State v. Obiero
| Decision Date | 28 January 2022 |
| Docket Number | 121,341 |
| Parties | State of Kansas, Appellee, v. Alfred N. Obiero, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
MODIFIED OPINION[1]
Modified opinion filed April 22, 2022.
Appeal from Sedgwick District Court; David L. Dahl, judge.
Alfred N. Obiero, appellant pro se.
Lance J. Gillett, assistant district attorney, Marc Bennett district attorney, and Derek Schmidt, attorney general, for appellee.
Before Warner, P.J., Malone, J., and Michael B. Buser, Court of Appeals Judge Retired, assigned.
This is a pro se sentencing appeal brought by Alfred N. Obiero who was convicted of aggravated battery while driving under the influence (DUI) of alcohol.
Previously, on January 28, 2022, our court considered Obiero's appeal and filed an unpublished opinion holding that the district court did not err in calculating Obiero's criminal history score. We determined, however that the district court imposed an illegal postrelease supervision term at sentencing. State v. Obiero, No. 121, 341, 2022 WL 262195 (Kan. App.) (unpublished opinion), petition for rev. filed February 28, 2022.
After the original opinion was filed, Obiero filed a motion for rehearing asking our court to reconsider the opinion in two respects. Obiero asserted that our court erred in affirming the district court's scoring of his prior DUI convictions as person felonies because the relevant statute, K.S.A. 2017 Supp. 21-6811(c)(3), is ambiguous. Obiero also argued that we had mistakenly determined that the Haysville Municipal Court had jurisdiction to convict him of a prior DUI and, as a result, the criminal history score calculated in this case was accurate. The State opposed Obiero's motion for rehearing and reconsideration.
Upon rehearing, we have reconsidered the two issues raised by Obiero on appeal. Regarding the claim that his prior DUI convictions were erroneously scored because K.S.A. 2017 Supp. 21-6811(c)(3) is ambiguous, we reaffirm the holding and supporting analysis in the original opinion. We do not find any sentencing error in this regard. As to the second issue, we conclude that although the analysis in our opinion about the Haysville Municipal Court's jurisdiction was faulty, the alternative basis establishing jurisdiction proffered by the State was correct. As a result, we reaffirm our conclusion that Obiero's criminal history score was correctly calculated because the Haysville Municipal Court had concurrent jurisdiction to find Obiero guilty of his prior DUI offense.
In summary, we hold the district court did not err in calculating Obiero's criminal history score and affirm that the prison sentence imposed was lawful. As before, we also find the district court imposed an illegal postrelease supervision term at sentencing.
Accordingly, we vacate the 36-month postrelease supervision term and remand with directions for the district court to sentence Obiero to a 24-month postrelease supervision term as provided by K.S.A. 2017 Supp. 22-3717(d)(1)(B). Obiero's sentence is affirmed in all other respects.
In Obiero's motion for rehearing and reconsideration, he states: "The necessary facts have been sufficiently detailed in the opinion." Similarly, the State in opposing Obiero's motion does not object to the statement of facts and procedural background as written in the original opinion. Accordingly, we restate those facts.
In keeping with a plea agreement, Obiero pled guilty to aggravated battery while DUI, in violation of K.S.A. 2017 Supp. 21-5413(b)(3)(A), (g)(2)(C). In return for the plea, the State dismissed Obiero's remaining charges which included two additional counts of aggravated battery while driving under the influence, driving while suspended, and unlawfully operating a vehicle on the left side of the roadway. The State also agreed to recommend that the district court grant a downward durational departure to 84 months' imprisonment at sentencing.
At the plea hearing, the parties discussed the application of K.S.A. 2017 Supp. 21-6811(c)(3) that governs the classification of prior DUI convictions when an individual is subsequently convicted of aggravated battery while DUI. The statute provides:
The parties anticipated that given Obiero's conviction for aggravated battery while DUI, K.S.A. 2017 Supp. 21-6811(c)(3) would apply at sentencing.
A presentence investigation (PSI) report calculated that Obiero's criminal history score was A. The PSI report showed that Obiero had numerous prior convictions, five of which were for DUI. As anticipated, the PSI investigator applied K.S.A. 2017 Supp. 21-6811(c)(3) to Obiero's five prior DUI convictions, resulting in four prior DUI convictions being scored as person felonies. The relevant entries showed:
Before sentencing, Obiero challenged his criminal history score as calculated in the PSI report. Obiero disputed three prior convictions-entries 8, 10, and 11-claiming he had "no recollection of the charges." Additionally, he challenged each prior DUI conviction on multiple grounds. Relevant to this appeal, Obiero challenged whether the predicate convictions for imposing K.S.A. 2017 Supp. 21-6811(c)(3)-the special sentencing rule for classifying prior DUI convictions when subsequently convicted of aggravated battery while DUI-were properly shown. Obiero also challenged whether the Haysville DUI conviction listed in Entry 18 was void because the municipal court lacked subject matter jurisdiction.
At sentencing, following lengthy argument, the district court struck the prior DUI convictions listed in entries 3 and 10 but denied Obiero's remaining objections. The district court ruled that Obiero's criminal history score was B based, in relevant part, on scoring entries 5 and 18 as adult person felonies.
Upon finding Obiero's criminal history score was B, the district court followed the recommendations of the plea agreement. The district court granted Obiero's motion for a downward dispositional departure and sentenced him to 84 months' imprisonment with 36-months postrelease supervision. A journal entry memorialized the sentence. Later, the district court filed an agreed-upon journal entry which corrected the erroneous 36-month postrelease supervision term to reflect the statutorily mandated 24-month term.
As mentioned earlier, upon Obiero's appeal, our court vacated the 36-month postrelease supervision term and remanded with directions to impose a 24-month postrelease supervision term. Obiero's sentence was affirmed in all other respects. Obiero then filed a motion for rehearing asking our court to reconsider the original opinion as it related to the calculation of his criminal history score and the State objected to the motion. We grant the motion and upon reconsideration file this modified opinion.
For its initial argument in opposition to Obiero's appeal, the State contends our court does not have jurisdiction to consider Obiero's appeal and that he failed to preserve the sentencing issues for appeal. Alternatively, the State argues Obiero's challenges to his criminal history score are without merit. We address the State's jurisdictional and preservation arguments first.
According to the State, "appellate courts lack jurisdiction to review an agreed upon sentence imposed under the terms of a plea agreement that is approved by the court." Whether jurisdiction exists is a question of law over which our court's scope of review is unlimited. State v Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, the appellate court must dismiss the appeal. State v. Delacruz, 307 Kan. 523, 529, 411 P.3d 1207 (2018).
The right to appeal is entirely statutory. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. Smith, 304 Kan. at 919.
Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609-10, 244 P.3d 642 (2010).
See State v. Gill, 287 Kan....
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