State v. Myers

• Decision Date: 03 December 2021
• Docket Number: 046,122
• Parties: State of Kansas, Appellant, v. Jessica Lynn Myers, Appellee.
• Court: United States State Supreme Court of Kansas

State of Kansas, Appellant,
v.
Jessica Lynn Myers, Appellee.

No. 122, 046

Supreme Court of Kansas

December 3, 2021

SYLLABUS BY THE COURT

1.

In Kansas, the right to appeal arises from statute, and an appellate court has jurisdiction to consider interlocutory appeals by the State only if they are taken within the time limitations and in the manner prescribed by statute.

2.

K.S.A. 2020 Supp. 22-3603 permits the State to file an interlocutory appeal from a district court order suppressing or excluding evidence that substantially impairs the State's ability to prosecute its case.

3.

When sentencing defendants as repeat offenders under K.S.A. 2020 Supp. 8-1567, driving under the influence (DUI), the Legislature intended courts to count as prior convictions those out-of-state offenses comparable to Kansas' DUI statute in title, elements, and prohibited conduct, even if the elements of the out-of-state crime are broader.

1

4.

The Missouri driving while intoxicated (DWI) statute, Mo. Rev. Stat. § 577.010, is comparable to K.S.A. 2020 Supp. 8-1567, and a conviction under Missouri's DWI statute constitutes a prior conviction under K.S.A. 2020 Supp. 8-1567(i)(3)(B).

Review of the judgment of the Court of Appeals in 58 Kan.App.2d 903, 475 P.3d 1256 (2020). Appeal from Johnson District Court; Sara Welch, judge.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellant.

Adam D. Stolte, of Stolte Law, LLC, of Overland Park, argued the cause and was on the brief for appellee.

OPINION

WALL, J.

Jessica Lynn Myers was arrested on suspicion of operating a motor vehicle while under the influence of alcohol (DUI) in Johnson County, Kansas, on February 14, 2019. Given her two prior Missouri driving while intoxicated (DWI) convictions, the State charged Myers with felony DUI as a third-time offender.

Before trial, Myers filed a motion to strike her two prior Missouri DWI convictions, under Mo. Rev. Stat. § 577.010, from the proceedings. The district court granted the motion to strike, reasoning that Myers' prior Missouri DWI offenses were not "comparable" to those in K.S.A. 2018 Supp. 8-1567, for purposes of determining whether Myers was a repeat DUI offender, because the elements of the Missouri DWI statute were not identical to, or narrower than, the elements of the Kansas offense.

2

Without the prior Missouri DWI convictions, the State could not prosecute Myers for felony DUI, and the State filed an interlocutory appeal. The Court of Appeals held that K.S.A. 2020 Supp. 22-3603 authorized the State's appeal. But the panel majority concluded that Sixth Amendment considerations articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), require the courts to apply the "identical-to-or-narrower-than" elements test in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), when determining whether an out-of-state DUI conviction is "comparable" to K.S.A. 8-1567 and may be included as a prior conviction. State v. Myers, 58 Kan.App.2d 903, 913, 919, 475 P.3d 1256 (2020). The panel majority affirmed the district court's ruling because the elements of the Missouri DWI statute are broader than the elements of the Kansas offense.

In dissent, Judge Buser rejected this holding and adopted the rationale in State v. Patton, 58 Kan.App.2d 669, 475 P.3d 14 (2020), and State v. Mejia, 58 Kan.App.2d 229, 466 P.3d 1217 (2020). See Myers, 58 Kan.App.2d at 919 (Buser, J., concurring in part and dissenting in part). In Patton and Mejia, the Court of Appeals held that prior DWI convictions from Missouri are "comparable" to K.S.A. 8-1567, even though the elements of the out-of-state offense are broader than Kansas' DUI statute. Patton, 58 Kan.App.2d at 682; Mejia, 58 Kan.App.2d at 240, 249.

This appeal requires us to resolve two legal issues. First, we must interpret K.S.A. 2020 Supp. 22-3603 to determine whether it vests the appellate courts with subject matter jurisdiction over the State's interlocutory appeal. Second, assuming jurisdiction is proper, we must construe K.S.A. 2020 Supp. 8-1567 to determine whether a Missouri DWI conviction is an offense "comparable" to Kansas' DUI statute. In turn, our holding will resolve the split of opinion that has emerged between various panels of the Court of Appeals on this issue.

3

After careful consideration of the record and thorough review of the legal arguments, we hold that K.S.A. 2020 Supp. 22-3603 authorizes the State's interlocutory appeal and vests the appellate courts with subject matter jurisdiction. The statute permits the State to appeal from a district court's pretrial order suppressing evidence. For decades, we have interpreted this provision to authorize an interlocutory appeal from a district court's order excluding evidence, provided the ruling substantially impairs the State's ability to prosecute the case. Here, the district court's ruling substantially impaired the State's ability to prosecute Myers for felony DUI.

As to the merits, we conclude that the meaning of the phrase "an offense that is comparable to" Kansas' DUI statute, as used within K.S.A. 2020 Supp. 8-1567(i)(3)(B), is ambiguous. However, the legislative history makes clear the Legislature intended convictions from a nonexclusive list of jurisdictions, including Missouri, to be "comparable" offenses that qualify as a prior DUI offense under K.S.A. 2020 Supp. 8-1567, even if the elements of the out-of-state offense are broader. Therefore, the district court should have considered Myers' prior Missouri DWI convictions to determine if she had committed a first, second, third, or fourth or subsequent DUI.

Facts and Procedural Background

The parties' arguments primarily raise questions of law requiring us to construe various statutory provisions. As such, most of the underlying facts are not relevant to our analysis. We briefly set forth those facts necessary to frame the legal issues raised on appeal.

The State charged Myers with a felony DUI under K.S.A. 2020 Supp. 8-1567(b)(1)(D). That provision makes a third DUI offense a felony if one of the prior DUIs occurred in the last 10 years. Myers committed one of her Missouri DWIs in 2002

4

and committed the other one in 2010, well within the 10-year lookback period contemplated by statute.

A few weeks later, Myers moved the court to "strike any prior out of state convictions from the Court's consideration." She argued that under K.S.A. 2020 Supp. 8-1567(i)(3)(B), a court could consider out-of-state convictions only if they were "comparable" to a Kansas DUI offense and that under Wetrich, 307 Kan. at 562, convictions were "comparable" only if the elements of the out-of-state crime were identical to, or narrower than, the elements of the Kansas crime. The elements of the Missouri DWI statute were instead broader, Myers said, precluding the court from considering her two convictions from that state. The district court agreed and granted her motion. The State then timely filed this interlocutory appeal.

On appeal, Myers challenged the jurisdiction of the Court of Appeals. She claimed that K.S.A. 2020 Supp. 22-3603 did not authorize the State's appeal from the district court's order to strike. The Court of Appeals panel disagreed and held that it had jurisdiction to hear the State's appeal because the lower court's order had substantially impaired the State's ability to prosecute Myers as a third-time, felony DUI offender. Myers, 58 Kan.App.2d at 906-09.

But a majority of the panel agreed with Myers on the merits and held that Myers' prior Missouri DWI convictions could not be used to prosecute her as a third-time offender. 58 Kan.App.2d at 919. As explained in more detail below, when deciding whether an out-of-state DUI offense is "comparable" to a Kansas offense, K.S.A. 2020 Supp. 8-1567(j)(3) directs courts to consider "the name" and "elements" of the out-of-state offense and whether that offense "prohibits similar conduct." The majority believed these statutory factors invited sentencing courts to engage in judicial fact-finding prohibited by Apprendi, 530 U.S. at 490 (holding that Sixth Amendment prohibits a

5

sentencing court from engaging in judicial fact-finding, other than prior convictions, to enhance the defendant's sentence). Myers, 58 Kan.App.2d at 911-12. To avoid this result, the majority construed the statute to require a sentencing court to employ Wetrich's identical-to-or-narrower-than rule when determining whether an out-of-state conviction is "comparable." The majority reasoned that this construction would standardize the classification of out-of-state convictions and resolve any constitutional...