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State v. Sedillos10/8/2004
Phillip Sedillos appeals from a bench trial conviction of driving under the influence (DUI) of alcohol in violation of K.S.A.2002 Supp. 8-1567. First, Sedillos argues that because he had previously been informed that his prior DUI convictions would decay after 5 years, the classification of his current DUI conviction as a third offense and felony violates the Ex Post Facto and Due Process Clauses of the United States Constitution. We find that Sedillos' constitutional arguments fail. Finally, Sedillos argues that the trial court erred in using his two prior DUI convictions to enhance his current DUI conviction to a felony when K.S.A.2002 Supp. 8-1567(l )(3) does not include a retroactive provision pertaining to the prior convictions. We again disagree. Because the plain language of K.S.A.2003 Supp. 8-1567(m)(3) reveals that any prior DUI convictions occurring during a defendant's lifetime shall be used to enhance the sentence for the current DUI offense, it is unnecessary to include an additional retroactive provision. Therefore, Sedillos' argument fails. Accordingly, we affirm the trial court's ruling.
In February 2003, the State charged Sedillos with his third DUI offense, an unclassified person felony, in violation of K.S.A.2002 Supp. 8-1567 for conduct that occurred in October 2002. Sedillos' prior convictions came from a DUI diversion granted in January 1996 and also a DUI conviction in July 1997.
Under K.S.A.2002 Supp. 8-1567(l )(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, *653 second, third, fourth or subsequent offender." Under an earlier version of the statute, however, only DUI convictions or diversion agreements "occurring in the immediately preceding five years, including prior to the effective date of this act, shall be taken into account" for purposes of determining the level of offense under the statute. (Emphasis added.) K.S.A.2000 Supp. 8-1567(k)(3).
Sedillos moved to strike his lifetime prior convictions arguing that the legislature's omission of the phrase "including prior to the effective date of this act" from the July 1, 2001, amendment to K.S.A. 8-1567(k)(3) bars the use of prior DUI convictions that occurred before the amendment. The trial court denied the motion.
Sedillos waived his right to a jury trial and submitted his case to the trial court on stipulated facts. The trial court found Sedillos guilty of DUI, a third offense, in violation of K.S.A. 8-1567. He was sentenced to 1 year in jail with work release granted after 48 hours had been served and fined $1,500.
Ex Post Facto and Due Process
First, Sedillos argues that the use of his prior DUI convictions to classify his current conviction as a third offense and, therefore, a felony violates both the Ex Post Facto and Due Process Clauses of the United States Constitution. Sedillos failed to raise this argument at the trial court level. Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Williams, 275 Kan. 284, 64 P.3d 353 (2003). Nevertheless, when it is necessary to determine the merits of the action or where the issues cannot be intelligently decided without doing so, the constitutionality of a statute should be decided, even if the parties failed to raise the constitutional question, failed to plead the question, or failed to present the question to the trial court. State v. Gordon, 275 Kan. 393, 408, 66 P.3d 903 (2003).
Sedillos' arguments require us to interpret K.S.A.2002 Supp. 8-1567. "Interpretation of a statute is a question of law, and an appellate court's review is unlimited. An appellate court is not boun
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