State v. Knoff, 72640

• Decision Date: 16 February 1996
• Docket Number: No. 72640,72640
• Citation: 911 P.2d 822,22 Kan.App.2d 85
• Parties: STATE of Kansas, Appellee, v. James K. KNOFF, Appellant.
• Court: Kansas Court of Appeals

Page 822

911 P.2d 822

22 Kan.App.2d 85

STATE of Kansas, Appellee, v. James K. KNOFF, Appellant.

No. 72640.

Court of Appeals of Kansas.

Feb. 16, 1996.

Syllabus by the Court

For purposes of determining whether a person is a habitual violator under K.S.A. 8-285, a diversion agreement is considered a conviction when it is first entered into.

Appeal from Sedgwick District Court; Tom Malone, Judge.

Casey J. Cotton, of Cotton & Cotton, Wichita, for appellant.

Charles R. Reimer, Assistant District Attorney, Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before ROYSE, P.J., and GERNON and PIERRON, JJ.

ROYSE, Presiding Judge:

James Knoff appeals the district court's determination that he is a habitual violator as defined by K.S.A. 8-285. He contends he did not have three convictions within the required period, because he entered into a diversion agreement more than 5 years before his last qualifying DUI conviction.

This appeal presents a question of first impression. At issue is the construction of K.S.A. 8-285(b), which contains a definition of "conviction" for purposes of the Habitual Violator Act.

A "habitual violator" is any person who, within the immediately preceding 5 years, has been convicted in this or any other state three or more times of certain listed offenses. K.S.A. 8-285(a). One of the offenses listed is driving a motor vehicle while under the influence of drugs or alcohol, contrary to K.S.A.1995 Supp. 8-1567. K.S.A. 8-285(a)(2).

K.S.A. 8-285(b) defines "conviction":

"For the purpose of subsection (a)(2) [driving under the influence], in addition to the definition of 'conviction' otherwise provided by law, conviction includes, but is not limited to, a diversion agreement entered into in lieu of further criminal proceedings, or a plea of nolo contendere, on a complaint, indictment, information, citation or notice to appear alleging a violation of K.S.A. 8-1567 and amendments thereto...."

The State brought this action to have Knoff declared a habitual violator. The parties stipulated to Knoff's driving record:

January 6, 1988 Knoff entered into diversion agreement on DUI charge.

May 11, 1989 After diversion was revoked, Knoff pled nolo contendere to DUI charge.

September 15, 1989 Knoff pled nolo contendere to second DUI charge.

February 7, 1994 Knoff pled nolo contendere to third DUI charge.

Based on the last three events in this record, the district court determined that Knoff was a habitual violator.

Knoff argues his first conviction for purposes of K.S.A. 8-285 occurred on January 6, 1988, the date he entered into a diversion agreement. That date is more than 5 years before his latest qualifying conviction on February 7, 1994. The State argued in the district court that only a successful diversion may be considered a conviction; if diversion is not completed successfully, then the later finding of guilt is the conviction. The State later adopted the position that where a person fails to complete a diversion program successfully, then either the diversion or a later plea of nolo contendere in the same case may be considered a conviction at the discretion of the State. Thus, the State argues Knoff was properly determined to be a habitual violator because he had convictions on May 11, 1989, September 15, 1989, and February 7, 1994.

Interpretation of K.S.A. 8-285(b) is a question of law. Appellate review of questions of law is unlimited. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).

Knoff relies on State v. Booze, 238 Kan. 551, 712 P.2d 1253 (1986). In Booze, the Supreme Court examined the definition of "conviction" in 8-1567, a "self-contained habitual criminal act." 238 Kan. at 552, 712 P.2d 1253. "Conviction" is defined in 8-1567 as follows:

"(k) For the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:

"(1) [the term] '[c]onviction' includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section."

Booze was charged with DUI on July 3, 1983, and entered into a diversion agreement on the DUI on December 23, 1983. He was arrested on a second DUI on November 30, 1984, approximately 1 month before the end of his diversion. The State subsequently filed a motion to terminate the diversion and reinstate prosecution on Booze's first DUI. Booze pled guilty to both DUI charges on February 21, 1985. The district court sentenced Booze as a second offender on the second DUI and Booze appealed. Booze argued that this sequence--offense, offense, conviction, conviction--violated the sequential requirement for enhancement of sentences as set forth in State v. Osoba, 234 Kan. 443, 444, 672 P.2d 1098 (1983): " ' "[F]or enhancement of sentence of a defendant as a second offender [under 8-1567], the previous conviction must have occurred prior to commission of the principal offense." ' " Booze, 238 Kan. at 553, 712 P.2d 1253.

The State, taking a position in Booze opposite to the one it argues here, argued there was a conviction on the first offense at the moment the defendant entered into the diversion agreement. 238 Kan. at 553, 712 P.2d 1253.

The Supreme Court observed that K.S.A.1983 Supp. 8-1567(i) [now 8-1567(k)(1) ] "clearly states that 'entering' into a diversion agreement is a conviction for purposes of enhancing sentence. If the drafters had intended that diversion would operate as a conviction only upon its completion, they could easily have said so." Booze, 238 Kan. at 555, 712 P.2d 1253.

The Supreme Court in Booze also examined legislative intent:

"The only real difference between diversion and being sentenced as a first offender (K.S.A.1983 Supp. 8-1567[c] ) is the incarceration. Under 22-2909(c), the defendant must pay the minimum statutory fine for a first offense or complete a set number of hours of community service, and he must enroll in and complete an alcohol and drug safety program. Moreover, the purpose behind the first offender sentence and the requirements of diversion are the same--both seek to rehabilitate.

"This court, in [State v. ] Clevenger [235 Kan. 864, 683 P.2d 1272 (1984) ], discussed the public policy behind considering a diversion a 'conviction' for purposes of sentence enhancement and stated:

'The intent of allowing diversion for the first DUI offense was the legislature's recognition that although it had done away with plea bargaining, it deemed it appropriate to offer a less harsh option for a first offense. If, however, a defendant commits a second offense, there are no breaks. The purpose of sentence enhancement is to punish those who violate the law repeatedly. See State v. Lohrbach, 217 Kan. 588, 591, 538 P.2d 678 (1975). A repeated violator of the DUI law should be subject to sentence enhancement on a second offense regardless of whether the individual went to jail or sought diversion for the first offense.' 235 Kan. at 868 .

"In view of the nature of diversion in DUI cases, and the public policy behind sentence enhancement in DUI cases, it is apparent that the legislature must have intended that once a defendant has entered into a diversion agreement, he will be considered as having been 'convicted' for purposes of enhancing his sentence if he commits another DUI offense. There is no reason to presume the legislature intended that only a person who has successfully completed diversion should be treated as a repeat offender if he is again charged with DUI." 238 Kan. at 555-56, 712 P.2d 1253].

Thus, relying on the plain meaning of the statute and legislative intent, the Supreme Court concluded that for purposes of sentencing under 8-1567, "a diversion agreement is considered a conviction when it is first entered into. K.S.A.1993 Supp. 8-1567 does not require the diversion agreement to be completed and the charges dismissed with prejudice before it is considered a conviction for purposes of sentencing." 238 Kan. 551, Syl. p 2, 712 P.2d 1253.

The State in this case does not attempt to distinguish Booze directly, although it does argue that 8-285 is civil in nature and subject to different rules of statutory construction than those applicable to 8-1567. That argument is not persuasive. First, Booze noted that the rule of strict construction applicable to penal statutes "simply means that...