Opinion
No. 107,464.
2015-02-19
STATE of Kansas, Appellee, v. David Dwight THACKER, Appellant.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.Darrell Smith, of Olathe, for appellant.Stephen J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Darrell Smith, of Olathe, for appellant. Stephen J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in State v. Thacker, No. 107,464, 2012 WL 3136812 (Kan.App.2012) (unpublished opinion), filed on July 27, 2012, David Dwight Thacker filed a petition for review. On October 20, 2014, our Supreme Court granted the petition for review and remanded this case to the Court of Appeals for reconsideration of Thacker's challenge to his sentence in light of State v. Reese, 300 Kan. ––––, 333 P.3d 149 (2014). The only issue on appeal is whether the district court erred in failing to retroactively apply K.S.A.2011 Supp. 8–1567(j)(3) in calculating Thacker's sentence following his conviction of driving under the influence of alcohol (DUI).
We will briefly review the facts. On September 3, 2010, Thacker was arrested for DUI. At the time of his crime, K.S.A.2010 Supp. 8–1567(o)(3) provided that the “look-back” period for counting prior DUI convictions included the offender's lifetime. Thacker does not dispute that he had three prior DUI convictions in 1989, 1999, and 2000, and this case was his fourth lifetime DUI. However, before Thacker was sentenced on January 20, 2012, our legislature amended the look-back provision in K.S.A.2011 Supp. 8–1567(j)(3) to provide that “only convictions occurring on or after July 1, 2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” L.2011, ch. 105, sec. 19.
Thacker argued in district court that because each of his three prior convictions occurred before July 1, 2001, he should be sentenced as a first-time offender under the amended DUI law. The district court rejected Thacker's argument and reasoned that the legislature did not expressly indicate any intent that the amendment apply retroactively to crimes that occurred prior to July 1, 2011, the effective date of the amendment. The district court determined that it should apply the general rule that a person convicted of a crime is sentenced based on the law in effect when the crime was committed. Thus, the district court sentenced Thacker for a fourth DUI. Thacker timely appealed his sentence.
On appeal, this court agreed that Thacker should be sentenced as a fourth time offender. This court found that the legislature did not clearly indicate that it intended the 2011 amendment to K.S.A. 8–1567(j)(3) to apply retroactively. Thacker, 2012 WL 3136812, at *1. This court reasoned that a statutory amendment modifying the severity of punishment for a conviction alters substantive rights, and therefore only operates prospectively. 2012 WL 3136812, at *2. This court agreed with the district court that it is a fundamental rule in Kansas law that a defendant is sentenced based on the law in effect when the crime was committed, citing State v. Williams, 294 Kan. 554, 557, 244 P.3d 667 (2010). Because Thacker committed his DUI prior to July 1, 2011, this court concluded that the 2011 amendment to K.S.A. 8–1567(j)(3) did not apply to determine his sentence. 2012 WL 3136812, at *2.
However, on August 29, 2014, our Supreme Court issued its decision in State v. Reese. In Reese, the defendant was arrested for DUI on July 3.2009, but he was not convicted of the offense until June 6, 2011. His sentencing was scheduled for August 10, 2011, and a presentence investigation report identified four prior DUI convictions, all prior to July 1, 2001. 333 P.3d at 150. The district court sentenced the defendant as a fourth or subsequent DUI offender, and this court affirmed the defendant's enhanced sentence. State v. Reese, 48 Kan.App.2d 87, 91, 283 P.3d 233 (2012).
On a petition for review, our Supreme Court noted that K.S.A.2011 Supp. 8–1567(j)(3) was amended between the time the defendant committed his DUI and the time he was sentenced. The court recognized that the question presented “is which statute applied to [the defendant's] sentencing, the one in effect when he was sentenced or the one in effect when he committed the acts giving rise to his conviction.” 333 P.3d at 151. In its analysis, the court examined the nature of the DUI statutory scheme, its historical development, and how prior offenses have historically been handled. The court also examined the statutory language employed in K.S.A.2011 Supp. 8–1567(j). Ultimately, the 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 sentencing on the current conviction.” 333 P.3d at 150. The 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. 333 P.3d at 154.
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 1027 (2011), rev. denied 294 Kan. 946 (2012). The Kansas Supreme Court's decision in Reese controls the outcome of Thacker'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 enhancement. Reese, 333 P.3d at 154. Thus, we conclude that the district court erred in sentencing Thacker as a fourth time DUI offender. Because each of his three prior DUI convictions occurred before July 1, 2001, he should be resentenced as a first-time offender under the amended DUI law.
Reversed and remanded with directions.