State v. Tafoya

POWELL

Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.

POWELL, J.

This is Kenneth J. Tafoya's appeal after resentencing.

A prior panel of this court affirmed Tafoya's conviction of driving under the influence (DUI). State v. Tafoya, No. 100,784, 2010 WL 5185473 (Kan.App.2010) (unpublished opinion), rev. denied 293 Kan. –––– (2011). The fines imposed for that crime and for driving with a suspended license were vacated, however, and the district court was directed to consider two issues on remand: First, the method of payment of the DUI fine in light of State v. Copes, 290 Kan. 209, 222–23, 224 P.3d 571 (2010) (district court must consider whether defendant should pay monetary fine or provide community service in lieu of fine), and second, to consider Tafoya's financial resources to pay the fine imposed for driving with a suspended license in light of State v. Raschke, 289 Kan. 911, 924, 219 P.3d 481 (2009) (district court required to consider defendant's financial resources if imposing more than the minimum fine).

The district court considered these two issues as required by the mandate and refused to consider Tafoya's new issue—whether the new look-back period for prior DUI offenses contained in K.S.A.2012 Supp. 8–1567(i)(1) could be applied retroactively. Tafoya appeals again, arguing the district court erred in refusing to consider the new look-back period in K.S.A.2012 Supp. 8–1567(i)(1).

A jury found Tafoya guilty of a 2006 DUI. Before trial, Tafoya entered a plea to the driving while suspended charge. Because he had three prior DUI convictions within 10 years, the district court classified Tafoya's current fourth DUI as a felony offense. The district court imposed a 180–day jail sentence, 12 months of postrelease supervision, and the mandatory fine of $2,500 for Tafoya's DUI conviction. The district court imposed a 90–day jail sentence to run concurrent to the DUI sentence and fined Tafoya $200 for his driving while suspended conviction. Tafoya, 2010 WL 5185473, at *2.

In his direct appeal, Tafoya raised various trial and sentencing issues. The prior panel upheld Tafoya's DUI conviction and his sentences but agreed the district court failed to consider the method of payment of the mandatory DUI fine and failed to consider Tafoya's financial resources to pay the driving while suspended fine in light of the court's decision to impose more than the minimum fine for that conviction. See K.S.A. 21–4706(3). Our court remanded and directed the district court to reconsider these two fines in light of Copes and Raschke. Tafoya, 2010 WL 5185473, at *9–10.

Before the district court held a hearing as directed by our court, Tafoya filed a Motion to Impose Sentence Pursuant to Senate Bill 6, Effective July 1, 2011. In his motion, Tafoya asked the district court to retroactively apply the newly amended look-back period for DUI convictions in K.S.A.2012 Supp. 8–1567(i)(1). According to Tafoya, application of the amendment would make his current DUI a first offense. The district court rejected Tafoya's motion, finding it had no jurisdiction to resentence Tafoya and, furthermore, that the Court of Appeals' mandate limited the court to consideration of two specific items—whether Tafoya should be allowed to perform community service in lieu of paying the DUI fine and whether to consider his financial resources to pay the fine for driving while suspended. After considering these two issues, the district court ordered that Tafoya be allowed to perform community service work in lieu of the DUI fine and reduced Tafoya's fine for driving while suspended to the minimum $100 fine.

Tafoya timely appeals.

Now back before this court, Tafoya argues the panel has jurisdiction to consider his issue on appeal because the district court's failure to apply K.S.A.2012 Supp. 8–1567(I)(1) in his case resulted in an illegal sentence. See K.S.A. 22–3504(1) (court may correct an illegal sentence at any time). He further argues the amendment changing the look-back period for prior DUI convictions was a procedural change and thus can be applied in his case. The State maintains the district court had no jurisdiction to consider Tafoya's motion because his sentence was not vacated, and the mandate from this court required the district court to consider solely the imposition of fines. Regardless, the State points out the issue of whether K.S.A.2012 Supp. 8–1567(i)(1) can be applied retroactively has been decided against Tafoya in State v. Reese, 48 Kan.App.2d 87, 283 P.3d 233 (2012), petition for review filed September 4, 2012. Standard of Review

The panel exercises unlimited review over both questions—whether the panel has jurisdiction to consider Tafoya's issue on appeal, and statutory interpretation if the panel decides it has jurisdiction to consider whether the 2011 amendments to K.S.A. 8–1567 can be applied retroactively. See State v. McKnight, 292 Kan. 776, 779–80, 257 P.3d 339 (2011). Jurisdiction

The State is correct in its assertion that the district court was limited to considering the fines and nothing else. See State v. Collier, 263 Kan. 629, Syl. ¶ 4, 952 P.2d 1326 (1998) (trial court's jurisdiction upon remand is limited to compliance with the mandate from the appellate court); State v. Downey, 29 Kan.App.2d 467, 470–71, 27 P.3d 939,rev. denied 212 Kan. 1421 (2001); see also McKnight, 292 Kan. at 779 (once a sentence is pronounced from the bench, the trial court does not have jurisdiction to modify the sentence). Furthermore, Tafoya never argued below that the failure to retroactively apply the 2011 amendments to K.S.A. 8–1567 would constitute an illegal sentence.

Nevertheless, Tafoya is now arguing that failure to apply K.S.A.2012 Supp. 8–1567(i)(1) retroactively results in an illegal sentence. On appeal, the panel may review this claim. See McKnight, 292 Kan. at 779 (K.S.A. 22–3504[l] gives the court jurisdiction to correct an illegal sentence at any time). Retroactivity of New DUI Law

The DUI laws now provide that for purposes of determining whether a conviction is a first, second, third, or fourth or subsequent conviction, the look-back period will no longer be lifetime, but limited to those convictions or diversions that occurred on or after July 2, 2001. The amendment became effective July 1, 2011. See L.2011, ch. 105, § 19.

K.S.A.2012 Supp. 8–1567 cannot be applied retroactively. After Tafoya filed his brief, the Court of Appeals issued a published opinion that considered and rejected the arguments he now raises on appeal. See Reese, 48 Kan.App.2d at 90. Furthermore, numerous panels of this court have subsequently agreed with Reese's thorough treatment of the issue. See, e.g., State v. Ulrich, No. 107,785, 2012 WL 5869662, at *103 (Kan.App.2012) (unpublished opinion), petition for review filed December 17, 2012; State v. Stuart, No. 106,963, 2012 WL 4795599, at *7 (Kan.App.2012) (unpublished opinion), petition for review filed November 1, 2012.

Reese, however, did not consider Tafoya's claim that a recent United States Supreme Court decision, regarding retroactive application of a more lenient penalty provision for defendants who commit crack-related crimes, should apply equally to the DUI statute at issue here. See Dorsey v. United States, 567 U.S. ––––, 132 S.Ct. 2321, 183 L.Ed 2d 250 (2012).

Dorsey held that the new more lenient sentencing provisions that addressed the sentencing disparity between crack and powder cocaine should apply to offenders who committed their crimes before the law changed but were sentenced after the effective date. The decision was based in large part on the Court's concern that any contrary determination would undermine the Federal Sentencing Guidelines' objectives of uniformity and proportionality in sentencing. 132 S.Ct. at 2326.

There are several reasons the Dorsey decision is inapplicable here. First, the United States Supreme Court's decision does not change long-standing fundamental rules in Kansas—a criminal defendant's sentence is effective when the crime was committed, and a statute operates prospectively unless its language clearly indicates a legislative intent that it operate retroactively. See Reese, 48 Kan.App.2d at 89–90 (legislature explicitly provided for retroactive application of some substantive provisions; thus, failure to do so for the look-back provision indicates the statutory changes should apply prospectively). Second, there is no indication the legislature amended the look-back provision to address a perceived sentencing disparity. Finally, Tafoya was not sentenced after the effective date of the amendment; he was sentenced on April 17, 2008, well before the effective date of July 1, 2011.

The district court is affirmed.