355 P.3d 660
Kan.2015Background
- In 2002 Tims entered a Topeka municipal DUI diversion agreement (no formal adjudication of guilt and no jail sentence imposed).
- The 2002 diversion was treated as a prior DUI under K.S.A. 2011 Supp. 8-1567(j) when the State charged Tims in 2012 with felony third DUI (based on two prior DUIs within 10 years).
- Tims waived a preliminary hearing in 2012, later moved to strike the 2002 diversion from his criminal history, and the district court granted the motion, sentencing him as a misdemeanor second DUI.
- The Court of Appeals reversed, holding (1) Sixth Amendment counsel rights did not attach at the diversion, (2) Tims had a statutory right to counsel at diversion but validly waived it in writing, and (3) the 2002 diversion could be counted as a prior conviction; it remanded for felony resentencing.
- The Kansas Supreme Court granted review on a question of statewide importance to decide whether an uncounseled DUI diversion can constitutionally or statutorily be used to enhance a later DUI sentence absent a valid waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sixth Amendment right to counsel attached during 2002 DUI diversion | State: Diversion is a prior conviction under statute and may be used for enhancement because no Sixth Amendment right attached | Tims: Diversion is functionally like a suspended sentence; Sixth Amendment attached and uncounseled diversion cannot be used to enhance | Court: Sixth Amendment did not attach because diversion involved no adjudication, no established eligibility for imprisonment, and no imposed or suspended jail term; diversion may be used for enhancement |
| Whether an uncounseled DUI diversion is equivalent to an uncounseled misdemeanor that carried suspended jail time | State: Diversion is distinguishable from suspended sentence and is like a misdemeanor with no jail term | Tims: Diversion left him exposed to jail if revoked, so it is equivalent to suspended jail sentence | Court: Diversion lacks underlying sentence and is analogous to a misdemeanor that resulted in no jail; constitutional bar inapplicable |
| Whether K.S.A. 12-4414(c) creates a statutory right to counsel at diversion and whether waiver was valid | State: Even if statutory right exists, the signed diversion agreement shows a knowing and voluntary waiver | Tims: Hughes and Gilchrist require a judge’s on-the-record advisement/certification for waiver to be valid | Court: Statutory right exists, but Hughes/Gilchrist (which govern Sixth Amendment jail-sentence situations) do not impose a judge-certification requirement for diversion waiver; written agreement showing knowing and voluntary waiver suffices |
| Whether the diversion agreement must include judge's certification for waiver to be valid | State: No judge certification required; contract waiver controls | Tims: Waiver invalid without judicial advisement/certification per precedents | Court: Certification not required for diversion because Sixth Amendment right was not implicated; waiver governed by clear contract language and contract principles |
Key Cases Cited
- Alabama v. Shelton, 535 U.S. 654 (2002) (suspended jail sentence for misdemeanor triggers Sixth Amendment right to counsel)
- Nichols v. United States, 511 U.S. 738 (1994) (uncounseled misdemeanor with no jail sentence may be used to enhance later sentences)
- State v. Youngblood, 288 Kan. 659 (2009) (adopts Shelton; unicounseled misdemeanor resulting in imprisonment—even if suspended—cannot be used for sentence enhancement)
- State v. Hughes, 290 Kan. 159 (2010) (addresses required advisements/valid waiver where uncounseled municipal convictions resulted in jail)
- In re Habeas Corpus Application of Gilchrist, 238 Kan. 202 (1985) (discusses waiver of right to counsel in municipal conviction contexts)