Opinion
109,273.
03-20-2015
STATE of Kansas, Appellee, v. Linda Arleta BROWN, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and BURGESS, SJ.
MEMORANDUM OPINION
PER CURIAM.
Linda Brown was convicted in Shawnee County District Court of driving under the influence (DUI) of alcohol and drugs. She was sentenced as a third-time DUI felony offender. Brown appealed her conviction on several grounds including the argument that the amendment to K.S.A.2011 Supp. 8–1567(j)(3) that became effective on July 1, 2011, should be applied retroactively to her case. This would change the number of prior DUI's that would be counted for sentencing on this current conviction. In this court's opinion in State v. Brown, No. 109,273, 2014 WL 1707494 (Kan.App.2014) (unpublished opinion), Brown's conviction was affirmed. Brown filed a petition for review which was granted. The Supreme Court remanded this case to the Court of Appeals for reconsideration of Brown's conviction as a third time offender in light of State v. Reese, 300 Kan. 650, 333 P.3d 149 (2014). The only issue to be decided on this appeal is whether the district court erred in failing to retroactively apply K.S.A.2011 Supp. 8–1567(j)(3).
Factual and Procedural Background
At approximately 11:30 p.m. on May 7, 2011, Kansas Highway Patrol Trooper Brian Clark was driving east on a city street in Topeka when he noticed a Chevy pickup truck driving toward him westbound. That vehicle had its high beam lights on and never dimmed them as approaching Trooper Clark's vehicle. Trooper Clark turned his vehicle around and caught up with the pickup. As he did so, he saw the pickup drift toward the left and then signal and move completely into the left lane. Trooper Clark activated his emergency lights, and the vehicle stopped in the middle of the right lane. Trooper Clark approached the driver and advised her that she failed to dim her high beams, asked for her driver's license, and proof of insurance. The driver eventually produced identification of Linda Brown.
When Trooper Clark talked with Brown, he immediately noticed the odor of an alcoholic beverage coming from the vehicle. Brown's eyes were bloodshot and her speech was slurred. In addition, her movements were lethargic. Trooper Clark asked who had been drinking, and Brown reported that she had one beer at the Dugout bar. Later, Brown said she had “a headache” beverage and later said she had only half a beer. There was a passenger in the truck who was obviously intoxicated and even had difficulty sitting in the vehicle.
Trooper Clark decided to investigate further and asked Brown to step out of the vehicle. At this point, Brown was polite, cooperative, and extremely talkative. They together walked to the back of the truck. Trooper Clark smelled alcohol coming from Brown after she exited the vehicle. When Trooper Clark began field testing, Brown volunteered that she was taking Seroquel and Klonopin for some issues for which she was receiving treatment. Trooper Clark asked Brown to repeat the alphabet, which she did, although she slowed down at the end as if she was having trouble recalling the letters. He then asked her to perform the walk-and-turn test. When the trooper explained the test to Brown, she stated she had arthritis in her hips. Brown performed the test, but the trooper observed five out of eight possible clues of impairment. Trooper Clark also asked Brown to complete the one-leg-stand test, during which he saw that she swayed, used her arms for balance, and put her foot down before the trooper told her to do so. He then took Brown into custody, explaining to her that he did not believe she was capable of safely operating a vehicle. At this point, Brown's attitude changed and she became uncooperative and was yelling and crying.
Trooper Clark then took Brown to a local hospital for a blood draw to determine the level of alcohol and drugs in her system. He read and provided a copy of the DC–70 advisory to Brown while in his vehicle in the hospital parking lot. The trooper asked her multiple times to take a blood test, but Brown would not respond. Trooper Clark then escorted Brown into the hospital. She still failed to respond to the question of whether she would take the blood test. When the handcuffs were removed inside the hospital, Brown became extremely uncooperative, throwing her arms around and yelling and cursing. She would not let the nurse hold her arm to complete a blood draw.
While in the hospital, Brown mentioned she needed to use the restroom. Trooper Clark told her she could when they finished the blood test. Once she became disruptive, the trooper believed he could not safely send a nurse into the restroom with Brown and decided to take her as quickly as possible to the jail. Trooper Clark then escorted Brown out to his vehicle; again, she was not cooperative and urinated on herself. Trooper Clark went ahead and transported Brown to the Shawnee County Detention Center. Trooper Clark's dash camera recorded the entire incident except for the time they were inside the hospital.
Trooper Clark testified he had joined the Kansas Highway Patrol in 2008 and had received training in many areas, including the detection and investigation of persons driving impaired. As a trooper, Clark had arrested over 200 impaired drivers. Prior to joining the highway patrol, Trooper Clark was employed by the Atchison County Sheriff's Department and, as part of his functions there, also was involved in apprehending persons operating vehicles while driving under the influence.
Brown was charged in district court with DUI (fourth or subsequent) with a blood-alcohol concentration of .08 or more or, alternatively, DUI and/or drugs to a degree that rendered her incapable of safely driving a vehicle. The complaint also asserted that Brown previously had been convicted of DUI in December 1990, June 1996, and August 1996. She also was charged with violating of K.S.A. 8–1725(a) for failing to dim her vehicle headlights when approaching an oncoming vehicle.
Brown's case proceeded to a jury trial during which the evidence described above was presented. After hearing the evidence and instructions, the jury retired for deliberations. The jury ultimately returned a verdict convicting Brown of the alternative charge of DUI of a combination of alcohol and any drug(s) that rendered her incapable of safely driving a vehicle. She also was found guilty of failing to dim her headlights.
At sentencing, the district court was provided with various municipal court records as well as the presentence investigation report. Upon review of these records, the district court found the State had only proven Brown had two prior DUI convictions. For a third DUI conviction, the district court imposed a 12–month jail term but ordered that Brown be placed on probation after serving 90 days. After serving 48 hours in jail, the remaining jail term was to be served on house arrest. The district court also imposed a fine of $1,500. Brown timely appealed.
Analysis
Did the district court err in failing to apply the 2011 amendment in K.S.A.2012 Supp. 8–1567(i)(I) retroactively so that Brown's conviction would be treated as her first conviction for DUI?
The only issue to be addressed on remand is Brown's contention that the district court erred in failing to sentence Brown under K.S .A.2011 Supp. 8–1567(j)(3), which amended the look-back provision of the DUI sentencing statutes that were in effect at the time of her 2012 sentencing rather than the version of the statute in effect at the time of her 2010 crime. See K.S.A.2010 Supp. 8–1567(o)(3). If the district court had applied the amended look-back provision, Brown's sentence would have been based on first-time offender status rather than a third-time DUI conviction.
Brown failed to object to being treated as a third-time DUI offender during her sentencing hearing and never requested the district court apply the new amendment to the sentencing scheme before or during her sentencing hearing. An appellate court typically will not address issues raised for the first time on appeal. See State v. Cheffen, 297 Kan. 689, 697–98, 303 P.3d 1261 (2013). Although Brown acknowledges not raising the issue before the trial court, she asks this court to address this issue because it only involves a question of law and is necessary to prevent the denial of a fundamental right. Brown fails to cite any argument to any case on point to support her argument that she would be denied her fundamental right to due process if the statute is not applied retroactively in her case. However, this court has previously addressed this issue for the first time on appeal due to the fact that this issue involves only a legal question and this court elected to address this issue.
The statute in effect when Brown committed the offense was K.S.A.2010 Supp. 8–1567(o)(3). Under that version of the statute, any prior DUI conviction occurring during a person's lifetime was considered in determining the sentence imposed for first, second, third, fourth, or subsequent offender. When the district court sentenced Brown, however, K.S.A.2012 Supp. 8–1567(i)(I) was in effect. The 2012 version of the statute only considered prior DUI convictions occurring after July 1, 2001, which is the same as K.S.A.2011 Supp. 8–1567(j)(3). See L.2011, ch. 105, sec. 19.
This court noted that another panel of our court rejected a similar argument in State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012). In Reese, the defendant was arrested for a DUI on July 3, 2009, but he was not convicted of the offense until June 6, 2011. His sentencing was held on August 10, 2011. A presentence investigation report identified four prior DUI convictions, all prior to July 1, 2001. The district court sentenced the defendant as a fourth or subsequent DUI offender.
On appeal, the Reese court found there was nothing in the statutory language to suggest the legislature intended the provision to apply to all DUI offenders, regardless of the date of the offense, who were sentenced after the effective date of the provision. 48 Kan.App.2d 89–90. It also noted provisions in the same bill did provide for retroactive application of some other DUI-related provisions, confirming the legislature knew how to make this provision retroactive if that was its intent. The Reese court found the new look-back provision did alter substantive rights because it modified the severity of punishment for a DUI conviction. 48 Kan.App.2d at 90. Accordingly, the Reese court held the amendment could only be applied prospectively to offenses occurring on or after July 1, 2011, the effective date of the amendment. 48 Kan.App.2d at 90–91. Numerous panels of this court had found the analysis in Reese persuasive and rejected the same arguments raised here by Brown. Accordingly, this court affirmed the district court's decision to sentence Brown as a third time offender.
On August 29, 2014, our Supreme Court reversed this court's decision in Reese. In its analysis, the court examined the nature of the DUI statutory scheme, its historical development, and how prior offenses have historically been handled. Reese, 300 Kan. at 654–56. The court also examined the statutory language on K .S.A.2011 Supp. 8–1567(j). 300 Kan. at 657–58. Ultimately our Supreme Court found that “the plain statutory language and the unique nature of the DUI sentencing scheme dictate that the number of prior DUI convictions applicable to the current DUI sentence is to be calculated at the time of the sentencing on the current conviction.” 300 Kan. at 651. Our Supreme Court went on to hold that the provisions of K.S.A.2011 Supp. 8–1567(j)(3) apply to all persons who are sentenced for DUI on or after July 1, 2011, the effective date of the amended statute, even if the person committed the DUI before that date. 300 Kan. at 659.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1026 (2011). The Kansas Supreme Court's decision in Reese controls the outcome of Brown's appeal. K.S.A.2011 Supp. 8–1567(j)(3) provides that the sentencing court is to take into account only those prior DUI convictions that occurred on or after July 1, 2001, and determine at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence. Reese, 300 Kan. at 659. Because Brown's prior DUI convictions occurred before July 1, 2001, the district court should have sentenced Brown as a first time offender.
Pursuant to Reese, the sentencing entered in Brown's case is reversed and the case is remanded to the district court for sentencing wherein Brown will be sentenced as a first time offender.
Reversed and remanded with directions.