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State v. Manbeck5/30/2003
Sentence vacated and case remanded with directions.
Scott E. Manbeck was charged with one count of involuntary manslaughter while driving under the influence of alcohol or drugs, as prohibited by K.S.A. 8-1567 and K.S.A. 2002 Supp. 21-3442. He entered a plea of guilty. At the plea hearing, the district court inquired whether Manbeck had any doubt he was operating a motor vehicle while under the influence of alcohol or drugs, to which Manbeck replied he did not.
The presentence investigation report included four prior convictions for driving while under the influence which were converted from misdemeanors to person felonies under the provision of K.S.A. 2002 Supp. 21-4711(c)(2). Manbeck was given a criminal history score of "A."
Manbeck filed an objection to his criminal history score, claiming the prior offenses could not be converted to felonies because the statute permitting the conversion applied only to cases where a defendant was convicted of driving while under the influence of alcohol and drugs. Since he admitted only to driving while under the influence of alcohol or drugs, the statute was inapplicable.
The district court found the legislature intended to score all prior convictions for driving while under the influence as person felonies when the current offense involved driving while under the influence of alcohol or drugs. Manbeck was sentenced to 162 months in prison.
Manbeck contends the district court erred in applying K.S.A. 2002 Supp. 4711(c)(2). Manbeck was convicted of violating K.S.A. 2002 Supp. 21-3442, which prohibits the unintentional killing of another human being while committing an act described in K.S.A. 8-1567. The district court applied K.S.A. 2002 Supp. 21-4711(c)(2) to score Manbeck's four prior convictions for driving while under the influence as person felonies.
K.S.A. 2002 Supp. 21-4711(c)(2) provides:
"If the current crime of conviction was committed on or after July 1, 1996, and is for involuntary manslaughter while driving under the influence of alcohol and drugs, each prior adult conviction, diversion in lieu of criminal prosecution or juvenile adjudication for: (A) An act described in K.S.A. 8-1567 and amendments thereto; or (B) a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the act described in K.S.A. 8-1567 and amendments thereto shall count as one person felony for criminal history purposes."
Manbeck's four prior DUI convictions resulted in raising his criminal history score from "F" to "A" and an increase in his sentence.
Manbeck contends it is error to apply K.S.A. 2002 Supp. 21-4711(c)(2) in a case where the defendant was convicted of driving while under the influence of alcohol or drugs. In cases of convictions of involuntary manslaughter when a violation of K.S.A. 8-1567 is involved, the question becomes whether the legislature intended that all prior convictions for driving while under the influence of alcohol or drugs should be scored as person felonies in determining the defendant's criminal history score, or should only those convictions for driving while under the influence of alcohol and drugs be scored as person felonies.
Interpretation of a statute is a question of law subject to unlimited review. State v. Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001). The intent of the legislature, where ascertainable, governs the interpretation of a statute. State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). "When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what t
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