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State v. Chamberlain9/30/2005
Richard H. Chamberlain petitions this court for review of the Court of Appeals' decision in State v. Chamberlain, No. 91,007, unpublished opinion filed September 3, 2004. The Court of Appeals affirmed his conviction and sentence for a third driving under the influence (DUI) offense, an unclassified nonperson felony under K.S.A. 8-1567(f) and (l)(3). He contends that the use of his prior diversion agreements to enhance his sentence under 8-1567 violated the Ex Post Facto and Contract Clauses of the United States Constitution. We granted the defendant's petition for review under K.S.A. 20-3018(b), and we affirm his conviction and sentence.
On March 22, 2002, the defendant was charged with DUI after two prior convictions for conduct committed on March 1, 2002. The defendant had previously entered into two DUI diversion agreements on February 27, 1986, and September 11, 2001.
The defendant moved to dismiss or, in the alternative, deny the State's use of a prior diversion agreement to enhance his sentence or classify his crime. He argued that the 2001 amendment to 8-1567, see L. 2001, ch. 200, sec. 14, which classified his 1986 diversion as a prior conviction, was an unconstitutional violation of the Ex Post Facto and Contract Clauses of the United States Constitution. See U.S. Const. Art. I, § § 9, 10. The trial court denied his motion and on stipulated facts found the defendant guilty of DUI in violation of K.S.A. 8-1567. The defendant was sentenced to 12 months of probation with an underlying prison term of 12 months, commencing with 7 days in custody followed by 83 days of house arrest.
In addressing the defendant's ex post facto sentencing argument, the Court of Appeals, like the trial court, relied upon City of Norton v. Hurt, 275 Kan. 521, 66 P.3d 870 (2003), wherein this court rejected this same argument based upon an enhanced sentence after a second DUI municipal offense. In rejecting his Contract Clause argument, the Court of Appeals found that there were no express limitations on future use and no provisions incorporating current statutes into the 1986 diversion agreement, making it impossible to determine the extent to which the defendant relied on such limitations as a factor in entering into the diversion agreement. The Court of Appeals then concluded that even if the 1986 statute, K.S.A. 1986 Supp. 8-1567(j)(3), would be read into the diversion agreement, the defendant still failed to show that his contract rights were impaired because the DUI statute was still based upon his current conviction, not past convictions, and the law placed no limitations on any prior diversion agreement.
Diversions Under Kansas Law
Resolution of the constitutional issues raised in this case first requires a brief review of diversions under Kansas law. In Kansas, after a complaint charging a defendant with the commission of a crime has been filed but before a conviction, the State may propose a diversion agreement. K.S.A. 22-2907(1); see K.S.A. 12-4414(a). A diversion agreement is "the specification of formal terms and conditions which a defendant must fulfill in order to have the charges against him or her dismissed." K.S.A. 22-2906(4); see K.S.A. 12-4413(d). "No defendant shall be required to enter any plea to a criminal charge as a condition for diversion." K.S.A. 22-2910; see K.S.A. 12-4417. " ntering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining." K.S.A. 2004 Supp. 8-1567(p). Diversion is, therefore, a means to avoid a judgment of criminal guilt. Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001); see K.S.A. 22-2906(3) and (4); K.S.A. 12-4413(c) and
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