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State v. Manbeck1/30/2004
This case comes before us on petition for review by the State of Kansas from a Court of Appeals decision which vacated Scott E. Manbeck's sentence for involuntary manslaughter after he was convicted of driving under the influence of alcohol or drugs.
Manbeck pled guilty to one count of involuntary manslaughter as a result of driving under the influence of alcohol or drugs. Manbeck had four prior DUI convictions. Pursuant to K.S.A. 2002 Supp. 21-4711(c)(2), the presentence investigation report gave Manbeck a criminal history score which included his four previous DUI convictions as person felonies. The significance of this scoring is that it raised his criminal history score from "F" to "A."
Manbeck objected to his criminal history score, but the sentencing court overruled his objection and sentenced him to 162 months' imprisonment, using a criminal history score of "A."
The Court of Appeals vacated Manbeck's sentence and remanded the matter to the district court for resentencing using a criminal history of "F." State v. Manbeck, 31 Kan. App. 2d 618, 621, 69 P.3d 636 (2003). This court granted the State's petition for review.
The State argues that the Court of Appeals erroneously interpreted the provisions of K.S.A. 2002 Supp. 21-4711(c)(2). Resolution of this question involves the interpretation of a statute, over which this court has unlimited review. State v. Gordon, 275 Kan. 393, 402, 66 P.3d 903 (2003).
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."
(Emphasis added.)
The Court of Appeals concluded that the phrase "driving while under the influence of alcohol and drugs" applied to a defendant's prior DUI convictions that were for driving while under the influence of both alcohol and drugs. Manbeck, 31 Kan. App. 2d at 620-21. The Court of Appeals held that only those prior DUI convictions for driving under the influence of both alcohol and drugs could be counted as person felonies for the purposes of sentencing a defendant for involuntary manslaughter. 31 Kan. App. 2d at 620-21.
Judge Johnson of the Court of Appeals wrote a concurring opinion in which he interpreted the phrase " f the current crime of conviction . . . is for involuntary manslaughter while driving under the influence of alcohol and drugs" as a condition precedent to the application of K.S.A. 2002 Supp. 21-4711(c)(2). Under Judge Johnson's reasoning, a defendant must have committed voluntary manslaughter while under the influence of both alcohol and drugs for the sentencing provisions to apply. The convictions subject to Judge Johnson's interpretation are limited to those that violate K.S.A. 2002 Supp. 21-3442, involuntary manslaughter committed while driving under the influence of alcohol or drugs.
The majority opinion applies the same phrase to the prior DUI convictions rather than the manslaughter conviction. If a prior DUI conviction is not for driving while under the influence of both alcohol and drugs, then it cannot be used to modify the criminal history score for involuntary manslaughter. Under the majority interpretation, the provisions of K.S.A.
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