State v. Myers, No. 122,046

CourtCourt of Appeals of Kansas
Writing for the CourtSchroeder, J.
Parties STATE of Kansas, Appellant, v. Jessica Lynn MYERS, Appellee.
Decision Date02 October 2020
Docket NumberNo. 122,046

475 P.3d 1256

STATE of Kansas, Appellant,
v.
Jessica Lynn MYERS, Appellee.

No. 122,046

Court of Appeals of Kansas.

Opinion filed October 2, 2020


Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

Adam D. Stolte, of Stolte Law, LLC, of Overland Park, for appellee.

Before Schroeder, P.J., Green and Buser, JJ.

Schroeder, J.:

Jessica Lynn Myers was charged with felony driving under the influence (DUI), third offense. After Myers waived her preliminary hearing and pled not guilty, she moved to strike her two prior Missouri convictions for driving while intoxicated (DWI) from being used to elevate her current DUI charge to a felony. The district court granted Myers' motion, and the State timely filed this interlocutory appeal. On appeal, the only jurisdictional

475 P.3d 1259

basis the State invokes is its right to appeal from a motion to suppress under K.S.A. 2019 Supp. 22-3603. We find we have jurisdiction to hear the State's appeal under K.S.A. 2019 Supp. 22-3603, but we disagree with the State's arguments on the merits. The district court did not err when it held Myers' two prior Missouri DWI convictions could not be used to elevate her current charge to a felony DUI. We affirm the district court.

FACTS

Myers was arrested in Johnson County on February 14, 2019, for DUI. The State charged Myers with felony DUI, third offense, under K.S.A. 2018 Supp. 8-1567(b)(1)(D), based on her 2002 and 2010 Missouri DWI convictions under Mo. Rev. Stat. § 577.010.

Myers waived her preliminary hearing and was bound over for trial on felony DUI. She then pled not guilty to the charge. Myers timely moved to strike her prior Missouri DWI convictions from her criminal history, arguing her prior convictions could not be used to elevate her current DUI charge to a felony. Myers claimed the Missouri DWI statute was broader than Kansas' DUI statute and therefore failed the comparability analysis set out in K.S.A. 2019 Supp. 8-1567(i)(3) and (j).

The district court granted Myers' motion. Relying on the identical-to-or-narrower-than rule set out in State v. Wetrich , 307 Kan. 552, 412 P.3d 984 (2018), and the categorical approach in State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015) ( Dickey I ), the district court agreed with Myers' argument and found her prior Missouri DWI convictions were not comparable to Kansas DUI because the elements of the Missouri DWI statute were broader than the Kansas DUI statute. In doing so, the district court recognized it had to analyze the statutory definition of "comparable" offense as used in K.S.A. 2019 Supp. 8-1567(i)(3) within the constraints of Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

The district court issued its ruling striking Myers' Missouri DWI convictions from her criminal history. The district court, however, did not dismiss the felony DUI charge. The State, in its notice of appeal, appealed under K.S.A. 2019 Supp. 22-3603, K.S.A. 2019 Supp. 22-3602, and K.S.A. 2019 Supp. 21-6820.

ANALYSIS

I. We have jurisdiction over the State's appeal under K.S.A. 2019 Supp. 22-3603.

Myers argues we lack jurisdiction over the State's appeal. Whether jurisdiction exists is a question of law over which this court has unlimited review. The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. If a party appeals in a manner not prescribed by statutes, we must dismiss the appeal. See State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016).

In a criminal case, the State's right to appeal is limited by the jurisdictional bases provided by statute. Kansas appellate courts have "jurisdiction to entertain a State's appeal only if it is taken within time limitations and in the manner prescribed by the applicable statutes. State v. Sales , 290 Kan. 130, 134, 224 P.3d 546 (2010)." State v. Mburu , 51 Kan. App. 2d 266, 269-70, 346 P.3d 1086 (2015).

Here, the State's notice of appeal invoked our jurisdiction under K.S.A. 2019 Supp. 22-3603, K.S.A. 2019 Supp. 22-3602, and K.S.A. 2019 Supp. 21-6820. However, in its brief, the State only addresses our jurisdiction within the parameters of K.S.A. 2019 Supp. 22-3603, which provides:

"When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order ... suppressing evidence ... an appeal may be taken by the prosecution from such order if notice of appeal is filed within 14 days after entry of the order."

The other jurisdictional bases asserted in the State's notice of appeal have not been addressed in the State's brief. Accordingly, any potential arguments the State could have

475 P.3d 1260

made under these bases are waived or abandoned. See State v. Arnett , 307 Kan. 648, 650, 413 P.3d 787 (2018) (issues not briefed deemed waived or abandoned); State v. Berreth , 294 Kan. 98, 115-16, 273 P.3d 752 (2012) ("[T]he State [is] unable to expand its elected, and repeatedly asserted, statutory basis for jurisdiction in the Court of Appeals.").

There is no question the State appealed from the district court's order within the 14-day time limit. But Myers argues proof of a prior conviction is not an element of trial proof for a DUI conviction; therefore, the district court's order did not suppress evidence within the meaning of K.S.A. 2019 Supp. 22-3603.

To resolve this jurisdictional dispute, we consider Kansas appellate court decisions interpreting what an order "suppressing evidence" under K.S.A. 2019 Supp. 22-3603 entails. In State v. Boling , 5 Kan. App. 2d 371, 374, 617 P.2d 102 (1980), a panel of this court addressed the issue by turning to sections of the Kansas Code of Criminal Procedure— K.S.A. 22-3215, authorizing a pretrial motion to suppress a confession or admission, and K.S.A. 22-3216, authorizing a pretrial motion to suppress illegally seized evidence. The Boling court held these two sections, taken together with K.S.A. 22-3603, provide a statutory scheme for dealing with evidentiary rulings having "constitutional dimensions." 5 Kan. App. 2d at 374, 617 P.2d 102.

Later, in State v. Newman , 235 Kan. 29, 34, 680 P.2d 257 (1984), the Kansas Supreme Court interpreted K.S.A. 22-3603 more broadly:

"We hold that the term ‘suppressing evidence’ as used in [ K.S.A. 22-3603 ] is to have a broader meaning than the suppression of evidence which is illegally obtained. It should include not only ‘constitutional suppression’ but also rulings of a trial court which exclude state's evidence so as to substantially impair the state's ability to prosecute the case."

Thus, under Newman , an order "suppressing evidence" under K.S.A. 22-3603 can also include a district court's ruling admitting or excluding evidence based on the statutory rules of evidence in K.S.A. 60-401 et seq. See State v. Sales , 290 Kan. 130, 135-36, 224 P.3d 546 (2010). But the Newman court emphasized the State is not allowed to file an interlocutory appeal from every "run-of-the-mill pretrial evidentiary ruling of a district court." 235 Kan. at 35, 680 P.2d 257. Rather, K.S.A. 22-3603 "is intended to permit appellate review of trial court rulings on pretrial motions which may be determinative of the case. " 235 Kan. at 35, 680 P.2d 257. Thus, "the prosecutor should be prepared to make a showing to the appellate court that the pretrial order of the district court appealed from substantially impairs the state's ability to prosecute the case." 235 Kan. at 35, 680 P.2d 257.

Here, the district court's order did not entail constitutional suppression under K.S.A. 22-3215 or K.S.A. 22-3216. Nor did the order involve the exclusion of evidence based on the statutory rules of evidence, which generally concerns the exclusion of evidence from trial . See, e.g., State v. McDaniels , 237 Kan. 767, 771, 703 P.2d 789 (1985) (district court's order denying State's motion for revocation of diversion agreement was not order suppressing evidence); State v. Grimes , 229 Kan. 143, 147-48, 622 P.2d 143 (1981) (issue State raised did not fall within K.S.A. 22-3603 because issue did not need to be resolved for prosecution to proceed with trial and prove its case). In Kansas, "a prior DUI is a sentencing enhancement factor for, not an element for trial proof of, K.S.A. 8-1567 DUI." State v. Key , 298 Kan. 315, 319, 312 P.3d 355 (2013) ; see State v. Loudermilk , 221 Kan. 157, 160, 557 P.2d 1229 (1976) (prior DUI conviction not element of substantive crime, serves only to enhance punishment). Thus, the district court's order does not fall squarely within Boling 's or Newman 's interpretation of an order suppressing evidence.

Even so, the State argues under Newman , the order substantially impairs its ability to prosecute the case. DUI can be classified as either a nonperson misdemeanor or a nonperson felony. See

475 P.3d 1261

K.S.A. 2019 Supp. 8-1567(b)(1). If a defendant has 2 prior DUI convictions, one of which occurred in the last 10 years, the third conviction is a nonperson felony offense. K.S.A. 2019 Supp. 8-1567(b)(1)(D). A defendant's prior out-of-state conviction can also be classified as a prior DUI conviction if the out-of-state...

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3 practice notes
  • State v. Heim, No. 115,980
    • United States
    • United States State Supreme Court of Kansas
    • November 20, 2020
    ...to enforce the statutes as written, and suppression of the evidence would not serve the deterrent aim of the exclusionary rule.475 P.3d 1256 For these same reasons, the Kansas Legislature did not wholly abandon its responsibility to pass constitutional laws.Finally, Heim argues more harm th......
  • State v. Myers, 122,046
    • United States
    • United States State Supreme Court of Kansas
    • December 3, 2021
    ...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......
  • State v. Myers, 122
    • United States
    • United States State Supreme Court of Kansas
    • December 3, 2021
    ...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......
3 cases
  • State v. Heim, No. 115,980
    • United States
    • United States State Supreme Court of Kansas
    • November 20, 2020
    ...to enforce the statutes as written, and suppression of the evidence would not serve the deterrent aim of the exclusionary rule.475 P.3d 1256 For these same reasons, the Kansas Legislature did not wholly abandon its responsibility to pass constitutional laws.Finally, Heim argues more harm th......
  • State v. Myers, 122,046
    • United States
    • United States State Supreme Court of Kansas
    • December 3, 2021
    ...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......
  • State v. Myers, 122
    • United States
    • United States State Supreme Court of Kansas
    • December 3, 2021
    ...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......

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