State v. Schrader
Decision Date | 10 August 2018 |
Docket Number | No. 115,196,115,196 |
Citation | 423 P.3d 523 |
Parties | STATE of Kansas, Appellee, v. Christopher J. SCHRADER, Appellant. |
Court | Kansas Supreme Court |
C. Ryan Gering, of Hulnick, Stang, Gering & Leavitt, P.A., of Wichita, argued the cause and was on the briefs for appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, Wichita, and Derek Schmidt, attorney general, Topeka, were with him on the briefs for appellee.
Christopher J. Schrader appeals his sentence after pleading no contest to involuntary manslaughter while driving under the influence (DUI). Schrader's criminal history score was based in part on categorizing a July 2012 conviction in Wichita Municipal Court as a person felony under K.S.A. 2014 Supp. 21-6811(c)(2). Schrader argues his Wichita DUI should not have been included in his criminal history score because the Wichita DUI ordinance prohibits a broader range of conduct than the state DUI statute.
Schrader's argument is similar to the arguments we address in State v. Gensler , 308 Kan. ––––, 423 P.3d 488, 2018 WL 3798387 ( ), State v. Mears , 308 Kan. ––––, 423 P.3d 467, 2018 WL 3797522 ( ), and State v. Fisher , 308 Kan. ––––, 423 P.3d 528 ( ). Although he relies on language from a different statute, it is so similar to that examined in the three other cases that we are driven to the same conclusion: A conviction under the Wichita DUI ordinance does not count as a prior DUI, scored here as a person felony, because it prohibits a broader range of conduct than state law. Schrader's sentence must be vacated and this case remanded for resentencing.
On April 28, 2015, the State charged Schrader with five counts, including involuntary manslaughter while driving under the influence under K.S.A. 2014 Supp. 21-5405(a)(3). After entering into a plea agreement, Schrader pleaded no contest to the involuntary manslaughter charge, as well as to conspiracy to distribute a controlled substance.
Schrader's presentence investigation report assigned him a criminal history score of "D" for the involuntary manslaughter. As stated, his July 2012 Wichita DUI counted as a person felony under K.S.A. 2014 Supp. 21-6811(c)(2).
The Wichita ordinance governing at the time of Schrader's prior DUI read in pertinent part:
Schrader objected to the inclusion of the Wichita DUI conviction in his criminal history score. At sentencing, his counsel argued:
The district court dismissed the argument.
To establish the Wichita DUI conviction, the State offered the journal entry of judgment and the underlying charging document. The judge overruled Schrader's objection and relied on the Wichita DUI.
Schrader was sentenced to 69 months' imprisonment for involuntary manslaughter.
On appeal to the Court of Appeals, the panel agreed with Schrader that the breadth of prohibited acts under the Wichita ordinance precluded his conviction under the ordinance from being counted as a person felony under K.S.A. 2014 Supp. 21-6811(c)(2). The panel vacated Schrader's sentence and remanded for resentencing. See State v. Schrader , No. 115,196, 2017 WL 947631, at *4 (Kan. App. 2017) (unpublished opinion).
This court granted the State's petition for review.
To determine whether Schrader's prior Wichita DUI should count as a person felony requires the interpretation of K.S.A. 2014 Supp. 21-6811(c)(2). Issues of statutory interpretation raise questions of law over which appellate courts exercise unlimited review. State v. Castleberry , 301 Kan. 170, 175, 339 P.3d 795 (2014).
State v. Gray , 306 Kan. 1287, 1294, 403 P.3d 1220 (2017).
K.S.A. 2014 Supp. 21-6811(c)(2) is a sentencing provision that increases a sentence for involuntary manslaughter in the commission of driving under the influence if the defendant has a prior DUI conviction. Cf. K.S.A. 2017 Supp. 8-1567(i)(1) ; Gensler , 308 Kan. at –––– – ––––, slip op. at 7-8, 423 P.3d 488. Despite a "thick overlay of constitutional law," the classification of a prior DUI under K.S.A. 2014 Supp. 21-6811(c)(2) is exclusively a matter of state statutory law. See State v. Dickey , 305 Kan. 217, 221, 380 P.3d 230 (2016) ( Dickey II ); see also Gensler , 308 Kan. at ––––, slip op. at 7, 423 P.3d 488. The statute provides in pertinent part:
"(2) If the current crime of conviction ... is for a violation of subsection (a)(3) of K.S.A. 2014 Supp. 21-5405, ... each prior adult conviction ... for ... (B) a violation of ... an ordinance of any city ..., which prohibits the act described in K.S.A. 8-1567, ... shall count as one person felony for criminal history purposes." K.S.A. 2014 Supp. 21-6811(c).
With the exception of the use of the singular "act" instead of the plural "acts," the operative language in this statute is identical to the language in K.S.A. 2017 Supp. 8-1567(i)(1). That statute governs how to determine whether a state DUI is a "first, second, third, fourth or subsequent conviction" for sentencing and requires analysis of whether there has been a previous "violation of an ordinance of any city ... which prohibits the acts that this section prohibits."
We have interpreted the language of K.S.A. 2017 Supp. 8-1567(i)(1) to limit prior municipal DUI convictions usable as sentencing enhancements to those arising under ordinances that are the same as, or narrower than, the state DUI statute. See Gensler , 308 Kan. at ––––, slip op. at 13, 423 P.3d 488. Moreover, we have interpreted the language to require a comparison of the elements of K.S.A. 2017 Supp. 8-1567 to the elements of the ordinance. To conduct the...
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