State v. Tims

• Citation: 302 Kan. 536,355 P.3d 660
• Decision Date: 14 August 2015
• Docket Number: 109,472.
• Parties: STATE of Kansas, Appellant, v. Daniel W. TIMS, Appellee.
• Court: Kansas Supreme Court

302 Kan. 536

355 P.3d 660

STATE of Kansas, Appellant

v.Daniel W. TIMS, Appellee.

109,472.

Supreme Court of Kansas.

Aug. 14, 2015.

Timothy Liesmann, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was on the briefs for appellant.

Kevin P. Shepherd, of Topeka, argued the cause and was on the briefs for appellee.

Opinion

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

Daniel W. Tims appeals the Court of Appeals' decision in State v. Tims, 49 Kan.App.2d 845, 317 P.3d 115 (2014), reversing the district court's decision holding that Tims' 2002 uncounseled driving under the influence (DUI) diversion could not be counted as a prior DUI conviction for purposes of determining his sentence for his current DUI conviction. The Court of Appeals found that Tims' Sixth Amendment right to counsel did not attach during the 2002 diversion proceedings. The court also concluded that though Tims had a statutory right to counsel during the diversion proceedings, the diversion agreement that Tims signed showed that he had validly waived this statutory right. Accordingly, the Court of Appeals determined that Tims' 2002 DUI diversion could be properly counted as a prior conviction and, thus, remanded Tims' case with directions that his current DUI conviction be classified and sentenced as a felony third DUI.

We granted Tims' petition for review to determine whether, absent a valid waiver of the right to counsel, an uncounseled DUI diversion can be considered as a prior conviction for classification and sentencing purposes in a subsequent DUI proceeding without violating a defendant's constitutional or statutory right to counsel.

Facts

Tims does not contest the accuracy of the Court of Appeals' recitation of the facts in its opinion. That portion of the opinion is quoted below:

“The Jackson County District Court found Tims guilty of driving under the influence of alcohol in June 2012. This was not Tims' first DUI. In 2002, Tims executed a DUI diversion agreement in the Topeka Municipal Court. There is no evidence in the record regarding whether Tims successfully completed the diversion; however, Tims makes no claim that he served jail time in connection with his Topeka offense; Tims' presentence investigation report lists it as a diversion and not a conviction; and since it is the subject of this appeal, we presume the diversion was never revoked and no sentence was imposed. Tims was convicted of another DUI in 2004.

“Based upon the 2002 DUI diversion and the 2004 DUI conviction, in 2012 the State charged Tims with felony DUI under K.S.A. 2011 Supp. 8–1567(a)(5) and (b)(1)(D). Curiously, Tims waived his preliminary hearing then subsequently filed a Motion to Strike Diversion from Consideration of Defendant's Criminal History and Discharge from Felony Charges. After the State responded only to the merits of the motion and not its procedural propriety, the district court heard arguments and granted Tims' motion. The State then filed a motion to reconsider, resulting in a brief hearing and denial by the district court. Thereafter, the parties agreed to a bench trial upon stipulated facts. The State reserved the right to appeal the district court's sentencing decision based on the court's exclusion of Tims' 2002 DUI diversion from his criminal history.

“The district court found Tims guilty, treated his conviction as a second misdemeanor DUI conviction, and sentenced him to probation. The State timely appeal[ed] based on an illegal sentence and on a question reserved.” Tims, 49 Kan.App.2d at 847, 317 P.3d 115.

The Court of Appeals, relying on State v. Key, 298 Kan. 315, 322–23, 312 P.3d 355 (2013) (“A defendant who intends to challenge the validity of a prior misdemeanor DUI as a classifying factor for a DUI felony charge under K.S.A. 8–1567 should challenge the prior misdemeanor at preliminary hearing ...”), found that because Tims waived his right to a preliminary hearing, he waived his right to challenge the classification of the current DUI as a nonperson felony. Additionally, the panel, relying on State v. Bell, 268 Kan. 764, 768, 1 P.3d 325 (2000) (once probable cause existed to bind defendant over on charge, judge had no authority to amend charge), and State v. Leslie, 237 Kan. 318, 319, 699 P.2d 510 (1985) (magistrate judge had no authority to amend felony charge to misdemeanor at the conclusion of preliminary hearing), concluded that once Tims waived his right to a preliminary hearing, the district court did not have the authority to reclassify the DUI charge as a misdemeanor. The panel also determined that because the State was challenging the legality of Tims' sentence based on the assertion that he should have received a sentence for a felony third DUI instead of a misdemeanor second DUI, the State's appeal was properly before it under K.S.A. 22–3504. Tims, 49 Kan.App.2d at 848–50, 317 P.3d 115. Tims did not challenge these conclusions in his petition for review and, thus, they are waived. See State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012) (An issue not briefed by the appellant is deemed waived and abandoned.).

Regarding the merits of the State's argument, the panel found that the district court erred in not considering Tims' 2002 DUI diversion as a prior conviction for sentence enhancement purposes. Based on precedent from the United States Supreme Court and this court, the panel concluded that Tims' Sixth Amendment right to counsel did not attach during the 2002 diversion proceedings and, thus, his diversion could be properly considered for sentencing purposes without violating his constitutional rights. The panel, however, found that based on K.S.A. 12–4416(a), Tims had a statutory right to counsel during the diversion conference with the city prosecutor. But based on the language within the diversion agreement that Tims signed, the panel concluded that Tims validly waived his statutory right to counsel. The panel specifically rejected Tims' argument that in order for his waiver to have been valid, there had to be a written certification from a municipal court judge stating that the judge fully advised Tims of his right to counsel and that Tims knowingly and voluntarily waived that right in front of the judge. The panel reasoned that because a diversion agreement is a contract solely between a prosecutor and a defendant, there was no need for a judge's certification on the diversion agreement. Thus, the Court of Appeals reversed the decision of the district court and remanded the case for resentencing as a felony conviction for a third DUI. Tims, 49 Kan.App.2d at 852–58, 317 P.3d 115.

Tims' failure to seek review of these procedural and jurisdictional conclusions on petition for review constitutes a waiver of the issues under State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012). Yet, as noted by the Court of Appeals, appellate courts have a duty to question appellate jurisdiction sua sponte. Ryser v. State, 295 Kan. 452, 456, 284 P.3d 337 (2012). Our review of the proceedings in this case reveals a tangled web of procedural and jurisdictional issues which have not been adequately briefed or addressed by either party or fully considered by the panel below. As the State originally appealed the use of the prior uncounseled DUI diversion on alternate jurisdictional grounds, we elect to consider this appeal as a question reserved of statewide importance under K.S.A. 2014 Supp. 22–3602(b)(3), rather than an appeal from an illegal sentence under K.S.A. 22–3504, cognizant that our review will have no effect on Tims' sentence. See State v. Berreth, 294 Kan. 98, 123, 273 P.3d 752 (2012) (“an appellate court's answer to a State's question reserved has no effect on the criminal defendant in the underlying case”).

Constitutional Right to Counsel in DUI Diversion Proceedings

In his petition for review, Tims argues that the Court of Appeals erred in determining that he did not have Sixth Amendment right to be represented by counsel when he entered into the 2002 DUI diversion agreement with the Topeka city prosecutor. As noted above, this conclusion led the Court of Appeals to hold that the diversion could be counted as a prior conviction for purposes of enhancing Tims' sentence for his current felony third DUI conviction without violating his constitutional rights.

Whether Tims had a constitutional right to counsel during the 2002 diversion proceedings raises a question of law subject to unlimited review. See State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010) (stating that the extent of the right to counsel is a question of law over which this court exercises unlimited review).

Based on the United States Supreme Court's holding in Alabama v. Shelton, 535 U.S. 654, 658, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), this court in State v. Youngblood, 288 Kan. 659, Syl. ¶ 2, 206 P.3d 518 (2009), held:

“A person accused of a misdemeanor has a Sixth Amendment right to counsel if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. The right to counsel arises at the stage of the proceedings where guilt is adjudicated, eligibility for imprisonment is established, and the prison sentence determined.”

Further, we held in Youngblood that an uncounseled misdemeanor conviction obtained in violation of a defendant's Sixth Amendment right to counsel (i.e., an uncounseled conviction that resulted in a prison sentence, even if the sentence was suspended or conditioned upon a term of probation) “may not be collaterally used for sentence enhancement in a subsequent criminal proceeding.” 288 Kan. 659, Syl. ¶ 3, 206 P.3d 518. Conversely, an uncounseled misdemeanor conviction that resulted in no prison sentence being imposed may be used to enhance punishment for a subsequent conviction without violating the Sixth Amendment. Nichols v. United States, 511 U.S. 738, 748–49, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) ; Youngblood, 288 Kan....