Review of the judgment of the Court of Appeals in 48 Kan.App.2d 87, 283 P.3d 233 (2012) . Appeal from Johnson District Court; THOMAS H. BORNHOLDT, judge.
BY THE COURT
K.S.A. 2011 Supp. 8-1567(j)(3) provides that the sentencing court is to take into account only those prior driving under the influence (DUI) convictions that occurred on or after July 1, 2001, and make the determination at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement. Accordingly, the provisions of K.S.A. 2011 Supp. 8-1567(j)(3) apply to all persons who are sentenced for DUI on or after the July 1, 2011, effective date of the amended statute.
Jay Norton, of Norton Hare, L.L.C., of Overland Park, argued the cause and was on the brief for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
After Christian W. Reese was convicted of driving under the influence of alcohol (DUI), the district court imposed the enhanced sentence applicable to a person with four prior DUI convictions. Reese contends that a change in the law, effective July 1, 2011, should have applied at his August 2011 sentencing to exclude all of his pre-July 1, 2001, DUI convictions for sentence-enhancement purposes. The Court of Appeals held that the shortened look-back provision of the new law is a substantive change that cannot be applied retroactively and, therefore, the amended method of determining whether a DUI conviction is a first, second, third, fourth, or subsequent conviction can only apply to DUIs committed on or after July 1, 2011, regardless of the sentencing date. State v. Reese, 48 Kan.App.2d 87, 90-91, 283 P.3d 233 (2012).
[300 Kan. 651] Finding that the plain statutory language and the unique nature of the DUI sentencing scheme dictate that the number of prior DUI convictions applicable to the current DUI sentence is to be calculated at the time of sentencing on the current conviction, we hold that the shortened look-back period in K.S.A. 2011 Supp. 8-1567(j)(3) should have applied to Reese's August 2011 sentencing. Accordingly, the Court of Appeals and the district court are reversed, Reese's sentence is vacated, and the matter is remanded for resentencing.
Factual and Procedural Overview
Reese was arrested for DUI on July 3, 2009, but he was not convicted of the offense until June 6, 2011. His sentencing was scheduled for August 10, 2011, and a presentence investigation report identified four prior DUI convictions, all occurring before July 1, 2001. Reese filed a motion entitled " Defendant's Objection to and Motion to Strike Priors," arguing that pursuant to K.S.A. 2011 Supp. 8-1567(j), which was effective July 1, 2011, only convictions occurring on or after July 1, 2001, were to be considered for sentence enhancement, i.e., to be used in determining whether the current conviction was a first, second, third, fourth, or subsequent conviction. The motion was denied, and Reese was subsequently sentenced as a fourth or subsequent DUI offender pursuant to K.S.A. 2009 Supp. 8-1567(o)(3), which then provided that all prior DUI convictions during a defendant's lifetime were counted for sentence enhancement purposes.
The Court of Appeals affirmed Reese's enhanced sentence. The panel first noted the " fundamental rule of criminal procedure in Kansas [is] that a defendant is sentenced based on the law in effect when the crime was committed." Reese, 48 Kan.App.2d at 89 (citing State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 ). The panel did not discern any language in the statutory amendment indicating that the legislature clearly intended for the provision to apply " retroactively" to DUIs that were committed prior to, but not sentenced until after, the amendment's effective date. Then, because the statutory amendment was a substantive change in the law, the ...