State v. Sedillos, 91,498.

• Decision Date: 03 June 2005
• Docket Number: No. 91,498.,91,498.
• Citation: 112 P.3d 854,279 Kan. 777
• Parties: STATE OF KANSAS, Appellee, v. PHILLIP J. SEDILLOS, Appellant.
• Court: Kansas Supreme Court

279 Kan. 777

112 P.3d 854

STATE OF KANSAS, Appellee, v. PHILLIP J. SEDILLOS, Appellant.

No. 91,498.

Supreme Court of Kansas.

Opinion filed June 3, 2005.

Patrick H. Dunn, assistant appellate defender, argued the cause and was on the brief for appellant.

Bryant T. Barton, assistant county attorney, William E. Kennedy III, former county attorney, Barry R. Wilkerson, county attorney, and Phill Kline, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

DAVIS, J.

Phillip J. Sedillos petitions this court for review of the Court of Appeals' decision affirming his conviction and sentence for a third offense of driving under the influence (DUI), an unclassified person felony, in State v. Sedillos, 33 Kan. App. 2d 141, 98 P.3d 651 (2004). He argues the use of his prior convictions under K.S.A. 2002 Supp. 8-1567(l)(3) was erroneous and that the classification of his current DUI as a felony third offense violated due process. We affirm.

In February 2003, the defendant was charged with his third DUI offense in violation of K.S.A. 2002 Supp. 8-1567 for conduct committed on October 4, 2002. The defendant had a prior conviction for DUI in July 1997 and was granted a diversion for DUI in January 1996.

Under K.S.A. 2002 Supp. 8-1567(l)(3), now K.S.A. 2004 Supp. 8-1567(m)(3), any DUI conviction or entry into a diversion agreement "occurring during a person's lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender." Under an earlier version of the statute, only DUI convictions or diversion agreements, classified as convictions, "occurring in the immediately preceding five years, including prior to the effect date of this act, shall be taken into account" for purposes of determining the enhanced sentence of the subsequent offense under the statute. See K.S.A. 2000 Supp. 8-1567(k)(3).

The defendant filed a motion to strike his lifetime prior convictions, arguing that application of the rules of statutory construction to K.S.A. 2002 Supp. 8-1567(l)(3) barred the use of his prior convictions to enhance his crime and penalty. He reasoned that the legislature's omission of "including prior to the effective date of this act" language in the July 1, 2001, amendment to K.S.A. 2000 Supp. 8-1567(k)(3), see L. 2001, ch. 200, sec. 14, barred the use of his prior DUI convictions that had occurred prior to July 1, 2001.

The district court denied the motion, finding that the statute as written applied prospectively rather than retroactively. It reasoned that the changed language was effective on July 1, 2001, well before the defendant's present DUI offense on October 4, 2002. The amendment in K.S.A. 2002 Supp. 8-1567(l)(3) provided that all DUI convictions or DUI diversion agreements occurring during a person's lifetime would be used in determining the enhancement penalty of the present DUI offense. Thus, the defendant was not entitled to any retroactive application.

The defendant waived his right to a jury trial, and the case was submitted for a bench trial on stipulated facts. The district court found the defendant guilty of DUI, a third offense, in violation of K.S.A. 2002 Supp. 8-1567(a) and (f). On this felony offense, he was fined $1,500 and sentenced to 1 year in jail, with work release granted after 48 hours had been served. Before the Court of Appeals, the defendant argued that application of the statute violated the Due Process and Ex Post Facto Clauses of the United States Constitution. See U.S. Const. Amend. V and XIV; U.S. Const. Art. I, § § 9, 10. He argued that the district court erred by using his two prior DUI convictions to enhance his DUI offense when K.S.A. 2002 Supp. 8-1567 does not contain a retroactive provision relating to prior convictions. The Court of Appeals rejected these arguments, as discussed below, and affirmed the trial court. See Sedillos, 33 Kan. App. 2d at 143-47. We granted the defendant's petition for review of these issues pursuant to K.S.A. 20-3018(b).

Statutory Interpretation of K.S.A. 2002 Supp. 8-1567(l)(3).

The defendant argues the Court of Appeals violated several rules of statutory construction by interpreting K.S.A. 2002 Supp. 8-1567(l)(3) as mandating the use of his prior DUI convictions to enhance his current DUI offense. The interpretation of a statute is a question of law over which this court has unlimited review. State v. Williams, 277 Kan. 338, 346, 85 P.3d 697 (2004).

K.S.A. 2000 Supp. 8-1567(k)(3) provided in relevant part:

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

(1) `Conviction' includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;

. . . .

(3) only convictions occurring in the immediately preceding five years, including prior to the effective date of this act, shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offender, whichever is applicable." (Emphasis added.)

Subsection (k)(3) of K.S.A. 2000 Supp. 8-1567 is referred to as a "decay" provision. See City of Norton v. Hurt, 275 Kan. 521, 522, 66 P.3d 870 (2003). The statute was amended in 2001, and the decay provision was removed. L. 2001, ch. 200, sec. 14. The amended statute contains identical provisions to K.S.A. 2000 Supp. 8-1567(k)(1) in subsection (1)(1); however subsection (1)(3) was amended to read "any convictions occurring during a person's life-time shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender." See K.S.A. 2002 Supp. 8-1567(l)(3); K.S.A. 2004 Supp. 8-1567(m)(3).

In a well-reasoned opinion, the Court of Appeals affirmed the district court's use of the defendant's prior conviction and diversion agreement occurring during the defendant's lifetime under K.S.A. 2002 Supp. 8-1567(l)(3), reasoning:

"Under K.S.A. 2002 Supp. 8-1567(l)(3), `any convictions occurring during a person's lifetime' shall be used in calculating the sentence to be imposed for a third offender. The statute does not limit a person's convictions to those that occur after July 1, 2001. To read such a requirement into the statute would be contrary to the plain language of the statute that a person's lifetime convictions shall be taken into account. As stated by our Supreme Court in GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001): `Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citation omitted.]' Here, the statute plainly reads that a person's lifetime convictions shall be taken into account when determining the sentence to be imposed and does not merely apply to those convictions that occur after July 1, 2001.

"If we were to construe K.S.A. 2002 Supp. 8-1567(l)(3) as applying to only those convictions that occur after the effective date of the amendment, such interpretation would produce an unreasonable result that would contravene the clear language of the statute. If we were to adopt Sedillos' interpretation, those prior DUI convictions occurring before July 2001 would not be counted for sentencing purposes. Thus, the result would contradict the language of K.S.A. 2002 Supp. 8-1567(l)(3) indicating that a person's lifetime prior convictions are to be taken into account for sentencing purposes. 'As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation. [Citation omitted.]' In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002).

"Although the previous version of K.S.A. 8-1567 included the phrase `prior to the effective date of this act,' this wording appeared to be unnecessary given what was already stated in the provision, that is, that convictions occurring in the immediately preceding 5 years would be taken into account. K.S.A. 2000 Supp. 8-1567(k)(3). Moreover, such wording is unnecessary for the amended version of 8-1567 where any convictions occurring during a person's lifetime are taken into account for sentencing purposes. K.S.A. 2002 Supp. 8-1567(l)(3). As a result, we find that the trial court properly used Sedillos' prior DUI convictions to enhance his current DUI offense to a felony." 33 Kan. App. 2d at 146-47.

The resolution of the issue we are called upon to decide depends upon the following rules of statutory construction:

"The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Where the face of the statute leaves its construction uncertain, the court may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. The legislative intent is to be determined from a general consideration of the entire act, and effect must be given, if possible, to the entire act and every part thereof, and it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible." State v. Van Hoet, 277 Kan. 815, Syl. ¶ 2, 89 P.3d 606 (2004).

"When the legislature revises an existing law, it is presumed that the legislature intended to change the law from how it

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