State v. Reese, 106,703.
| Decision Date | 10 August 2012 |
| Docket Number | No. 106,703.,106,703. |
| Citation | 283 P.3d 233 |
| Parties | STATE of Kansas, Appellee, v. Christian REESE, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. It is a fundamental rule of criminal procedure in Kansas that a defendant is sentenced based on the law in effect when the crime was committed.
2. The fundamental rule regarding retroactivity of statutory changes is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively.
3. As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishments therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.
4. A statutory amendment modifying the severity of punishment for a conviction alters substantive rights, and therefore only operates prospectively.
5. K.S.A.2011 Supp. 8–1567(j)(3), which shortens the “look-back” period for determining the number of previous DUI convictions taken into account from a lifetime to only those convictions occurring on or after July 1, 2001, cannot be applied retroactively. It applies only to crimes committed on or after the effective date of the statutory amendment.
Jay Norton, Norton Hare, L.L.C., Overland Park, for appellant.
Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
Christian W. Reese appeals his sentence for a fifth lifetime conviction of driving under the influence of alcohol (DUI), arguing that the district court erred in failing to retroactively apply K.S.A.2011 Supp. 8–1567(j)(3), which, for purposes of determining whether a DUI conviction is a first, second, third, fourth, or subsequent conviction, shortens the “look-back” provision language from “any convictions occurring during a person's lifetime” to “only convictions occurring on or after July 1, 2001.” L.2011, ch. 105, sec. 19.
On July 3, 2009, Reese was arrested for DUI, and he was convicted on June 6, 2011. His presentence investigation report reflected DUI convictions from 1983, 1985, 1988, and 1999. Reese filed a motion to strike his prior DUI convictions as being outside the scope of the new “look-back” provision of K.S.A.2011 Supp. 8–1567(j)(3) in effect at the time of sentencing. The district court denied the motion and found that Reese's July 3, 2009, DUI was a fourth or subsequent DUI conviction under K.S.A.2009 Supp. 8–1567, and sentenced Reese accordingly.
Reese appeals, arguing that the district court erred in refusing to retroactively apply K.S.A.2011 Supp. 8–1567(j)(3).
Reese argues that the change to K.S.A. 8–1567's “look-back” provision should be applied retroactively. At the time Reese committed his fifth lifetime DUI, the Kansas DUI statute contained a lifetime “look-back” provision; that is, any conviction occurring during a person's lifetime was taken into account when determining the sentence to be imposed for a second, third, fourth, or subsequent offender. K.S.A.2009 Supp. 8–1567( o)(3). It was not until 2011 that the legislature amended the “look-back” period to provide that “only convictions occurring on or after July 1, 2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” K.S.A.2011 Supp. 8–1567(j)(3); L.2011, ch. 105, sec. 19.
Reese argues that because each of his four prior DUI convictions occurred before July 1, 2001, he should have been sentenced as a first-time offender under the amended statute that became effective before his sentencing. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Reese argues that the amendment is clear, plain, and unambiguous on its face; as of July 1, 2011, DUI convictions occurring before July 1, 2001, are not to be considered for sentence enhancement. Although the amendment was effective before Reese's sentencing, it was not effective when his crime was committed.
It is a fundamental rule of criminal procedure in Kansas that a defendant is sentenced based on the law in effect when the crime was committed. State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010); State v. Walker, 277 Kan. 849, 850, 89 P.3d 920 (2004). As a policy matter, our Supreme Court has explained that “having the penalty parameters for an offense ‘fixed as of the date of the commission of the offense is fair, logical, and easy to apply.’ ” Williams, 291 Kan. at 560, 244 P.3d 667. Our Supreme Court has found that a defendant's sentence was properly enhanced under the habitual criminal statute even though after the defendant committed aggravated burglary, but before his trial and sentencing, the statute was amended and no longer authorized a trial court to double the maximum sentence for a defendant convicted of aggravated burglary. State v. Mayberry, 248 Kan. 369, 387, 807 P.2d 86 (1991). Similarly, a panel of this court has found that an amendment to the driving while suspended statute, changing the conviction from a felony to a misdemeanor, did not apply retroactively. State v. Edwards, 28 Kan.App.2d 379, 380–81, 15 P.3d 855 (2000); see State v. Martin, 270 Kan. 603, 607–10, 17 P.3d 344 (2001).
Moreover, we discern no language in the legislation that would indicate intent for retroactive application of this provision. Our Supreme Court has stated the fundamental rule regarding retroactivity of statutory changes:
Williams, 291 Kan. at 557, 244 P.3d 667.
Because the legislature did not clearly indicate that it intended the amendment to operate retroactively, it operates prospectively unless we conclude that the procedural or remedial exception somehow applies. Our Supreme Court has defined substantive and procedural laws as follows: “ ‘As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.’ ” Tonge v. Werholtz, 279 Kan. 481, 487, 109 P.3d 1140 (2005). Prospective application of a statute affecting sentencing necessarily means it applies to crimes committed thereafter.
Here, the district court found that the “look-back” amendment was a...
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State v. Reese, 106,703.
...conviction can only apply to DUIs committed on or after July 1, 2011, regardless of the sentencing date. State v. Reese, 48 Kan.App.2d 87, 90–91, 283 P.3d 233 (2012). Finding that the plain statutory language and the unique nature of the DUI sentencing scheme dictate that the number of prio......
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State v. Herman
...acknowledges that most of these arguments have been resolved against her in previous decisions by this court. See State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012), rev. granted October 1, 2013 (argued to the Supreme Court on January 23, 2014). As our Supreme Court's decision will ultim......
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State v. Tafoya
...State v. Reese, ruling that the 2011 lookback period was not applicable to crimes committed prior to its effective date. 48 Kan.App.2d 87, 283 P.3d 233 (2012), rev'd 300 Kan. 650, 333 P.3d 149 (2014). Relying on the Court of Appeals' holding in Reese, the Tafoya II panel ruled that because ......
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State v. Ulrich
...has rejected arguments nearly identical to those raised by Ulrich and we find the analysis sound. Recently, in State v. Reese, 48 Kan.App.2d 87, ––––, 283 P.3d 233 (2012), the court found: “Reese argues that the change to K.S.A. 8–1567's ‘look-back’ provision should be applied retroactively......