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City of Norton v. Hurt4/18/2003
Affirmed.
Jason Hurt appeals his sentence for driving under the influence (DUI), claiming the enhanced sentencing provisions of Kansas law relating to DUI violate the constitutional prohibition against ex post facto laws.
Hurt was arrested for DUI in August 2001 inside the city limits of Norton. Hurt was charged with a second offense DUI because he had a previous DUI diversion in 1995.
Hurt pled guilty in municipal court to the 2001 DUI but moved to be sentenced as a first offender, which was denied.
Hurt appealed to the district court, arguing that it was constitutionally impermissible to apply the enhanced sentencing provisions of the city ordinance. The district court upheld his sentence. Hurt appealed, and this court transferred the appeal pursuant to K.S.A. 20-3018(c).
Statutory and Ordinance Provisions
The Kansas Legislature in 2001 amended the DUI statute, K.S.A. 8-1567. Before the effective date of that amendment, July 1, 2001, K.S.A. 2000 Supp. 8-1567(k)(3) contained a provision which stated that for sentencing purposes, any conviction over 5 years old would not be considered for charging or sentencing purposes if the same individual was later charged with DUI. These provisions are referred to as "decay" provisions in the law.
The 2001 amendment to 8-1567(k)(3) removed the decay period. The new language stated that "any convictions 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." See K.S.A. 2002 Supp. 8-1567(l)(3).
Following the lead of the legislature, the City of Norton amended its city ordinance No. 1496 to conform with the version of 8-1567 effective July 1, 2001.
Hurt's Argument
Hurt argues that sentencing him as a second offender violates the prohibitions of the United States Constitution against ex post facto laws.
Hurt contends that once the 5-year period ran on his first DUI, a diversion, he no longer had a "conviction" on his record and he has a vested right in that status that cannot be changed by a subsequent act of the legislature or another governmental subdivision.
Two elements are required for a law to constitute an ex post facto law. The law must apply to events that occurred before its enactment, and the law must alter the definition of criminal conduct or increase the penalty for criminal conduct. Anderson v. Bruce, 274 Kan. , , 50 P.3d 1 (2002).
States generally are prohibited from enacting an ex post facto law. U.S. Const. art. 1, § 10, cl. 1.
A function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission. Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990).
In Anderson v. Bruce, this court validated a 1983 amendment to K.S.A. 21-4608 which excluded time spent on parole from prison calculations like parole eligibility, conditional release, and maximum dates after the commission of a new offense. 274 Kan. at ___. Anderson attacked the amendment as an ex post facto law, claiming that the amendment enhanced the punishment for a crime he committed in 1979 when the time spent on parole was included in the prison calculations. Anderson had been paroled on his 1979 sentence in 1984 but re-offended in 1985. Emphasizing the fact that Anderson's new offense occurred 2 years after the statute was modified, the Anderson court stated:
"Anderson had adequate notice that commission of a new offense would result in the denial of credit for time s
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