Opinion
No. 108184.
2015-04-28
STATE of Kansas, Appellee, v. Phillip M. MESSER, Appellant.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.Edward C. Gillette, Michael S. Mogenson, and Grant M. Reichert, of Gillette Law Firm, P.A., of Mission, for appellant.Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Edward C. Gillette, Michael S. Mogenson, and Grant M. Reichert, of Gillette Law Firm, P.A., of Mission, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
The district court sentenced Phillip M. Messer for felony driving under the influence for the third time, but he argued at the district court and on appeal that the district court erred. Messer said that the district court's finding that he had committed three DUIs under the DUI statute was erroneous because one of the offenses the court counted occurred before 2001. According to Messer, the district court should not have counted the DUI that he incurred before 2001 because K.S.A.2011 Supp. 8–1567(j)(3)—which was in effect at the time he was sentenced-instructs the court to count only DUIs incurred on or after July 1, 2001. The district court counted all of Messer's DUI convictions, however, under the law that was in effect at the time of his arrest. See K.S.A.2010 Supp. 8–1567(o)(3). As a result, the district court concluded that Messer was guilty of felony driving under the influence for the third time instead of misdemeanor driving under the influence for the second time. Messer appealed to this court, but we affirmed the district court's decision.
Messer petitioned the Kansas Supreme Court for review, and in 2014, it granted his petition on the issue of whether his pre–2001 DUI should have been used to enhance his sentence in light of its decision in State v. Reese, 300 Kan. 650, Syl., 333 P.3d 149 (2014). Reese explained that the district court should not count pre-July 1, 2001 DUIs when determining the sentence for an offender sentenced on or after July 1, 2011; therefore, we vacate Messer's sentence and remand his case to the district court for resentencing.
Factual and Procedural Background
After Messer made an illegal U-turn in November 2010, police stopped him and asked him to perform field-sobriety tests. Messer performed poorly, which led the officers to suspect that he was driving under the influence of alcohol. Messer then refused to submit to a preliminary breath test, and the police arrested him. At the station, he took a breath test and registered a breath-alcohol concentration of .147, in excess of the legal limit of .08. See K.S.A.2010 Supp. 8–1567(a)(1)–(2).
Messer requested additional testing for the presence of alcohol. The police said they would not take him to get another test because they planned to release him but that he could get a second test once he was released. Messer argued at the district court that the State denied him a reasonable opportunity to obtain additional testing because it did not release him until 42 minutes after he requested it. Accordingly, he moved to suppress the results of the breath-alcohol test. The district court denied Messer's motion to suppress, and this court affirmed on appeal, finding that when an offender is released within 42 minutes of making a request for additional testing and within 2 hours of the initial arrest, his right to obtain additional testing is not violated. 49 Kan.App.2d 313, 318–21, 307 P.3d 255 (2013), vacated in part on other grounds November 14, 2014.
Messer also argued that he should be sentenced according to the July 2011 amendments to K.S.A. 8–1567. Under the 2011 amendments, only DUI convictions obtained on or after July 1, 2001, could be used to enhance an offender's sentence for a subsequent DUI offense. See K.S.A.2011 Supp. 8–1567(j)(3). Because Messer had two other DUI offenses on his record but only one since 2001, applying the amendment would have meant he would be sentenced for a second DUI, which is a misdemeanor, instead of a third DUI, which is a felony.
The State argued that the amendment should not apply to Messer, however, because it was not the law at the time Messer committed the offense at issue in this case. In November 2010, when the police arrested Messer after his illegal U-turn, Kansas law required the courts to count all DUI convictions across a person's lifetime for the purposes of determining a DUI sentence. See K.S.A.2010 Supp. 8–1567(o)(3). Because the law in effect at the time an offense is committed generally controls the penalties associated with the offense, the district court refused to apply the 2011 amendment to K .S.A. 8–1567, and this court affirmed on appeal. 49 Kan.App.2d at 321–24; see State v. Williams, 291 Kan. 554, Syl. ¶ 2, 244 P.3d 667 (2010).
Messer petitioned the Kansas Supreme Court for review. In 2014, the Kansas Supreme Court decided State v. Reese and clarified that offenders who were sentenced on or after July 1, 2011, should have been sentenced in accordance with K.S.A.2011 Supp. 8–1567(j)(3), regardless of when they committed the offense for which they were being sentenced. 300 Kan. 650, Syl. Since Messer argued that the district court did not apply K.S.A.2011 Supp. 8–1567(j)(3) to his case even though it sentenced him after July 1, 2011, the Kansas Supreme Court granted his petition for review on the sentencing issue only. It then remanded his case to this court for reconsideration.
On remand, we must therefore determine whether K.S.A.2011 Supp. 8–1567(j)(3) and Reese impact Messer's sentence.
Analysis
Messer argues that the district court erred by not applying K.S.A.2011 Supp. 8–1567(j)(3) to his case and by sentencing him under K.S .A.2010 Supp. 8–1567(o)(3) instead. The dispute at the district court and during his initial appeal was whether to apply the statute in effect at the time he committed the offense of driving under the influence of alcohol (the 2010 law) or the statute in effect at the time he was sentenced (the 2011 law). Much of the debate focused on whether the 2011 amendment was meant to apply retroactively to crimes committed before it was enacted.
But the Kansas Supreme Court ended this debate with Reese, concluding that the 2011 amendment in K.S.A. 8–1567(j)(3) applied based on when the offender was sentenced, not when he or she committed the crime. 300 Kan. 650, Syl. It explained that because the language of subsection (j)(3) clearly intended it to apply at the sentencing phase of trial, it applied to all offenders sentenced on or after July 1, 2011. Thus, Reese's sentence should not have been enhanced by DUIs he committed before July 1, 2001, because he was sentenced after K.S.A.2011 Supp. 8–1567(j)(3) took effect on July 1, 2011. 300 Kan. at –––, 333 P.3d at 152–54. The Kansas Supreme Court therefore held that the district court had erred, and it vacated Reese's sentence and remanded his case to the district court so that Reese could be resentenced in accordance with K.S.A.2011 Supp. 8–1567(j)(3). 300 Kan. at –––, 333 P.3d at 154.
The district court likewise erred in sentencing Messer. Though he drove under the influence in November 2010, he was sentenced in May 2012. Because Messer was sentenced after the legislature enacted K.S.A.2011 Supp. 8–1567(j)(3), the district court should only have counted two of Messer's DUIs-the one at issue in this case, and the only other one he incurred after 2001. Since the district court counted a DUI from 2000 when it sentenced Messer for driving under the influence for the third time, we vacate his sentence and remand his case to the district court so that he may be resentenced in compliance with K.S.A.2011 Supp. 8–1567(j)(3).