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State v. Sedillos6/3/2005
Phillip J. Sedillos petitions this court for review of the Court of Appeals' decision affirming his conviction and sentence for a third offense of driving under the influence (DUI), an unclassified person felony, in State v. Sedillos, 33 Kan. App. 2d 141, 98 P.3d 651 (2004). He argues the use of his prior convictions under K.S.A. 2002 Supp. 8-1567(l)(3) was erroneous and that the classification of his current DUI as a felony third offense violated due process. We affirm.
In February 2003, the defendant was charged with his third DUI offense in violation of K.S.A. 2002 Supp. 8-1567 for conduct committed on October 4, 2002. The defendant had a prior conviction for DUI in July 1997 and was granted a diversion for DUI in January 1996.
Under K.S.A. 2002 Supp. 8-1567(l)(3), now K.S.A. 2004 Supp. 8-1567(m)(3), any DUI conviction or entry into a diversion agreement "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." Under an earlier version of the statute, only DUI convictions or diversion agreements, classified as convictions, "occurring in the immediately preceding five years, including prior to the effect date of this act, shall be taken into account" for purposes of determining the enhanced sentence of the subsequent offense under the statute. See K.S.A. 2000 Supp. 8-1567(k)(3).
The defendant filed a motion to strike his lifetime prior convictions, arguing that application of the rules of statutory construction to K.S.A. 2002 Supp. 8-1567(l)(3) barred the use of his prior convictions to enhance his crime and penalty. He reasoned that the legislature's omission of "including prior to the effective date of this act" language in the July 1, 2001, amendment to K.S.A. 2000 Supp. 8-1567(k)(3), see L. 2001, ch. 200, sec. 14, barred the use of his prior DUI convictions that had occurred prior to July 1, 2001.
The district court denied the motion, finding that the statute as written applied prospectively rather than retroactively. It reasoned that the changed language was effective on July 1, 2001, well before the defendant's present DUI offense on October 4, 2002. The amendment in K.S.A. 2002 Supp. 8-1567(l)(3) provided that all DUI convictions or DUI diversion agreements occurring during a person's lifetime would be used in determining the enhancement penalty of the present DUI offense. Thus, the defendant was not entitled to any retroactive application.
The defendant waived his right to a jury trial, and the case was submitted for a bench trial on stipulated facts. The district court found the defendant guilty of DUI, a third offense, in violation of K.S.A. 2002 Supp. 8-1567(a) and (f). On this felony offense, he was fined $1,500 and sentenced to 1 year in jail, with work release granted after 48 hours had been served.
Before the Court of Appeals, the defendant argued that application of the statute violated the Due Process and Ex Post Facto Clauses of the United States Constitution. See U.S. Const. Amend. V and XIV; U.S. Const. Art. I, § § 9, 10. He argued that the district court erred by using his two prior DUI convictions to enhance his DUI offense when K.S.A. 2002 Supp. 8-1567 does not contain a retroactive provision relating to prior convictions. The Court of Appeals rejected these arguments, as discussed below, and affirmed the trial court. See Sedillos, 33 Kan. App. 2d at 143-47. We granted the defendant's petition for review of these issues pursuant to K.S.A. 20-3018(b).
Statutory Interpretation of K.S.A. 2002 Supp. 8-1567(l)(3).
The defendant argues the Court of Appeals violated several rules o
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