Appeal from Johnson District Court, Thomas H. Bornholdt, 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.
The district court sentenced Darren Lee Prince as a fourth-time DUI offender because he had three prior DUI convictions in Missouri. Prince argued before the district court and on appeal that his Missouri convictions—all of which arose before July 1, 2001—should not have been considered. Prince based his argument on K.S.A.2011 Supp. 8–1567(j)(3), which was in effect when he was sentenced and instructs the court to count as prior offenses only DUIs committed on or after July 1, 2001.
The district court counted all of Prince's DUI convictions, however, under the law that was in effect in February 2011, the time he committed his new DUI offense. That statute, K.S.A.2010 Supp. 8–1567(o)(3), provided that all prior DUIs would be counted in determining whether the offense was a first, second, third, fourth, or subsequent DUI offense. We affirmed the district court's judgment in State v. Prince, No. 108,860, 2014 WL 113434 (Kan.App.2014) (unpublished opinion), rev. granted January 20, 2015.
Prince petitioned the Kansas Supreme Court for review, and on January 20, 2015, it granted his petition on the sole issue of whether Prince's pre–2001 DUIs should have been counted for sentencing purposes. We had relied on State v. Reese, 48 Kan.App.2d 87, 88–91, 283 P.3d 233 (2012), rev'd 300 Kan. 650, 333 P.3d 149 (2014). But the Kansas Supreme Court reversed that decision in August 2014. 300 Kan. 650, Syl. Accordingly, the Kansas Supreme Court granted Prince's petition for review of his sentence, vacated the sentencing portion of our opinion, and directed that we reconsider the case in light of that court's ruling in Reese.
We recognized in our initial opinion the significance of this issue:
“Prince is right that that is an important issue: if the 2011 amendment applies, Prince's Missouri convictions for driving with excess blood alcohol content would no longer enhance his sentence. That would make his current offense a first-offense DUI, which is a misdemeanor, rather than a fourth-offense DUI, which is a felony. [Citation omitted.] The penalties for the first-offense misdemeanor DUI are—not surprisingly—less than those for the fourth-offense felony DUI.” Prince, 2014 WL 113434, at *6.
The Kansas Supreme Court has determined that the 2011 amendment applies in cases like Prince's. Accordingly, he must be sentenced as a first-time DUI offender, not a fourth-time offender. See Reese, 300 Kan. 650, Syl.; K.S.A.2011 Supp. 8–1567(j)(3).
We therefore vacate Prince's sentence and remand with directions for resentencing.