State v. Tims, 317 P.3d 115

State appeals Tims' DUI sentence after district court excluded Tims' 2002 uncounseled DUI diversion from criminal history.
District court treated 2012 DUI as a second misdemeanor and sentenced to probation; the State contends the 2002 diversion should count as a prior conviction making the 2012 case a third, felony DUI.
Tims argued the 2002 diversion was invalid and thus could not be counted for criminal history.
The State pursued appeal under a theory that the diversion counts as a prior conviction under K.S.A. 2011 Supp. 8-1567(j)(1).
The court holds that the 2002 DUI diversion should have been counted, reversing and remanding for resentencing as a third, felony DUI.
The opinion addresses whether a Sixth Amendment or statutory right to counsel applies in DUI diversion proceedings and whether waiver of counsel must be judicially certified.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the 2002 DUI diversion count as a prior conviction for 8-1567?	Tims contends the diversion is invalid and cannot be counted.	State contends diversion qualifies as a prior conviction under 8-1567(j)(1).	Diversion counts as a prior conviction; 2012 DUI is third felony.
Whether a Sixth Amendment right to counsel attaches in DUI diversion proceedings and waivers must be judicially certified	Tims asserts uncounseled diversion violates Sixth Amendment rights or requires judge-certified waiver.	State argues diversion is valid without Sixth Amendment waiver and without judicial certification.	Sixth Amendment right does not attach to diversion; waiver need not be certified by a judge.
Whether there is a statutory right to counsel in diversion proceedings and its effect on waiver	Tims relies on statutory right to counsel in diversion; argues waiver invalid without counsel.	State asserts statutory right may exist but does not require counsel to enter diversion; waiver valid if knowing and voluntary.	There is a statutory right but not a mandatory counsel appointment; waiver with knowing, voluntary language is valid.

State v. Berreth, 294 Kan. 98 (2012) (question reserved jurisdictional considerations for appellate review)
State v. McCarley, 287 Kan. 167 (2008) (appellate review of state’s illegality claim on sentence)
State v. Hughes, 290 Kan. 159 (2010) (waiver of counsel requirements for diversion cases)
State v. Paletta, 20 Kan. App. 2d 859 (1995) (uncounseled diversion may count for criminal history if no imprisonment)
State v. Delacruz, 258 Kan. 129 (1995) (uncounseled misdemeanor conviction may be used for sentencing history)
Alabama v. Shelton, 535 U.S. 654 (2002) (Sixth Amendment right to counsel attaches upon guilt adjudication and imprisonment eligibility)
State v. Masterson, 261 Kan. 158 (1996) (prior conviction proof not an element at trial; affects sentencing history)