283 P.3d 233
Kan. Ct. App.2012Background
- Reese appeals his sentence for a fifth lifetime DUI conviction.
- District court refused to retroactively apply K.S.A. 2011 Supp. 8-1567(j)(3).
- Reese had prior DUI dates in 1983, 1985, 1988, and 1999; he was arrested 2009 and convicted in 2011.
- 2011 amendment shortens look-back to convictions on or after July 1, 2001 for sentencing.
- Prior to 2011, the statute used a lifetime look-back; Reese argues for retroactive application of the amendment.
- Court applies the general rule that punishment is based on law in effect when the crime was committed; amendment is treated as prospective.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactive application of look-back | Reese: amendment should apply retroactively. | State: amendment applies prospectively. | Prospective only; not retroactive |
| Intent to retroactively apply when absent explicit retroactivity | Legislation implied retroactivity due to amended provisions. | No clear retroactivity intent; only some provisions retroactive. | No retroactivity for 8-1567(j)(3) |
| Ameliorative/remedial changes and retroactivity | Reese cites remedial/ameliorative rules supporting retroactivity. | Kansas law has not recognized such rule. | No retroactive ameliorative relief acknowledged |
Key Cases Cited
- State v. Williams, 291 Kan. 554 (2010) (prescribes rule that punishment must be fixed as of crime date; amendments are generally prospective)
- State v. Mayberry, 248 Kan. 369 (1991) (enhanced punishment under then-current statute; retroactivity not required when amended later)
- State v. Edwards, 28 Kan. App. 2d 379 (2000) (amendment changing felony to misdemeanor did not apply retroactively)
- State v. Martin, 270 Kan. 603 (2001) (retroactivity discussed in context of statutory changes)
- In re Petition to Call Grand Jury, 2011 WL 4716342 (Kan. App. 2011) (unpublished; indicates treatment of legislative retroactivity indicators)