State v. Williams, 116,068
| Decision Date | 09 March 2018 |
| Docket Number | No. 116,068,116,068 |
| Citation | 55 Kan.App.2d 389,416 P.3d 1024 |
| Parties | STATE of Kansas, Appellee, v. Timothy J. WILLIAMS, Appellant. |
| Court | Kansas Court of Appeals |
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Arnold-Burger, C.J., Buser and Schroeder, JJ.
To determine whether to sentence a driving under the influence (DUI) offender in Kansas to a misdemeanor, meaning one or fewer prior DUI convictions, or a felony, meaning two or more prior DUI convictions, the court must verify the number of prior convictions. A conviction is defined as including not only prior convictions under K.S.A. 2016 Supp. 8-1567 but also including "a violation of an ordinance of any city ... which prohibits the acts that [ K.S.A. 8-1567 ] prohibits." K.S.A. 2016 Supp. 8-1567(i)(1).
Timothy J. Williams was convicted of a felony DUI because he had a prior DUI conviction under K.S.A. 8-1567 and another DUI conviction under a similar Wichita municipal ordinance. He argues that the district court improperly counted his Wichita municipal DUI because the city ordinance did not prohibit the same acts prohibited by K.S.A. 8-1567. We agree and vacate his sentence and remand for sentencing as a second-time offender under K.S.A. 2016 Supp. 8-1567(b)(1)(B).
Williams also asserts that he was improperly convicted of refusing to take a breath test under K.S.A. 2012 Supp. 8-1025, which was found to be unconstitutional by the Kansas Supreme Court. We agree and reverse his conviction for refusing to take a breath test.
In 2013, Williams was charged with refusing to submit to a breath test to determine the presence of alcohol; felony DUI; and failure to maintain a single lane. In order to establish that the DUI charge was a felony, the complaint referenced in part a prior DUI conviction in the Wichita Municipal Court. In 2012, Williams was convicted of DUI under Wichita Municipal Ordinance (W.M.O.) 11.38.150.
Williams filed a motion to dismiss the charge of refusing to submit to a breath test arguing that K.S.A. 2012 Supp. 8-1025 was unconstitutional because it criminalized his refusal to submit to a breath test. He also filed a motion to dismiss the felony DUI charge, arguing that his prior conviction for DUI under W.M.O. 11.38.150 could not be used as a prior DUI conviction for purposes of determining the level offense. The district court denied both motions.
The State and Williams proceeded to a bench trial on stipulated facts. At the bench trial, Williams preserved his arguments regarding the constitutionality of the criminalization of his refusal to submit to a breath test and the use of the Wichita municipal conviction for enhancement of his DUI from a misdemeanor to a felony. The district court judge found Williams guilty on all counts.
At sentencing, Williams again objected to his criminal history rearguing that his DUI conviction under W.M.O. 11.38.150 could not be used as a prior DUI when determining his sentence in the present case. The court denied Williams' objection. Williams was sentenced on Counts 1 and 2 to concurrent 12-month sentences. He was ordered to serve 72 hours in jail, followed by 2,088 hours of work release, with a $1,750 fine on each count. Williams was also ordered to serve 12 months of postimprisonment supervision. Williams was fined $50 on Count 3.
Williams timely appeals, arguing that his conviction under K.S.A. 2012 Supp. 8-1025 was unconstitutional and that the district court erred by considering his Wichita Municipal DUI for purposes of enhancing his sentence.
Williams' conviction for refusing to submit to a breath test under K.S.A. 2012 Supp. 8-1025 must be vacated.
Williams' conviction for refusing to submit to a test to determine presence of alcohol or drugs arose from K.S.A. 2012 Supp. 8-1025. On appeal, he argues that K.S.A. 2016 Supp. 8-1025 was found to be unconstitutional by the Kansas Supreme Court and therefore his conviction must be vacated. He is correct.
In State v. Ryce , 303 Kan. 899, Syl. ¶ 1, 368 P.3d 342 (2016), aff'd on reh. 306 Kan. 682, 396 P.3d 711 (2017), the Kansas Supreme Court found that K.S.A. 2016 Supp. 8-1025 is unconstitutional. This court is duty bound to follow Kansas Supreme Court precedent, absent some indication that the Supreme Court is departing from its previous position. State v. Meyer , 51 Kan.App. 2d 1066, 1072, 360 P.3d 467 (2015). Because the Kansas Supreme Court declared K.S.A. 2016 Supp. 8-1025 unconstitutional, Williams' conviction under that statute must be reversed.
The district court erred when it sentenced Williams to a felony DUI by including his prior Wichita municipal conviction for DUI as part of the felony sentencing calculus.
Williams was charged with felony DUI. The offense was classified as a felony because it was alleged that he had two prior DUI convictions in the preceding 10 years, one in Sedgwick County and one in the Wichita Municipal Court. As it applies to the facts of this case, under Kansas DUI law, for purposes of determining whether the offense was properly classified as a felony a conviction is defined as including "a violation of an ordinance of any city ... which prohibits the acts that [ K.S.A. 8-1567 ] prohibits." K.S.A. 2016 Supp. 8-1567(i)(1).
On appeal, Williams argues that the district court could not consider his Wichita Municipal Court DUI conviction under W.M.O. 11.38.150 because the Wichita ordinance did not, in January 2013, prohibit the same acts that 8-1567 prohibits. The difference between the state statute and the city ordinance is clear.
Both the city ordinance and the state law prohibit operating a "vehicle" while under the influence of alcohol or drugs or with an alcohol concentration of .08 or more—using the exact same language. K.S.A. 2016 Supp. 8-1567(a) ; W.M.O. 11.38.150(a). The difference comes in the definition of the term "vehicle." Under State law, the term includes "every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except electric personal assistive mobility devices or devices moved by human power or used exclusively upon stationary rails or tracks." K.S.A. 2016 Supp. 8-1485. At the time Williams was convicted Wichita defined "vehicle" as " ‘every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.’ " City of Wichita v. Hackett , 275 Kan. 848, 850, 69 P.3d 621 (2003). Because Wichita did not contain an exception for devices moved by human power it considered riding a bicycle while under the influence of alcohol a DUI, while the State did not. We pause to note that W.M.O. 11.04.400 was recently changed to define "vehicle" to mirror the State's definition of "vehicle." See W.M.O. 11.04.400 (Ord. No. 50-317, § 1, adopted September 13, 2016). Wichita has also adopted a separate ordinance of bicycling under the influence of alcohol or drugs. W.M.O. 11.48.190 (Ord. No. 50-316, §§ 1, 2, adopted September 13, 2016).
Whether the definition of a conviction under K.S.A. 2016 Supp. 8-1567(i)(1) includes a city ordinance that is not identical—but is in fact broader than the state law, is a matter of statutory construction.
Our standard of review is de novo.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State v. Jordan , 303 Kan. 1017, 1019, 370 P.3d 417 (2016). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331 (2016). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. 303 Kan. at 813, 368 P.3d 331.
Both the Kansas Court of Appeals and the Kansas Supreme Court have considered this issue before.
This argument is not new to this court and, with one exception, prior panels have all found that a Wichita municipal DUI conviction, as it existed before September 13, 2016, could not be counted for enhancement purposes because the city ordinance was broader than the state law. See State v. Lamone , 54 Kan.App. 2d 180, 193, 399 P.3d 235 (2017), petition for rev. granted February 26, 2018 (because Wichita ordinance is broader, and fact-finding would be needed, cannot be used for sentence enhancement); State v. Fisher , No. 115277, 2017 WL 2021526, at *5 (Kan. App.) (unpublished opinion), rev. granted 306 Kan. 1323 (2017) (same); State v. Mears , No. 115278, 2017 WL 1534748, at *6 (Kan. App. 2017) (unpublished opinion), rev. granted 306 Kan. 1327 (2017) (same); State v. Schrader , No. 115196, 2017 WL 947631, at *4 (Kan. App.) (unpublished opinion), rev. granted 306 Kan. 1329 (2017) (). But see State v. Gensler , No. 112523, 2016 WL 2610262, at *5 (Kan. App. 2016) (unpublished opinion), rev. granted 306 Kan. 1323 (2017) (). All have been accepted for review by the Kansas Supreme Court.
Likewise, all panels of our court addressing the issue outside of the Wichita municipal DUI context have held that K.S.A. 2016 Supp. 8-1567(i) means that a...
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...of impermissible judicial fact-finding), petition for rev. granted 307 Kan. 991, 417 P.3d 1033 (2018); see also State v. Williams , 55 Kan. App. 2d 389, 393, 416 P.3d 1024 (2018) (collecting cases). Recently, we have addressed similar sentencing classification questions. See, e.g., Dickey I......