State v. Patton
| Citation | 315 Kan. 1,503 P.3d 1022 |
| Decision Date | 11 February 2022 |
| Docket Number | 120,434 |
| Parties | STATE of Kansas, Appellee, v. Dwayne Lynn PATTON, Appellant. |
| Court | United States State Supreme Court of Kansas |
Shannon S. Crane, of Hutchinson, argued the cause and was on the briefs for appellant.
Thomas R. Stanton, district attorney, argued the cause, and Natasha Esau, assistant district attorney, Keith E. Schroeder, former district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
In this appeal we address the sentencing of repeat offenders under K.S.A. 8-1567, the driving under the influence (DUI) statute in Kansas. Recently in State v. Myers , 314 Kan. 360, 499 P.3d 1111 (2021), we held that under the 2018 amendments to that statute, the Legislature intended courts to count as prior convictions those out-of-state offenses comparable to the Kansas DUI statute, even if the elements of the out-of-state crime are broader. We must now decide whether those amendments apply to a person, like Dwayne Patton, who committed a DUI before, but was sentenced after, the amendments came into effect.
In State v. Reese , 300 Kan. 650, 333 P.3d 149 (2014), we held that courts should apply the DUI sentencing provisions in effect at the time of sentencing, even if the law has changed since the offense occurred. But the facts here require us to clarify this general rule established in Reese . We hold that a sentencing court should apply the version of K.S.A. 8-1567 in effect at the time of sentencing unless the Legislature amended the statutory provisions after the offense was committed and that amendment increases the defendant's penalty. In those circumstances, applying the intervening change in the law, relying on Reese , would violate the Ex Post Facto Clause of article I, section 10 of the United States Constitution. To avoid this constitutional quandary, sentencing courts should instead apply the version of K.S.A. 8-1567 in effect when the defendant committed the DUI offense.
Here, that means that the version of K.S.A. 8-1567 in effect when Patton committed his DUI in January 2016 applies in determining his sentence, not the 2018 amendments. Under the plain language of the statute in effect in 2016, two of Patton's out-of-state DUI convictions—one from Missouri and one from Oklahoma—would not count as prior convictions because the elements of those statutes are not identical to, or narrower than, the elements of the Kansas statute. But under the 2018 amendments, those out-of-state convictions would constitute prior convictions because the DUI statutes of those states are "comparable" to the Kansas DUI statute. See Myers , 314 Kan. at 377, 499 P.3d 1111. Because the Kansas DUI statute provides progressively enhanced penalties for repeat offenders, applying the 2018 amendments to Patton at sentencing would increase his punishment in violation of the Ex Post Facto Clause. We therefore reverse the panel of the Court of Appeals that applied those amendments and remand the matter to the district court for resentencing under the sentencing provisions in effect when Patton committed the DUI in January 2016.
The Kansas DUI statute provides progressively enhanced penalties for repeat offenders. See K.S.A. 2020 Supp. 8-1567(b)(1)(A)-(E). A first conviction is classified as a misdemeanor offense. K.S.A. 2020 Supp. 8-1567(b)(1)(A). A second conviction is a misdemeanor with increased jail time and fines. K.S.A. 2020 Supp. 8-1567(b)(1)(B). A third conviction is a misdemeanor with even more severe penalties unless the person has a prior DUI within the last 10 years, in which case it is a felony. K.S.A. 2020 Supp. 8-1567(b)(1)(C) and (D). And a fourth or subsequent conviction is always a felony. K.S.A. 2020 Supp. 8-1567(b)(1)(E).
Various statutory provisions inform the sentencing court which convictions to count when determining whether to sentence a defendant as a first-time, second-time, third-time, or fourth-or-subsequent-time offender. See K.S.A. 2020 Supp. 81567(i)(1)-(6). Relevant to this appeal are the provisions informing the courts which out-of-state DUI convictions qualify as prior offenses under Kansas' DUI statute. The 2018 legislative amendments to K.S.A. 8-1567 materially changed these provisions.
When Patton committed his DUI in January 2016, the version of the statute in effect directed courts to count out-of-state DUI convictions that "would constitute a crime" under the Kansas DUI statute. K.S.A. 2015 Supp. 8-1567(i)(3). But because Patton failed to appear several times, his jury trial did not occur until September 2018, and he was not sentenced until November 2018. In the meantime, the Legislature had amended K.S.A. 8-1567. Those amendments, which went into effect on July 1, 2018, directed courts to count out-of-state DUI convictions that "would constitute an offense that is comparable" to a DUI under the Kansas statute. K.S.A. 2018 Supp. 8-1567(i)(3)(B) ; L. 2018, ch. 106, § 13. We recounted the legislative process that produced the amendments in Myers, 314 Kan. at 368-76, 499 P.3d 1111.
At sentencing, the parties never discussed which version of K.S.A. 8-1567 applied because Patton had not disputed that he had at least three prior DUI convictions. His presentence investigation report showed four DUI convictions after July 1, 2001. See K.S.A. 2020 Supp. 8-1567(i)(1) (). The first was a 2003 Kansas conviction. The second was a 2003 Oklahoma conviction. The third was a 2007 Missouri conviction. And the fourth was a 2010 Kansas conviction. Based on these convictions, the district court sentenced Patton to 12 months in jail for having committed a fourth or subsequent DUI under K.S.A. 2018 Supp. 8-1567(b)(1)(E).
On appeal to a panel of the Court of Appeals, Patton argued for the first time that the district court had erred by counting his Oklahoma and Missouri DUI convictions as prior offenses, rendering his sentence illegal. Patton claimed that K.S.A. 2015 Supp. 8-1567, the version of the statute in effect when he had committed the offense, allowed courts to count out-of-state convictions only if the elements of the other state's DUI law were identical to, or narrower than, the elements of the Kansas law. And he insisted that the elements of Oklahoma's DUI and Missouri's driving while intoxicated (DWI) statutes were broader. The State agreed that Patton's sentence should be determined under the version of the law in effect when he committed the offense in January 2016. The State also agreed that the Missouri DWI statute was broader than the Kansas statute. But the State maintained that the elements of the Oklahoma statute were identical to Kansas' DUI statute.
The panel disagreed with the parties' analytical framework. Instead, the panel relied on our decision in Reese , which held that the DUI sentencing provisions in effect at the time of sentencing apply, even if those provisions were not yet in effect when the defendant had committed the offense. See 300 Kan. at 657, 333 P.3d 149. Under the Reese framework, the panel applied K.S.A. 2018 Supp. 8-1567, the version in effect after the 2018 amendments, and held that the district court properly counted Patton's Oklahoma and Missouri convictions as prior offenses because they were "comparable" to a Kansas DUI offense. State v. Patton , 58 Kan. App. 2d 669, 681-82, 475 P.3d 14 (2020).
We granted Patton's petition for review of this issue. The panel also rejected Patton's prosecutorial-error claim, but Patton did not petition for review of that issue. Following oral argument, we ordered supplemental briefing to address whether the panel's decision to apply the 2018 amendments to K.S.A. 8-1567, Reese , violated the Ex Post Facto Clause. In their supplemental briefs, Patton and the State agreed that the panel's application of the amendments violated the Ex Post Facto Clause and that this court should instead apply the DUI sentencing provisions in effect when Patton committed his offense.
Jurisdiction is proper. See K.S.A. 20-3018(b) (); K.S.A. 60-2101(b) ().
To resolve this appeal, we must determine which version of K.S.A. 8-1567 applies to Patton. Is it, as the panel held, the version in effect when Patton was sentenced? Or, as the parties contend, do ex post facto concerns require us to apply the version in effect when Patton committed his offense?
To answer those questions, we must interpret K.S.A. 8-1567 as well as statutes from Oklahoma and Missouri. As we have often said, the most fundamental rule of statutory construction is that we follow the Legislature's intent when we can establish it. State v. Gracey , 288 Kan. 252, 257, 200 P.3d 1275 (2009). We begin that search by looking at the statutory language. If that language is clear and unambiguous, we stop there. 288 Kan. at 257, 200 P.3d 1275. District courts and the Court of Appeals use the same approach. But statutory interpretation presents a question of law, so our review of the lower courts' conclusions is unlimited, and we need not defer to their interpretation of K.S.A. 8-1567. State v. Alvarez , 309 Kan. 203, 205, 432 P.3d 1015 (2019).
We must also determine whether the application of K.S.A. 2018 Supp. 8-1567 to Patton flouts the Ex Post Facto Clause, which generally prohibits the retroactive criminalization of an act or the retroactive increase in the severity of punishment for an offense. State v. Todd , 299 Kan. 263, 277-78, 323 P.3d 829 (2014). Like statutory interpretation, a statute's constitutionality raises a question of law subject to unlimited review. State v. Gonzalez , 307 Kan. 575, 579, 412 P.3d 968 (2018).
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