitted attacks on previous uncounseled misdemeanor convictions at later sentencings, see, e.g., State v. Delacruz, 258 Kan. 129, 137, 899 P.2d 1042 (1995), but the judge did not believe that this precedent controlled Key's situation. The district judge also determined that Key's motion to dismiss was untimely because it was filed 18 days after the expiration of the period for filing such motions under K.S.A. 22–3208(4).

Ultimately, Key entered a plea on the felony charge. Although it is unclear from the record whether he entered a guilty plea or a no contest plea, in this case the distinction between a guilty plea and a no contest plea has no legal significance.

Key's presentence investigation report indicated that he had been convicted of DUI in February 2007 and July 1995. At sentencing, Key again objected to consideration of the 2007 conviction and renewed his arguments from his unsuccessful motion to dismiss. He asked that the report be amended to show the new felony DUI as a misdemeanor. The district judge overruled Key's objection and sentenced him to 1 year in jail. Because the district judge saw a “legitimate issue” for appeal, he suspended Key's sentence pending the appeal's outcome.

In the Court of Appeals, then Chief Judge Greene issued an order to show cause on jurisdiction, which read: “The case law is clear that under K.S.A. 22–3602(a) a defendant may not file a direct appeal from a guilty plea unless the defendant first files a motion to withdraw the plea and the trial court denies the motion.” The order directed Key to show cause why his appeal should not be summarily dismissed for lack of jurisdiction.

In his response to Judge Greene's order, Key argued that K.S.A. 22–3602(f) permitted appeal of his sentence, including the underlying criminal history that drove the severity level, and that he had objected at every opportunity in the district court. Key also argued that “the determination of an individual's criminal history and therefore, the severity level for the conviction of K.S.A. 8–1567, is to be determined at sentencing.”

The Court of Appeals did not buy Key's argument. Rather, it viewed Key's appeal as a challenge to the felony nature of the charge, a challenge he could no longer pursue once he had entered his plea. “[Key], by pleading conceded he is at least a 3rd time offender and cannot now back-door a challenge to that plea by a direct challenge to his criminal history score.” Absent a motion to withdraw plea, the Court of Appeals dismissed the appeal for lack of jurisdiction.

On petition for review, Key argues that the Court of Appeals erred by failing to reach the merits of his argument. He asserts that his prior conviction was not an element of his new DUI charge, that he never waived his right to challenge it as a sentencing enhancement factor, and that the time for determining the severity level of his third DUI conviction was at sentencing. Key also argues that his attack on 07–CR–03 should succeed.

Discussion

The existence of subject matter jurisdiction raises questions of law reviewable de novo on appeal. See State v. Garza, 295 Kan. 326, 329, 286 P.3d 554 (2012). The same is true of the questions of law raised by statutory interpretation and construction and by interpretation of prior caselaw. See Garza, 295 Kan. at 329, 286 P.3d 554 (statutory interpretation, construction); State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012) (interpretation of caselaw).

This case arises at the convergence of K.S.A. 22–3602 and at least three lines of cases.

First, K.S.A. 22–3602(a) provides that a defendant may take an appeal as a matter of right to an appellate court having jurisdiction from “any judgment against the defendant in the district court and[,] upon appeal[,] any decision of the district court or intermediate order made in the progress of the case may be reviewed.” It further provides that a defendant may not take an appeal “from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60–1507 and amendments thereto.” In addition, the version of K.S.A. 22–3602(f) in effect at the time of Key's plea and sentencing provided that an appeal could be taken by the prosecution or a defendant “relating to sentences imposed pursuant to a presumptive sentencing guidelines system as provided in K.S.A. 21–4701 et seq. and amendments thereto” and that such an appealmust comply with “the provisions of K.S.A. 21–4721 and amendments thereto.”

Second, under this court's affirmance of the Court of Appeals' decision in State v. Seems, 277 Kan. 303, 306, 84 P.3d 606 (2004) (affirming State v. Seems, 31 Kan.App.2d 794, 74 P.3d 55 [2003] ), the State must put on evidence of at least two prior misdemeanor DUIs at a preliminary hearing on a felony DUI charge in order to demonstrate probable cause and bind over the defendant. In Seems, Monty Seems was charged with one count of felony DUI, and the original complaint listed Seems' two prior conviction dates. When the complaint was amended, the dates were deleted. On appeal, Seems challenged the adequacy of the State's showing of...