State v. Moody, No. 92,248.

• Decision Date: 27 October 2006
• Docket Number: No. 92,248.
• Citation: 144 P.3d 612
• Parties: STATE of Kansas, Appellee, v. Gwendlyn K. MOODY, Appellant.
• Court: Kansas Supreme Court

144 P.3d 612

STATE of Kansas, Appellee, v. Gwendlyn K. MOODY, Appellant.

No. 92,248.

Supreme Court of Kansas.

October 27, 2006.

COPYRIGHT MATERIAL OMITTED

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Kristi L. Barton, assistant district attorney, Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were on the brief for appellee.

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

Gwendlyn Moody was charged in the complaint with driving under the influence (DUI) after having been previously convicted of DUI two or more times. Moody pled guilty. Just prior to the imposition of sentence, a third prior DUI conviction was added to Moody's criminal history. Moody acknowledged that she had three prior DUI convictions. Accordingly, the district judge then sentenced Moody as a fourth-time DUI offender. Moody appealed her sentence as a fourth-time DUI offender to the Kansas Court of Appeals. Rejecting a prior Court of Appeals panel's jurisdictional analysis of the sentencing question, this Court of Appeals panel applied a due process analysis, found that due process had been afforded, and affirmed. State v. Moody, 34 Kan.App.2d 526, 120 P.3d 1156 (2005). In addition to the jurisdiction issue, Moody also challenges the validity of the trial court's order requiring her to reimburse the Board of Indigents' Defense Services (BIDS) for attorney and administrative fees without first considering her financial resources, the nature of the burden imposed, and the Court of Appeals affirmance. This court granted Moody's petition for review.

The issues before this court are (1) did the trial court have jurisdiction to sentence Moody as a fourth-time DUI offender and, if so, was Moody afforded due process, and (2) did the trial court err in ordering Moody to reimburse BIDS fees without first considering her ability to pay as required by K.S.A. 2005 Supp. 22-4513?

The facts are not in dispute and are well stated by the Court of Appeals:

"On July 29, 2002, the State filed a two-count complaint against Moody. Count 1 charged Moody with felony DUI, while count 2 charged her with failure to provide proof of liability insurance. In support of the DUI charge, count 1 alleged:

`Moody did operate or attempt to operate a motor vehicle, to-wit: 1988 Pontiac at Kellogg and Main, Wichita, Sedgwick County, Kansas, while under the influence of alcohol to the extent that he [sic] was incapable of safely operating said vehicle after having been previously convicted of DUI two or more times, to-wit: on the 4th day of April, 1989, in Wichita Municipal Court in Case No. TB92126, and on the 3rd day of February, 1998, in Wichita Municipal Court in Case No. 97TM13602.'

"Moody subsequently entered into a plea agreement whereby the State agreed to recommend as to count 1 that the defendant receive a controlling sentence of 1 year in the county jail and a fine of $1,500, to be served by 48 hours in the county jail, less credit for time served, immediately followed by 88 days on house arrest as a condition of probation. As to count 2, the State agreed to recommend a fine of $300 and that the two counts be run concurrently.

"During the plea hearing, the district court observed that the complaint alleged two prior DUI convictions; Moody concurred with the accuracy of that information. The district court further noted [to the defendant] that the court was not bound by the plea agreement and could impose the maximum fine and penalty on each count. The court then specified the maximum fine and penalty as follows:

`[C]ount I, is one year in the County jail and a fine of $2,500, and count II, is up to 6 months in the county jail and a fine of $1,000 and [the court] could in fact order that those two sentences be served consecutively, or one after the other, and also that both fines be paid in the maximum amounts so the total penalty—the maximum penalty that you face is 18 months in the county jail and a fine of $3,500.'

"Moody pled guilty, and at sentencing the district court observed that Moody's criminal history included three, rather than two, prior DUI convictions. Moody concurred [acknowledged] that she did in fact have three prior DUI convictions. Consequently, the court sentenced Moody as a fourth-time offender to a term of 180 days in the Sedgwick County jail (3 days incarceration, followed by 177 days in a work release program), and assessed a fine of $2,500." 34 Kan.App.2d at 527-28, 120 P.3d 1156.

On appeal, Moody argues that because the complaint had alleged she had been previously convicted of DUI two or more times, the trial court did not have jurisdiction to sentence her as a fourth-time DUI offender. Moody then asserts that if the court had jurisdiction, the process afforded her did not satisfy her due process requirements. Moody argues to this court that her sentence as a fourth-time offender is illegal because the complaint had alleged two or more prior convictions for DUI; thus, the sentencing judge did not have jurisdiction to sentence her as a fourth-time DUI offender. The determination whether a criminal sentence is illegal is a question of law subject to unlimited review. State v. Huff, 277 Kan. 195, 199, 83 P.3d 206 (2004).

Prior Court of Appeals Decisions

Before the Court of Appeals, Moody cited State v. Dyke, 33 Kan.App.2d 167, 100 P.3d 972 (2003), and argued that the sentencing judge lacked jurisdiction to sentence her as a fourth-time DUI offender. Noting that Dyke represented one of two lines of cases decided by separate panels of the Court of Appeals, Moody asserted that the panel that considered the present case had disagreed with the Dyke panel's jurisdictional analysis. The Moody panel examined the circumstances as a matter of right to due process rather than a lack of jurisdiction to sentence the defendant and affirmed Moody's sentence as a fourth-time offender. The Court of Appeals panel analyzed the present case by first noting whether jurisdiction exists was a question of law over which that court had unlimited review. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002). The Moody panel observed that our court had determined that a complaint which omits an essential element of a crime is fatally defective, and under such circumstances, the trial court lacks jurisdiction to convict the defendant. State v. Hooker, 271 Kan. 52, 61, 21 P.3d 964 (2001). The Moody panel then observed:

"In Dyke, the defendant was charged with one count of DUI. The complaint referenced neither K.S.A. 8-1567(f) nor (g), but instead charged Dyke with DUI `"after having been convicted of this same offense at least two times previously."' 33 Kan.App.2d at 169, 100 P.3d 972. Pursuant to a plea agreement, Dyke was sentenced to 90 days in jail, after which she would be placed on probation and enter alcohol counseling. The sentencing court originally imposed a fine of $1,500. However, at that point, the State noted that while Dyke was convicted of a third DUI, he actually had four prior DUI convictions which, pursuant to K.S.A. 8-1567(g), would make the fine $2,500. The district court agreed and imposed a fine of $2,500. 33 Kan.App.2d at 168, 100 P.3d 972.

"On appeal, this court [the Kansas Court of Appeals] held that the trial court lacked jurisdiction to sentence Dyke as a fourth-time DUI offender, citing State v. Horn, 20 Kan.App.2d 689, 692, 892 P.2d 513, rev. denied 257 Kan. 1094 (1995), for the rule that `if a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the trial court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented.' 33 Kan.App.2d at 169-70, 100 P.3d 972."

The Moody panel then noted:

"Recently, another panel of this court disagreed with Dyke, holding `that while Dyke reached the correct result, it did so for the wrong reason when it based its decision on lack of jurisdiction as opposed to lack of due process.' State v. Wheeler, No. 92,428, 115 P.3d 794, 2005 WL 1719380, unpublished opinion filed July 22, 2005; see also State v. Gardner, No. 92,649, 119 P.3d 19, 2005 WL 2209550, unpublished opinion filed September 9, 2005 (agreeing with Wheeler's rationale and concluding defendant received due process where the complaint charged the defendant with a nonperson felony and defendant received notice at plea stage of maximum penalties for fourth DUI offense). In reaching its conclusion, the Wheeler court relied on State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996).

"In Masterson, the State's amended complaint charged Masterson as a first-time DUI offender. After a bench trial, Masterson was convicted of a first-offense DUI. At sentencing, the State requested that Masterson be sentenced as a second offender, arguing that when the complaint was filed, the State was unaware of a prior DUI diversion entered into by Masterson. The district court denied the State's request and sentenced Masterson as a first offender. 261 Kan. at 160, 929 P.2d 127.

"The State appealed, contending that K.S.A. 22-3201 (setting out the requirements for a complaint, information, or indictment) does not require that the State give a defendant notice of the severity level of the DUI offense being charged. The Kansas Supreme Court disagreed, holding that although prior DUI convictions are not elements of the offense of DUI, `a defendant is entitled under due process to notice in the information or complaint of the severity level of the DUI offense being charged. . . .' (Emphasis added.) 261 Kan. at 163, 929 P.2d 127. Consequently, the Masterson court held that the trial court was correct in sentencing Masterson as a first-time offender. 261 Kan. at 164, 929 P.2d 127.

"We agree with the Wheeler court that pursuant to Masterson, the issue is one of due process rather than jurisdiction. Thus...