State v. ManbeckState v. Manbeck
- Reporters:
- , ,
- Before:
- Wahl
Lead Opinion
Scott E. Manbeck was charged with one count of involuntary manslaughter while driving under the influence of alcohol or drugs, as prohibited by
The presentence investigation report included four prior convictions for driving while under the influence which were converted from misdemeanors to person felonies under the provision of
Manbeck filed an objection to his criminal history score, claiming the prior offenses could not be converted to felonies because the statute permitting the conversion applied only to cases where a defendant was convicted of driving while under the influence of alcohol and drugs. Since he admitted only to driving while under the influence of alcohol or drugs, the statute was inapplicable.
*619The district court found the legislature intended to score all prior convictions for driving while under the influence as person felonies when the current offense involved driving while under the influence of alcohol or drugs. Manbeck was sentenced to 162 months in prison.
Manbeck contends the district court erred in applying K.S.A. 2002 Supp. 4711(c)(2). Manbeck was convicted of violating
“If the current crime of conviction was committed on or after July 1, 1996, and is for involuntary manslaughter while driving under the influence of alcohol and drugs, each prior adult conviction, diversion in lieu of criminal prosecution or juvenile adjudication for: (A) An act described inK.S.A. 8-1567 and amendments thereto; or (B) a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the act described inK.S.A. 8-1567 and amendments thereto shall count as one person felony for criminal history purposes.”
Manbeck’s four prior DUI convictions resulted in raising his criminal history score from “F” to “A” and an increase in his sentence.
Manbeck contends it is error to apply
Interpretation of a statute is a question of law subject to unlimited review. State v. Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001). The intent of the legislature, where ascertainable, governs the interpretation of a statute. State ex rel. Stovall v. Meneley, 271 *620Kan. 355, 378, 22 P.3d 124 (2001). “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” 271 Kan. at 378. A court should not speculate about the legislature’s intent or read a statute to add something that is not readily found in it. 271 Kan. at 378. Ordinary words must be given their ordinary meaning. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001). Criminal statutes are to be construed in favor of the accused and any reasonable doubt about the meaning is to be decided in favor of the accused, but this rule is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect the legislative design and intent. State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).
No Kansas cases considering this issue have been cited to us and our research has found none. The statutes themselves give little guidance.
The district court found the language of
We construe
The clear language of the statute indicates the legislature intended to enhance the sentence for impaired driving by repeat offenders, but the plain language of the statute applies the enhanced penalties only to those drivers who are convicted of being under the influence of alcohol and drugs. It is quite apparent that *621the legislature is aware of the difference resulting from the use of tire disjunctive “or” and the conjunctive “and.” The language is plain and unambiguous. It is our duty to give effect to the intention of the legislature as expressed. We cannot fashion the language to give effect to what we suspect the intent of the legislature might or ought to have been.
In light of our decision, we need not consider Manbeck’s argument that his sentence violated the holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
The sentence of the trial court is vacated and the case is remanded for resentencing with a criminal history score of “F.”
Concurrence Opinion
concurring: I concur with the foregoing result, but I disagree with the statement that “the question becomes whether the legislature intended that all prior convictions for driving while under the influence of alcohol or drugs should be scored as person felonies in determining the defendant’s criminal history score, or should only those convictions for driving while under the influence of alcohol and drugs be scored as person felonies.” If
However, the statute specifically limits its applicability to the post-July 1, 1996, commission of “involuntary manslaughter while driving under the influence of alcohol and drugs.”
The State’s public policy arguments are seductive. One might perceive the goal of
In