[Copyrighted Material Omitted]
Appeal from Ellis District Court; Edward E. Bouker, judge.
BY THE COURT
1. Once a defendant pleads guilty or no contest, he or she has surrendered the right to appeal the conviction, regardless of whether the plea is entered contingent upon a " reservation" of appeal rights. However, the defendant may still, in limited circumstances, appeal the sentence.
2. If a defendant plans to challenge the validity of a prior misdemeanor driving under the influence (DUI) conviction as a classifying factor for a DUI felony charge, he or she must present that challenge at preliminary hearing or through a timely motion to dismiss. If those efforts are unsuccessful, the defendant must go to trial, even if only on stipulated facts, to preserve the argument regarding classification on appeal. If the defendant instead enters a plea of guilty or no contest and does not file an unsuccessful motion to withdraw the plea before the district court, appellate jurisdiction is limited to a review of the sentence pronounced in the felony case.
3. In order to properly challenge the inclusion of a prior conviction for felony sentence enhancement purposes, the defendant must lodge an objection at sentencing. If successful, the felony conviction will not be erased, only the enhanced felony sentence. Subsequently, any attempts to set aside the conviction would have to be raised through a timely K.S.A. 60-1507 motion.
4. The denial of the right to appointed counsel and the lack of a court's subject matter jurisdiction can be the bases upon which a court may disregard prior convictions in the calculation of a subsequent sentence enhancement.
5. Claims of ineffective assistance of counsel or failure to comply with
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), with regards to the due process requirements of a plea advisory, are not allowed in a collateral attack on a prior conviction for sentence enhancement purposes.
6. A finding that a defendant's counsel was ineffective for entering a plea of guilty on his or her behalf without the authority to do so does not provide an independent basis upon which to collaterally attack the validity of a prior misdemeanor conviction used to enhance a subsequent sentence.
7. There is no indication that our Supreme Court is departing from its clear and unequivocal statement in State v. Delacruz,
258 Kan. 129, Syl. ¶ 5, 899 P.2d 1042 (1995), that " [t]he right to collaterally attack prior convictions used for sentence enhancement is limited. Only in those cases involving a denial of counsel as outlined in
Gideon [v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)] is such an attack allowed."
Michael S. Holland II, of Holland and Holland, of Russell, for appellant.
David J. Basgall, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before Arnold-Burger, P.J., McAnany, J., and Ernest L. Johnson, District Judge Retired, assigned.
[50 Kan.App.2d 138] Arnold-Burger, J.:
Sean Aaron Key was convicted of a third time driving under the influence (DUI), a felony level offense. Prior to sentencing he objected to his criminal history and challenged one of his prior misdemeanor DUI convictions as unlawful. He proffered that his attorney pled to the charge without Key being present and without Key's authority. The district court found that this was an impermissible collateral attack on a prior conviction and considered the prior conviction for sentence enhancement purposes. This court dismissed the appeal for lack of appellate jurisdiction. Subsequently, our Supreme Court determined that this court did have jurisdiction to determine the validity of a prior misdemeanor for sentence enhancement purposes. However, the Supreme Court remanded the case to this court to discuss the underlying issue presented by Key: Can an unauthorized guilty plea [50 Kan.App.2d 139] invalidate a prior misdemeanor for sentencing enhancement purposes? The Supreme Court directed this court specifically to State v. Elliott, 281 Kan. 583, 133 P.3d 1253 (2006), State v. Neal, 292 Kan. 625, 258 P.3d 365 (2011), and State v. Delacruz, 258 Kan. 129, 899 P.2d 1042 (1995). Because our Supreme Court has not indicated that it is departing from its prior rulings that the right to collaterally attack prior convictions used for sentence enhancement is limited to those cases involving a denial of counsel and Key was not denied his Sixth Amendment to the United States Constitution right to counsel, we find that an unauthorized guilty plea does not invalidate a prior misdemeanor for sentencing enhancement purposes. The decision of the district court denying Key's motion to strike his 2007 DUI conviction from consideration for sentence enhancement purposes is affirmed.
Factual and Procedural History
On June 11, 2009, Key was charged with felony DUI. Key filed a motion to dismiss the charge as a felony because one of his prior DUI misdemeanor convictions was invalid. Key alleges that his attorney for that conviction pleaded guilty for Key in his absence without Key's permission and authority. The district court found Key's motion to dismiss was an impermissible collateral attack on his prior DUI conviction.
Key pleaded guilty to the felony DUI but reserved the right to appeal the denial of his motion to dismiss, to challenge the use of his prior DUI conviction, and to challenge the severity level of his sentence.
In the presentence investigation report, two prior misdemeanor DUI convictions were listed. Key objected to the presentence investigation report, again asserting that one of his previous misdemeanor DUI convictions, the one from Ellis County District Court, was unlawful because his attorney pleaded guilty on his behalf without Key's consent.
At sentencing, the district court heard Key's argument pertaining to the use of his prior misdemeanor DUI conviction to enhance the severity of his sentence. The district court again denied Key's argument finding that Key was attempting to collaterally attack the [50 Kan.App.2d 140] previous DUI conviction which was not allowed. Key was sentenced to 12 months' ...