State v. Smith

PER CURIAM:

Appeal from Saline District Court; Rene S. Young, Judge.
Roger D. Struble, of Blackwell, Blackwell & Struble, LLC, of Salina, for appellant. Jeffery S. Adam, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.

PER CURIAM:

Scott Duane Smith appeals his sentence for one count of felony driving under the influence of alcohol (DUI), fourth offense. He argues that the district court erred in failing to retroactively apply the look-back provision of K.S.A.2011 Supp. 8–1567(j)(3), which provides that only convictions occurring on or after July 1, 2001, are to be considered for purposes of determining whether a DUI conviction is a first, second, third, fourth, or subsequent conviction. For the reasons set forth herein, we affirm the decision of the district court.

On November 25, 2010, Smith was stopped and arrested for DUI in violation of K.S.A.2010 Supp. 8–1567. On May 23, 2011, Smith pled guilty to the DUI charge. Before sentencing, Smith filed two motions, arguing that the district court should apply the new look-back provision of K.S.A.2011 Supp. 8–1567(j)(3), which went into effect on July 1, 2011, and exclude for sentencing purposes two prior DUI convictions from 1999 and 2000. With one prior DUI conviction from 2002, which was within the scope of the new look-back provision, Smith contended that he should be sentenced for misdemeanor DUI, second offense. Smith was sentenced on September 29, 2011. The district court rejected Smith's arguments, finding that the new look-back provision—in effect at sentencing but not on the date of Smith's present DUI offense—did not apply retroactively. Accordingly, it sentenced Smith based on the penalties applicable to felony DUI, fourth or subsequent offense. Smith timely appealed.

On appeal, Smith argues that the new look-back provision plainly and unambiguously applies to all DUI sentencing proceedings occurring after July 1, 2011, and thus should have been applied in his case, notwithstanding that the DUI offense for which he was sentenced occurred before the effective date of the provision. He also argues that even if this court resorts to statutory construction, the provision should have been retroactively applied because criminal statutes are strictly construed against the State and because it was merely a procedural rather than substantive amendment.

A panel of this court recently rejected the same arguments in State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012), petition for rev. filed September 4, 2012. First, the Reese court noted the fundamental rule of criminal procedure in Kansas that a defendant is sentenced based on the law in effect when the crime was committed. And more generally, it noted the fundamental rule that a statute operates prospectively unless either the language clearly indicates that the legislature intended the statute to apply retroactively or the change is procedural only and does not prejudicially affect the substantive rights of the parties. Reese, 48 Kan.App.2d at 89 (citing State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 [2010] ).

Applying these fundamental rules to K.S.A.2011 Supp. 8–1567(j)(3), the Reese court found that there was nothing in the statutory language to suggest that the legislature intended the provision to apply to all DUI offenders sentenced after the effective date of the provision, regardless of when the DUI occurred. It noted that the legislature had explicitly provided for retroactive application of some other DUI-related provisions within the same legislation containing the new look-back provision, thus indicating that the legislature did not intend retroactivity where not specifically provided. Furthermore, it found that the new look-back provision altered substantive rights because it modified the severity of punishment for a DUI conviction. 48 Kan.App.2d at 90 (citing Williams, 291 Kan. at 557). Thus, it concluded that the district court did not err in refusing to apply the look-back provision of K.S.A.2011 Supp. 8–1567(j)(3) in the defendant's case. Reese, 48 Kan.App.2d at 91.

Reese is well reasoned and controls this case. Accordingly, we affirm the district court's decision to sentence Smith under the penalties applicable to DUI, fourth offense.

Affirmed.