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State v. Tims

Court of Appeals of Kansas

January 3, 2014

STATE of Kansas, Appellant,
Daniel W. TIMS, Appellee.

Page 116

Syllabus by the Court

1. An appellate court has jurisdiction to review the State's claim of an illegal sentence when an appeal is brought pursuant to K.S.A. 22-3504, but an appellate court's answer to a State's question reserved has no effect on the criminal defendant in the underlying case.

Page 117

2. A defendant charged with felony driving under the influence (DUI) based on prior DUI convictions who wishes to challenge the felony classification grounds of the charge should do so at the preliminary hearing. Once a defendant has waived his or her preliminary hearing, the right to seek dismissal of a DUI charge on felony classification grounds is also waived. By waiving the preliminary hearing, a defendant consents to a finding that probable cause existed to establish that a felony was committed.

3. Since proof of a prior DUI conviction is not an element of DUI to be established at trial and need not be brought out until the sentencing phase, a defendant must challenge a prior DUI conviction at sentencing to preserve the issue for appellate review.

4. K.S.A.2011 Supp. 8-1567, the statute governing DUI offenses, is a recidivist statute providing for an enhanced severity in charge and sentence if the offender has previous DUI convictions. Entering into a valid DUI diversion agreement constitutes a prior conviction for use in determining the severity and sentence of the current DUI charge.

5. An uncounseled DUI diversion may be used as a prior conviction to enhance sentencing in a subsequent DUI conviction so long as no imprisonment was actually imposed in the uncounseled diversion. Under these circumstances, the Sixth Amendment right to counsel does not apply.

6. A diversion is not akin to a suspended sentence or probation. The crucial distinction between a diversion agreement and a suspended sentence or probation is that, at the time a defendant enters into a diversion agreement, no adjudication of guilt is entered, eligibility for imprisonment is not established, and no prison sentence is determined.

7. Kansas statutes governing DUI diversion agreements in both district and municipal courts include language regarding a statutory right to counsel: " [T]he defendant shall be present and shall have the right to be represented by counsel at the diversion conference with the district [or city] attorney." K.S.A. 22-2907(3); see K.S.A.2012 Supp. 12-4414(c).

8. The statutory right to counsel does not mean a defendant is required to have counsel in order to enter into a valid DUI diversion agreement, nor does it mean that appointed counsel must be provided to an indigent defendant.

9. Since the DUI diversion conference and the formation of the DUI diversion contract do not involve the adjudication of a defendant's guilt, no judicial certification is needed to waive a defendant's statutory right to have counsel present during the diversion conference. Since diversion agreements are to be interpreted in accordance with contract principles, if the terms of the DUI diversion agreement clearly inform a defendant of his or her right to counsel and a defendant knowingly and voluntarily gives up such right, then nothing more is required.

Tim Liesmann, assistant county attorney, Shawna Miller, county attorney, and Derek Schmidt, attorney general, for appellant.

Kevin Shepherd, of Topeka, for appellee.



The State appeals Daniel W. Tims' driving under the influence (DUI) sentence, claiming it is illegal because the district court improperly excluded Tims' prior DUI diversion from its calculation of Tims' criminal history. The district court agreed with Tims that his prior uncounseled DUI diversion could not be counted in his criminal history, making this DUI Tims' second conviction rather than his third. Because we hold that Tims' prior uncounseled DUI diversion should have been counted in his criminal history, we reverse the district court and remand for resentencing as a felony third DUI conviction.


The Jackson County District Court found Tims guilty of driving under the influence of alcohol in June 2012. This was not Tims' first DUI. In 2002, Tims executed a DUI diversion agreement in the Topeka Municipal

Page 118

Court. There is no evidence in the record regarding whether Tims successfully completed the diversion; however, Tims makes no claim that he served jail time in connection with his Topeka offense; Tims' presentence investigation report lists it as a diversion and not a conviction; and since it is the subject of this appeal, we presume the diversion was never revoked and no sentence was imposed. Tims was convicted of another DUI in 2004.

Based upon the 2002 DUI diversion and the 2004 DUI conviction, in 2012 the State charged Tims with felony DUI under K.S.A.2011 Supp. 8-1567(a)(5) and (b)(1)(D). Curiously, Tims waived his preliminary hearing then subsequently filed a Motion to Strike Diversion from Consideration of Defendant's Criminal History and Discharge from Felony Charges. After the State responded only to the merits of the motion and not its procedural propriety, the district court heard arguments and granted Tims' motion. The State then filed a motion to reconsider, resulting in a brief hearing and denial by the district court. Thereafter, the parties agreed to a bench trial upon stipulated facts. The State reserved the right to appeal the district court's sentencing decision based on the court's exclusion of Tims' 2002 DUI diversion from his criminal history.

The district court found Tims guilty, treated his conviction as a second misdemeanor DUI conviction, and sentenced him to probation. The State timely appeals based on ...

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