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State v. Chamberlain9/3/2004
Richard H. Chamberlain appeals from his bench trial conviction of driving under the influence (DUI) and from the sentence imposed for that offense. On appeal, Chamberlain asserts a violation of the Ex Post Facto Clauses of the United States Constitution, Art. 1, §§ 9, 10. In addition, he contends that the use of a prior diversion to establish his current sentence breached the previous diversion agreement. We disagree and affirm.
On May 13, 2002, the State filed a complaint against Chamberlain, alleging that he had unlawfully operated a vehicle under the influence of alcohol on March 1, 2002. The complaint charged Chamberlain with a felony under K.S.A. 8-1567, based on the allegation that he had two previous convictions for DUI.
The record indicates that Chamberlain's criminal history included no convictions or adjudications. Nevertheless, he was a party to two diversion agreements, one dating back to February 27, 1986, and another on September 11, 2001. At the time of the 1986 agreement and until 2001, 8-1567 provided that only those 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 DUI statute. See K.S.A.1986 Supp. 8-1567(j)(3); recodified as K.S.A. 8-1567(k)(3) (Furse 1991).
As amended in 2001, K.S.A. 8-1567(1)(3) 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." See L.2001, ch. 200, sec. 14; K.S.A.2003 Supp. 8-1567(m)(3).
Chamberlain moved to dismiss or in the alternative to deny the State's use of his previous diversion agreements to enhance his sentence. Following a bench trial with stipulated facts, the district court found Chamberlain guilty and denied his motion. Chamberlain was sentenced to 1 year of imprisonment, with probation granted for 12 months, commencing with 7 days in custody and followed by 83 days of house arrest.
Chamberlain argues that the district court's use of his prior diversion agreements to sentence him as a felon under K.S.A. 8-1567 violated the Ex Post Facto Clause. "Interpretation of a statute is a question of law, and an appellate court's review is unlimited. An appellate court is not bound by the district court's interpretation of a statute. [Citation omitted.]" State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
According to the United States Supreme Court, "two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. [Citations omitted.]" Weaver v. Graham, 450 U.S. 24, 29, 67 L.Ed.2d 17, 101 S.Ct. 960 (1981). The question we must ask is whether the 2001 amendment increased the punishment attached to Chamberlain's 1986 diversion agreement.
**2 Chamberlain contends that his diversion agreement from 1986 was a contract. Based upon the then existing version of 8-1567, the diversion agreement was deemed a conviction only in the event of a second conviction for DUI and, even then, only for a limited 5-year period from the second DUI. He further contends that the 2001 amendment attempted to retrospectively criminalize the making of a lawful contract by treating his diversion agreement as a conviction. Not only does Chamberlain maintain that the 2001 amendment was retrospective in nature, he also contends that he was disadvantaged by the amendment because he had already fully performed the 1986 diversion agreement and, as such, his criminal history record should reflect that he had
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