State v. Reese, 106,703.

• Citation: 333 P.3d 149
• Decision Date: 29 August 2014
• Docket Number: No. 106,703.,106,703.
• Parties: STATE of Kansas, Appellee, v. Christian REESE, Appellant.
• Court: Kansas Supreme Court

333 P.3d 149

STATE of Kansas, Appellee,

v.Christian REESE, Appellant.

No. 106,703.

Supreme Court of Kansas.

Aug. 29, 2014.

Syllabus by the Court

K.S.A. 2011 Supp. 8–1567(j)(3) provides that the sentencing court is to take into account only those prior driving under the influence (DUI) convictions that occurred on or after July 1, 2001, and make the determination at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement. Accordingly, the provisions of K.S.A. 2011 Supp. 8–1567(j)(3) apply to all persons who are sentenced for DUI on or after the July 1, 2011, effective date of the amended statute.

Jay Norton, of Norton Hare, L.L.C., of Overland Park, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by JOHNSON, J.:

After Christian W. Reese was convicted of driving under the influence of alcohol (DUI), the district court imposed the enhanced sentence applicable to a person with four prior DUI convictions. Reese contends that a change in the law, effective July 1, 2011, should have applied at his August 2011 sentencing to exclude all of his pre-July 1, 2001, DUI convictions for sentence-enhancement purposes. The Court of Appeals held that the shortened look-back provision of the new law is a substantive change that cannot be applied retroactively and, therefore, the amended method of determining whether a DUI conviction is a first, second, third, fourth, or subsequent 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 prior DUI convictions applicable to the current DUI sentence is to be calculated at the time of sentencing on the current conviction, we hold that the shortened look-back period in K.S.A. 2011 Supp. 8–1567(j)(3) should have applied to Reese's August 2011 sentencing. Accordingly, the Court of Appeals and the district court are reversed, Reese's sentence is vacated, and the matter is remanded for resentencing.

Factual and Procedural Overview

Reese was arrested for DUI on July 3, 2009, but he was not convicted of the offense until June 6, 2011. His sentencing was scheduled for August 10, 2011, and a presentence investigation report identified four prior DUI convictions, all occurring before July 1, 2001. Reese filed a motion entitled “Defendant's Objection to and Motion to Strike Priors,” arguing that pursuant to K.S.A. 2011 Supp. 8–1567(j), which was effective July 1, 2011, only convictions occurring on or after July 1, 2001, were to be considered for sentence enhancement, i.e., to be used in determining whether the current conviction was a first, second, third, fourth, or subsequent conviction. The motion was denied, and Reese was subsequently sentenced as a fourth or subsequent DUI offender pursuant to K.S.A. 2009 Supp. 8–1567( o)(3), which then provided that all prior DUI convictions during a defendant's lifetime were counted for sentence enhancement purposes.

The Court of Appeals affirmed Reese's enhanced sentence. The panel first noted the “fundamental rule of criminal procedure in Kansas [is] that a defendant is sentenced based on the law in effect when the crime was committed.” Reese, 48 Kan.App.2d at 89, 283 P.3d 233 (citing State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 [2010] ). The panel did not discern any language in the statutory amendment indicating that the legislature clearly intended for the provision to apply “retroactively” to DUIs that were committed prior to, but not sentenced until after, the amendment's effective date. Then, because the statutory amendment was a substantive change in the law, the panel held the absence of clear legislative intent meant that the law applied prospectively only. 48 Kan.App.2d at 89–90, 283 P.3d 233. Finally, the panel rejected Reese's argument that criminal defendants should receive the benefit of ameliorative sentencing amendments because the panel could not discern any Kansas caselaw supporting such an argument. 48 Kan.App.2d at 91, 283 P.3d 233.

We granted Reese's petition for review pursuant to K.S.A. 20–3018(b), obtaining jurisdiction under K.S.A. 60–2101(b).

Statutory Interpretation of K.S.A. 2011 Supp. 8–1567

To reiterate, when Reese committed the current DUI offense, the applicable law said that a sentencing court must count all DUI convictions during the defendant's lifetime to determine whether the current conviction was a first, second, third, fourth, or subsequent offense for purposes of imposing an enhanced sentence, where applicable. We will refer to that prior law as the “lifetime look-back provision.” When Reese was sentenced, the law had changed 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). We will refer to the new law as the “limited look-back provision.”

The question presented, then, is which statute applied to Reese's sentencing, the one in effect when he was sentenced or the one in effect when he committed the acts giving rise to his conviction. We discern that, historically, a DUI defendant's criminal history of prior DUIs has been established at the time of sentencing and that the applicable statutory language is consistent with that procedure, i.e., the determination of whether the current conviction is the first or fifth for sentencing purposes need not occur until sentencing.

The Court of Appeals began its analysis by stating a general rule—that a defendant is sentenced based upon the law in effect when the crime was committed—before pivoting to the policy considerations this court set out in Williams, 291 Kan. at 560, 244 P.3d 667 (fixing penalty parameters on crime commission date “ ‘is fair, logical and easy to apply’ ”). But the sentencing question presented on appeal in this case is a function of statutory law. As with all such questions, the first step is to look at the statutory language before applying common-law rules or considering policy matters. Specifically, what we must interpret, construe, and apply is the following language from the amended DUI statute:

“(j) For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:

....

“(3) 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).

Standard of Review/Rules of Statutory Construction

Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).

The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). But if a statute is plain and unambiguous, this court will not speculate about legislative intent or turn to canons of construction or legislative history. State v. Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012). On the other hand, where a criminal statute is silent or ambiguous on a matter, the rule of lenity applies to mandate that the statute be construed in favor of the accused. Cf. State v. Thompson, 287 Kan. 238, 249, 200 P.3d 22 (2009) (statute silence or ambiguity on unit of prosecution construed in favor of defendant).

Analysis

Presumably because it started from the standpoint of the fundamental rule—that the law in effect at the time of the offense always controls sentencing—the Court of Appeals discerned that the only way the limited look-back provision could govern Reese's sentencing was if the amended statute were to be applied retroactively. From that perspective, we have no quarrel with the panel's recitation and application of the law, including the panel's statements that a statute operates prospectively unless there is clear language indicating the legislature intended otherwise and that a statutory amendment modifying the severity of punishment for a conviction alters substantive rights. Reese, 48 Kan.App.2d 87, Syl. ¶¶ 2, 4, 283 P.3d 233; see State v. Wells, 297 Kan. 741, 761, 305 P.3d 568 (2013); State v. Martin, 270 Kan. 603, 608–09, 17 P.3d 344 (2001).

But general rules promulgated by appellate courts, even those designated as “fundamental rules” or those generated as a “policy matter,” do not trump statutory provisions or legislative intent. If the legislature intended for the K.S.A. 2011 Supp. 8–1567(j)(3) determination of whether the person convicted of DUI was “a first, second, third, fourth, or subsequent offender” to occur at the time of sentencing, then applying the limited look-back provision of the July 1, 2011, amendment to all sentences imposed after that date would be a prospective, not a retroactive, application of the statutory provisions. The statutory language, when considered in the context of how DUI criminal history has previously been treated by the courts and legislature, convinces us that the legislature intended the limited look-back provision of K.S.A. 2011 Supp. 8–1567(j)(3) to be applied at the time of sentencing, beginning with sentencings occurring on or after July 1, 2011.

To get to the aforementioned context, we pause to look at the nature of the DUI statutory scheme, its historical development, and how prior offenses have historically been handled.

Kansas'...