U.S. v. Porter, 98-40061-01-SAC.

• Decision Date: 21 April 1999
• Docket Number: No. 98-40061-01-SAC.,98-40061-01-SAC.
• Citation: 51 F.Supp.2d 1168
• Parties: UNITED STATES of America, Plaintiff, v. Leanne PORTER, Defendant.
• Court: U.S. District Court — District of Kansas

Page 1168

51 F.Supp.2d 1168

UNITED STATES of America, Plaintiff, v. Leanne PORTER, Defendant.

No. 98-40061-01-SAC.

United States District Court, D. Kansas.

April 21, 1999.

Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for plaintiff.

Charles D. Dedmon, Office of Federal Public Defender, Topeka, KS, defendant pro se.

Jeannine D. Herron, Topeka, KS, defendant pro se.

David J. Phillips, Office of Federal Public Defender, Topeka, KS, defendant pro se.

Leanne Porter, Topeka, KS, defendant pro se.

Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, defendant pro se.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

At the defendant's sentencing on April 16, 1999, the court ruled upon Ms. Porter's objections to the presentence investigation report ("PSI"). The court then commented that a memorandum and order would follow explaining the court's authority and rationale for sustaining the defendant's objection to the criminal history points assessed in the PSI for her 1996 diversion agreement in the District Court for Douglas County, Kansas, for driving under the influence of alcohol and/or drugs ("DUI"). This order serves as the court's written reasons and authority for its ruling.

The defendant objects that her stipulation to the police report as part of the diversion process is not the same as a plea of nolo contendere in a judicial proceeding. She further objects to the additional two points assessed for being under a criminal justice sentence, namely, this diversion agreement, when she committed the instant offense. The government does not respond to this objection.

The court looks to the following guideline provisions and application notes in deciding this objection. In calculating criminal history, the Sentencing Guidelines define a "prior sentence" as "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere." U.S.S.G. § 4A1.2(a)(1). The Guidelines exclude diversionary dispositions:

Diversion from the judicial process without a finding of guilt (e.g., deferred prosecution) is not counted. A diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere, in a judicial proceeding is counted as a sentence under § 4A1.1(c), even if a conviction is not formally entered, except that diversion from juvenile court is not counted.

U.S.S.G. § 4A1.2(f). In short, the exclusion depends on what stage at which diversion occurs. Application Note 3 to U.S.S.G. § 4A1.1 emphasizes that "[a] diversionary disposition is counted only where there is a finding or admission of guilt in a judicial proceeding. See § 4A1.2(f)." Application Note 9 to U.S.S.G. 4A1.2(f) reiterates the same point: "Section A1.2(f) requires counting prior adult diversionary dispositions if they involved a judicial determination of guilt or an admission of guilt in open court. This reflects a policy that defendants who receive the benefit of a rehabilitative sentence and continue to commit crimes should not be treated with further leniency." In sum, a diversionary disposition will not count as a prior sentence unless it has involved an adjudication of guilt, as in a finding or admission of guilt or a plea of nolo contendere in a judicial proceeding.

Kansas statutes establish the rules and procedures governing diversion agreements. The terms of a diversion agreement must be in accordance with K.S.A. § 22-2909, which provides in relevant part:

(a) A diversion agreement shall provide that if the defendant fulfills the obligations of the program described therein, as determined by the attorney general or county or district attorney, such attorney shall act to have the criminal charges against the defendant dismissed with prejudice. The diversion agreement shall include specifically the waiver of all rights under the law or the constitution of Kansas or of the United States to a speedy arraignment, preliminary examinations and hearings, and a speedy trial, and in the case of diversion under subsection (c) waiver of the rights to counsel and trial by jury....

....

(c) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1567 [driving under the influence of alcohol or drugs], and amendments thereto, the diversion agreement shall include a stipulation, agreed to by the defendant, the defendant's attorney if the defendant is represented by an attorney and the attorney general or county or district attorney, of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the terms of the specific diversion agreement and the criminal proceedings on the complaint are resumed, the proceedings, including any proceedings on appeal, shall be conducted on the record of the stipulation of facts relating to the complaint....

....

(f) If the attorney general or county or district attorney elects to offer diversion in lieu of further criminal proceedings on the complaint and the defendant agrees to all the terms of the proposed agreement, the diversion agreement shall be filed with the district court and the district court shall stay further proceedings on the complaint. If the defendant declines to accept diversion, the district court shall resume the criminal proceedings on the complaint.

Most noteworthy of these required provisions is the defendant's stipulation of the facts on which the complaint is brought. A separate Kansas statute prohibits conditioning diversion on the defendant's plea: "No defendant shall be required to enter any plea to a criminal charge as a condition of diversion." K.S.A. § 22-2910. Finally, if the district court finds that the defendant has failed to fulfill the terms of the diversion agreement, then the criminal proceedings on the complaint resume. K.S.A. § 22-2911(a). The PSI here reflects that this statutory procedure was followed in the defendant's DUI diversion in 1996, and there is nothing offered to show otherwise.

The court is well aware of the line of authority in Kansas courts that have recognized DUI diversions as "conviction-like:"

"The nature of diversion in the context of DUI violations is particularly indicative of the diversion's conviction-like nature. In order to enter into a diversion agreement, a defendant must stipulate to the facts constituting the offense. If the diversion program is not completed, a trial is had to the court based solely upon the stipulation. Thus, while there is not a guilty plea, there is an admission by the defendant of the commission of the offense."

State v. Booze, 238 Kan. 551, 555, 712 P.2d 1253 (1986) (quoting State v. Clevenger, 235 Kan. 864, 867, 683 P.2d 1272 (1984)); see State v. Knoff, 22 Kan.App.2d 85, 86-87, 911 P.2d 822 (1996). Of course, these courts were guided by the fact that the Kansas Legislature had made the DUI statute, K.S.A. 8-1567, "a `self-contained habitual criminal act'" that defined "conviction" to include "entering into a diversion agreement in lieu of further criminal proceedings on a complaint." Booze, 238 Kan. at 552, 554-55, 712 P.2d 1253. That the Kansas legislature chose to call a diversion agreement a "conviction" for purposes of enhancing state DUI sentences is not controlling for our purposes in deciding what is a "prior sentence" under the federal Sentencing Guidelines. See United States v. Tamayo, 80 F.3d 1514, 1523 (11th Cir.1996); United States v. Roberts, 39 F.3d 10, 13-14 (1st Cir.1994).

There are many federal opinions finding diversionary dispositions countable as prior sentences when the defendant is statutorily required or otherwise does plead guilty or enter a plea of no contest or when the court makes a finding of guilt. See, e.g., United States v. Charlton, 121 F.3d 700, 1997 WL 428588, at *1 (4th Cir. June 31, 1997) (West Virginia statute deferred adjudication upon a plea or finding of guilt); United States v. Cox, 114 F.3d 1189, 1997 WL 321116 (6th Cir. June 11, 1997) (Michigan law requires a guilty plea before a defendant is eligible for diversion); United States v. Jiles, 102 F.3d 278, 280 (7th Cir.1996) (Wisconsin statute deems the failure to appear in court as a plea of no contest); United States v. Craft, 82 F.3d 419, 1996 WL 185783, at *2 (6th Cir. Apr. 17, 1996) (Defendant signed and filed a petition for acceptance of plea of guilty that included an express admission of guilt); United States v. Vela, 992 F.2d 1116, 1117 (10th Cir.1993) (Oklahoma deferred sentencing statute required a verdict, plea of guilty or a plea of nolo contendere before the court could defer sentencing and place the defendant on probation); United States v. Cox, 934 F.2d 1114, 1124 (10th Cir.1991) (Colorado deferred judgment law required a plea, as opposed to a deferred prosecution which required no plea); United States v. Giraldo-Lara, 919 F.2d 19, 22-23 (5th Cir.1990) (Texas statute required a plea of guilty to be eligible for "deferred adjudication probation"); United States v. Rockman, 993 F.2d 811, 813-14 (11th Cir.1993) (A plea of nolo contendere where the court withholds adjudication of guilt is a countable diversionary disposition), cert. denied, 510 U.S. 1080, 114 S.Ct. 900, 127 L.Ed.2d 92 (1994). This line of authority stands for the rule that a diversionary disposition will be counted as a sentence under § 4A1.1(c) if the court merely defers its adjudication and sentencing upon a plea or finding of guilt.

In contrast, a "[d]iversion from the judicial process without a finding of guilt (e.g. deferred prosecution) is not counted." U.S.S.G. § 4A1.2(f). The Seventh Circuit has held that a stipulation of facts leading to a deferred prosecution is not a "prior sentence" under the Sentencing Guidelines:

In 1989 Havelka was charged with criminal damage to property in Illinois; the court entered an order of supervision. In Illinois a court may defer prosecution and impose supervision if the defendant...