State v. Lamone

• Decision Date: 09 June 2017
• Docket Number: No. 115,451,115,451
• Citation: 399 P.3d 235,54 Kan.App.2d 180
• Parties: STATE of Kansas, Appellee, v. Stephanie R. LAMONE, Appellant.
• Court: Kansas Court of Appeals

54 Kan.App.2d 180

399 P.3d 235

STATE of Kansas, Appellee,

v.Stephanie R. LAMONE, Appellant.

No. 115,451

Court of Appeals of Kansas.

Opinion filed June 9, 2017

C. Ryan Gering, of Hulnick, Stang, Gering & Leavitt, P.A., of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Green, P.J., Standridge and Gardner, JJ.

Green, J.:

Stephanie R. Lamone was convicted of felony driving under the influence (DUI) under K.S.A. 2013 Supp. 8-1567(b)(1)(D) when the sentencing court determined that she had two prior Wichita Municipal Court convictions under a Wichita City ordinance. On appeal, Lamone raises two issues for our consideration. First, she contends that her previous two convictions under the Wichita City Ordinance cannot be used to enhance her sentence for DUI under K.S.A. 8-1567 because, at the time of her previous convictions, the Wichita City Ordinance was broader than the state statute in defining the term "vehicle." In addition, she contends that any finding of fact made by the trial court regarding what type of vehicle she was driving when she was charged with DUI under the Wichita City Ordinance violates controlling caselaw. Because the trial court erred when it looked to the charging documents of Lamone's two previous municipal court convictions to see what type of vehicle Lamone was operating when she was charged with DUI under the Wichita City Ordinance, we vacate her sentence and remand to the trial court with directions to resentence Lamone without using or considering her two previous Wichita Municipal Court convictions for the purpose of resentencing her under K.S.A. 2016 Supp. 8-1567.

On February 12, 2014, Stephanie R. Lamone was involved in a one-car accident in Wichita, Kansas. Lamone told the responding law enforcement officers that she was the lone occupant and the driver of the Toyota car that had left the road and struck a tree. After submitting to field sobriety tests, Lamone consented to a breath test. The breath test showed that Lamone had a breath alcohol concentration (BAC) of .214.

Lamone was later charged with unlawfully operating or attempting to operate a motor vehicle while under the influence of alcohol in violation of K.S.A. 2013 Supp. 8-1567(a)(2) or, in the alternative, with violating K.S.A. 2013 Supp. 8-1567(a)(3). The complaint alleged that Lamone had two previous convictions in Wichita, Kansas, Municipal Court, for driving under the influence (DUI) in violation of Wichita City Ordinance 11.38.150. Wichita Municipal Court records showed that Lamone was granted diversion for DUI on September 2, 2010, in case no. 09DU615, and found guilty of DUI on December 15, 2011, in case no. 11DU1254. Lamone was charged with a felony under K.S.A. 2013 Supp. 8-1567(b)(1)(D) based on her two previous DUIs.

At the preliminary hearing, Lamone did not contest the probable cause findings as to the elements of the February 12, 2014, DUI. Instead, Lamone challenged the admissibility of her prior Wichita Municipal Court convictions, arguing that the convictions could not properly be used as prior convictions under state law ( K.S.A. 2013 Supp. 8-1567 [i] ). As a result, Lamone objected to the classification of the alternative counts against her as felony charges. The trial court admitted the prior convictions over Lamone's objection and ruled that probable cause existed to believe that Lamone had committed a felony DUI. Lamone entered a plea of not guilty.

Lamone moved to dismiss the complaint, arguing that the two prior convictions could not be used or considered for state sentencing purposes under K.S.A. 2013 Supp. 8-1567(i). The trial court held a hearing on the motion to dismiss, and it admitted the two previous municipal court convictions. The trial court considered the charging documents of Lamone's two prior municipal court convictions and determined that Lamone had been charged with driving a Toyota Camry in each of her two previous DUIs. In its memorandum decision, the trial court denied Lamone's motion to dismiss and ruled that her two prior municipal court convictions for DUI could properly be considered for the purpose of sentencing.

The case proceeded to a bench trial on stipulated facts. Lamone preserved the issue of whether her two previous municipal court convictions should be counted as prior convictions under K.S.A. 2013 Supp. 8-1567(i). Lamone was found guilty of the felony DUI charged.

When a presentencing investigation was conducted, the report stated that Lamone had two prior convictions for DUI. Lamone objected to her criminal history, again arguing that her two prior municipal court convictions for DUI could not be considered as prior convictions for sentencing purposes under K.S.A. 2013 Supp. 8-1567(i).

Lamone was sentenced under K.S.A. 2013 Supp. 8-1567(b)(1)(D) for her third conviction for DUI. She was sentenced to 12 months' imprisonment and a fine of $1,750 for Count 1, violating K.S.A. 2013 Supp. 8-1567(a)(2). The sentencing court ordered Lamone to serve the mandatory 90–day jail sanction, with 48 hours being served in jail and 2,112 hours being served on house arrest.

Could Lamone's Two Prior Convictions From the Wichita Municipal Court Properly be Used as Previous Convictions Under K.S.A. 8-1567(i) to Sentence Her for Felony DUI Under K.S.A. 8-1567(b)(1)(D) ?

The issue before this court is whether Lamone's two prior Wichita Municipal Court convictions for DUI could be counted as prior convictions for the purpose of sentencing Lamone under K.S.A. 8-1567.

Lamone specifically argues (1) that her two previous convictions under Wichita City Ordinance 11.38.150 could not be used to enhance a sentence for DUI under K.S.A. 8-1567 because the Wichita City Ordinance was broader than the state statute in defining the term "vehicle" and (2) that any finding of fact made by the trial court regarding what type of vehicle she was driving when she was charged with DUI under the Wichita City Ordinance was violative of controlling caselaw: Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; Alleyne v. United States , 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ; Descamps v. United States , 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; and Mathis v. United States , 579 U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Based on these decisions, Lamone argues that the modified categorical approach would have precluded the trial court from making this finding.

Lamone's arguments involve questions of statutory interpretation and application. The interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Collins , 303 Kan. 472, 473–74, 362 P.3d 1098 (2015).

Did the Wichita City Ordinance and the State Statute Prohibit the Same Acts?

To begin, we note that K.S.A. 2016 Supp. 8-1567(i) clearly allows prior DUI convictions to be considered for sentencing purposes. K.S.A. 2016 Supp. 8-1567(i) states in relevant part:

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

"(1) Convictions for a violation of this section, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, shall be taken into account, but only convictions or diversions occurring on or after July 1, 2001."

More plainly stated, K.S.A. 2016 Supp. 8-1567(i)"provides that a defendant's municipal court DUI conviction occurring on or after July 1, 2001, may be counted as a prior DUI conviction if the ordinance prohibits the acts that K.S.A. 8-1567 prohibits." See State v. Gensler , No. 112523, 2016 WL 2610262, at *2 (Kan. App. 2016) (unpublished opinion), petition for rev. filed June 6, 2016.

Thus, our question initially becomes whether Wichita City Ordinance 11.38.150 prohibits the acts that K.S.A. 8-1567 prohibits. See K.S.A. 2016 Supp. 8-1567(i) ; see also State v. Stanley , 53 Kan.App.2d 698, 700, 367 P.3d 1284 ("Thus, our question becomes are the same acts that are prohibited by the Missouri law prohibited by the Kansas law?"), rev. denied 304 Kan. 1022 (2016); State v. Miller , No. 108,302, 2013 WL 1943153, at *8 (Kan. App. 2013) (unpublished opinion) ("For a prior DUI conviction to count as a prior offense, the law underlying the conviction must prohibit the same acts that our present DUI statute prohibits.").

K.S.A. 2016 Supp. 8-1567(a) prohibits the following acts relating to the charge of driving under the influence of alcohol or drugs or both:

"Driving under the influence is operating or attempting 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 three 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;

(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."

Wichita City Ordinance 11.38.150 prohibits the following acts relating to driving under the influence of alcohol or drugs or both:

" ‘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

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