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State v. Whillock

September 7, 2007

STATE OF KANSAS, APPELLEE,
v.
MEARL E. WHILLOCK, II, APPELLANT.



Appeal from Jefferson District Court; GARY L. NAFZIGER, judge.

SYLLABUS BY THE COURT

1. Our review of statutory interpretation is unlimited.

2. K.S.A. 2006 Supp. 8-1567(h) is construed and applied.

3. A plea of no contest does not admit the allegations of the charge but merely says the defendant does not choose to defend.

4. Under the facts of this case, the defendant neither stipulated to the presence of a child under the age of 14 in his vehicle, nor did he consent to the court finding such a fact. Because the fact of the child's presence in the vehicle was not proved to a jury beyond a reasonable doubt, the defendant's constitutional rights as recognized in Apprendi v. New Jersey, The opinion of the court was delivered by: Elliott, J.

Reversed in part, sentence vacated, and case remanded with directions.

Before GREEN, P.J., ELLIOTT and HILL, JJ.

Mearl E. Whillock, II, appeals from the sentence imposed following his no contest plea to a third felony charge of driving under the influence (DUI). We reverse in part, vacate the sentence, and remand with directions.

Responding to a report of an intoxicated person leaving the Oskaloosa Thiftway in a silver Dodge pickup, a sheriff's officer saw Whillock driving a silver pickup out of the parking lot. Detective Kirk Vernon placed his patrol car in front of Whillock's truck and activated his emergency lights.

Vernon approached the truck and asked Whillock if he had been drinking; Vernon saw a half-empty bottle of raspberry vodka between Whillock's leg and the truck's console. Vernon also observed a 6-year-old child in the truck.

Whillock failed a preliminary breath test and was transported to the sheriff's office where he failed field sobriety tests and consented to a breath test. Whillock's breath alcohol content was .368. Whillock was charged as follows: Count I--felony third DUI; Count II--endangering a child; and Count III--transporting an open container of alcohol.

Pursuant to a plea agreement which is not in the record on appeal, Whillock pled no contest to a third felony DUI. There was some confusion at sentencing. The trial court sentenced Whillock to 1 year in county jail for the DUI, plus 30 days because of the presence of the minor.

The State noted the additional 30 days came from the requirement of K.S.A. 2006 Supp. 8-1567(h) that Whillock serve a mandatory 30 days in addition to whatever sentence was imposed for the third felony DUI due to the child's presence. Accordingly, the State announced it was dismissing Counts II and III.

After the trial court pronounced a finding of guilt on Counts I and II, the State again clarified Counts II and III were dismissed due to the effect of 8-1567(h). The trial court never acknowledged on ...


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