STATE OF KANSAS, Appellant, v. JESSICA LYNN MYERS, Appellee.
No. 122,046
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
Opinion filed October 2, 2020.
Before SCHROEDER, P.J., GREEN and BUSER, JJ.
- Whether jurisdiction exists is a question of law over which an appellate court has unlimited review.
- Kansas appellate courts have jurisdiction to entertain a State‘s appeal only if it is taken within the time limitations and in the manner prescribed by the applicable statutes.
K.S.A. 2019 Supp. 22-3603 is intended to permit appellate review of trial court rulings on pretrial motions which may be determinative of the case.- In an interlocutory appeal, the prosecutor should be prepared to make a showing to the appellate court that the pretrial order of the district court appealed from substantially impairs the State‘s ability to prosecute the case.
- The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Only if the statute‘s language or text is unclear or ambiguous does the court resort to legislative history to construe the Legislature‘s intent.
K.S.A. 2019 Supp. 8-1567(j)(3) invites impermissible judicial fact-finding in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by giving courts broad discretion to determine whether a defendant committed the out-of-jurisdiction offense in a manner similar enough toK.S.A. 2019 Supp. 8-1567 .- Under Apprendi v. New Jersey, 530 U.S. 466, and the categorical approach in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), a sentencing court cannot engage in judicial fact-finding beyond the existence of a prior conviction to enhance the defendant‘s sentence.
- Nothing in the plain language of
K.S.A. 2019 Supp. 8-1567(j)(2) and(3) prevents courts from following the identical-to-or-narrower-than rule in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). - Applying the bright-line rule established in Wetrich standardizes the classification of prior out-of-state convictions to be counted only if the elements of the out-of-state statute are identical to or narrower than Kansas’ DUI statute.
Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed October 2, 2020. Affirmed.
Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.
Adam D. Stolte, of Stolte Law, LLC, of Overland Park, for appellee.
Before SCHROEDER, P.J., GREEN and BUSER, JJ.
SCHROEDER, J.: Jessica Lynn Myers was charged with felony driving under the influence (DUI), third offense. After Myers waived her preliminary hearing and pled not guilty, she moved to strike her two prior Missouri convictions for driving while intoxicated (DWI) from being used to elevate her current DUI charge to a felony. The district court granted Myers’ motion, and the State timely filed this interlocutory appeal. On appeal, the only jurisdictional
FACTS
Myers was arrested in Johnson County on February 14, 2019, for DUI. The State charged Myers with felony DUI, third offense, under
Myers waived her preliminary hearing and was bound over for trial on felony DUI. She then pled not guilty to the charge. Myers timely moved to strike her prior Missouri DWI convictions from her criminal history, arguing her prior convictions could not be used to elevate her current DUI charge to a felony. Myers claimed the Missouri DWI statute was broader than Kansas’ DUI statute and therefore failed the comparability analysis set out in
The district court granted Myers’ motion. Relying on the identical-to-or-narrower-than rule set out in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), and the categorical approach in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I), the district court agreed with Myers’ argument and found her prior Missouri DWI convictions were not comparable to Kansas DUI because the elements of the Missouri DWI statute were broader than the Kansas DUI statute. In doing so, the district court recognized it had to analyze the statutory definition of “comparable” offense as used in
The district court issued its ruling striking Myers’ Missouri DWI convictions from her criminal history. The district court, however, did not dismiss the felony DUI charge. The State, in its notice of appeal, appealed under
ANALYSIS
I. We have jurisdiction over the State‘s appeal under K.S.A. 2019 Supp. 22-3603 .
Myers argues we lack jurisdiction over the State‘s appeal. Whether jurisdiction exists is a question of law over which this court has unlimited review. The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. If a party appeals in a manner not prescribed by statutes, we must dismiss the appeal. See State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016).
In a criminal case, the State‘s right to appeal is limited by the jurisdictional bases provided by statute. Kansas appellate courts have “jurisdiction to entertain a State‘s appeal only if it is taken within time limitations and in the manner prescribed by the applicable statutes. State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010).” State v. Mburu, 51 Kan. App. 2d 266, 269-70, 346 P.3d 1086 (2015).
Here, the State‘s notice of appeal invoked our jurisdiction under
“When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order . . . suppressing evidence . . . an appeal may be taken by the prosecution from such order if notice of appeal is filed within 14 days after entry of the order.”
The other jurisdictional bases asserted in the State‘s notice of appeal have not been addressed in the State‘s brief. Accordingly, any potential arguments the State could have
There is no question the State appealed from the district court‘s order within the 14-day time limit. But Myers argues proof of a prior conviction is not an element of trial proof for a DUI conviction; therefore, the district court‘s order did not suppress evidence within the meaning of
To resolve this jurisdictional dispute, we consider Kansas appellate court decisions interpreting what an order “suppressing evidence” under
Later, in State v. Newman, 235 Kan. 29, 34, 680 P.2d 257 (1984), the Kansas Supreme Court interpreted
“We hold that the term ‘suppressing evidence’ as used in [
K.S.A. 22-3603 ] is to have a broader meaning than the suppression of evidence which is illegally obtained. It should include not only ‘constitutional suppression’ but also rulings of a trial court which exclude state‘s evidence so as to substantially impair the state‘s ability to prosecute the case.”
Thus, under Newman, an order “suppressing evidence” under
Here, the district court‘s order did not entail constitutional suppression under
Even so, the State argues under Newman, the order substantially impairs its ability to prosecute the case. DUI can be classified as either a nonperson misdemeanor or a nonperson felony. See
Through her motion to strike, Myers properly challenged her prior convictions before trial. See Key, 298 Kan. at 322-23. In granting Myers’ motion, the district court found Myers’ Missouri DWI convictions were not comparable to Kansas DUI and essentially held no felony had been committed. As the State correctly argues, the district court‘s order eliminated its ability to convict Myers of felony DUI. Even if the State chose to amend Myers’ charge to misdemeanor DUI, the State would still have to prove every substantive element of DUI under
We find the State‘s reasoning persuasive. DUI is unique in that even though a defendant‘s prior convictions are not elements of trial proof, the inclusion of a defendant‘s prior convictions as an elevating factor for felony DUI dictates how a defendant may be sentenced upon conviction. Here, even though the district court‘s order essentially found no felony had been committed, it did not officially dismiss Myers’ felony DUI charge. The State should have asked the district court to clarify its ruling and dismiss Myers’ felony DUI charge. Doing so would have enabled the State to invoke its right to appeal from an order dismissing a complaint under
II. Myers’ Missouri DWI convictions cannot be used to elevate her current Kansas DUI charge to a felony.
Turning to the merits, the district court‘s order struck Myers’ prior convictions based on its statutory interpretation of
The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Only if the statute‘s language or text is unclear or ambiguous does the court resort to legislative history to construe the Legislature‘s intent. State v. LaPointe, 309 Kan. 299, 314-15, 434 P.3d 850 (2019).
“Kansas’ DUI law [
Effective July 1, 2018, the Legislature amended the portion of the DUI statute that
Before the 2018 amendments,
“For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:
“(1) Convictions for a violation of this section, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, shall be taken into account, but only convictions or diversions occurring on or after July 1, 2001.
. . . .
“(3) ‘conviction’ includes: . . . (B) conviction of a violation of . . . any law of another state which would constitute a crime described in subsection (i)(1) or (i)(2).” (Emphases added.)
While
The Legislature also added three criteria for courts to determine whether another jurisdiction‘s law is comparable:
“(j) For the purposes of determining whether an offense is comparable, the following shall be considered:
(1) The name of the out-of-jurisdiction offense;
(2) the elements of the out-of-jurisdiction offense; and
(3) whether the out-of-jurisdiction offense prohibits similar conduct to the conduct prohibited by the closest approximate Kansas offense.”
K.S.A. 2019 Supp. 8-1567(j) .
As a panel of this court found in State v. Stanley, 53 Kan. App. 2d 698, 700, 390 P.3d 40 (2016), Kansas’ DUI statute criminalizes two acts: “(1) operating or attempting to operate a vehicle with a blood- or breath-alcohol level of .08 or more; and (2) operating or attempting to operate a vehicle while under the influence of alcohol and/or drugs to a degree that renders the person incapable of safely driving the vehicle.” See
Myers was convicted of Missouri DWI in 2002 and 2010. The statute of conviction provided: “A person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition.”
The Stanley panel interpreted the same DWI statute at issue in this case and found:
“The Missouri statute on its face is too broad to count as a prior conviction under
K.S.A. 2012 Supp. 8-1567(i) . Clearly, driving ‘under the influence’ of alcohol covers a wider range of activity than driving under the influence of alcohol ‘to a degree that renders the person incapable of safely driving a vehicle’ or ‘driving with an alcohol concentration of .08 or more.‘” 53 Kan. App. 2d at 701.
Thus, as Stanley clearly resolved, the elements of Missouri DWI are broader than Kansas DUI. See State v. Mejia, 58 Kan. App. 2d 229, 241, 466 P.3d 1217 (2020) (presuming Missouri DWI statute broader than Kansas DUI statute.
The State reasons that even if the elements of Missouri DWI are broader than Kansas DUI, Missouri DWI nonetheless prohibits “similar conduct” to DUI under
A. Apprendi requires us to apply the criteria in K.S.A. 2019 Supp. 8-1567(j) using Wetrich‘s identical-to-or-narrower-than rule.
Even though Myers has not been sentenced yet, Apprendi is relevant at this stage because
To avoid impermissible fact-finding in violation of Apprendi, we must apply
Furthermore, because the Missouri DWI statute is not divisible, we cannot look to additional documents to determine whether the conduct leading to Myers’ prior convictions would have fallen within the acts proscribed by
Nothing in the plain language of
In reaching this result, we also rely on State v. Gensler, 308 Kan. 674, 681, 685, 423 P.3d 488 (2018), where our Supreme Court applied the identical-to-or-narrower-than rule to the 2017 predecessor DUI statute. There, the district court used the defendant‘s prior DUI convictions under a Wichita municipal ordinance to enhance his state sentence. Finding the Wichita ordinance‘s definition of “vehicle” to be an indivisible element of the crime, the Gensler court applied the categorical approach generally utilized in the comparability analysis for the revised Kansas Sentencing Guidelines Act (KSGA),
While the 2018 amendments to Kansas’ DUI statute were inapplicable in Gensler, we find the case nonetheless demonstrates our
B. The legislative history behind the 2018 amendments is not relevant to our analysis.
The State also reasons the word “comparable” in
If we were to find the adjective “comparable” renders
In the preamble to the session law for
“WHEREAS, The Legislature intends that the provisions of this act related to comparability of an out-of-jurisdiction offense to a Kansas offense shall be liberally construed to allow comparable offenses, regardless of whether the elements are identical to or narrower than the corresponding Kansas offense, to be included in a person‘s criminal history; and
“WHEREAS, The Legislature intends to promote the inclusion of convictions for such offenses in a person‘s criminal history, including, but not limited to, any violation of: . . . Missouri, V.A.M.S. § 577.010 or V.A.M.S. § 577.012.” (Emphases added.) L. 2018, ch. 106, Preamble.
Although the State correctly identifies the Legislature‘s intent to include Missouri DWI convictions as comparable offenses under
C. We decline to follow the Mejia majority panel.
Finally, we note the majority panel of Mejia recently addressed this same legal question and arrived at a different conclusion. Mejia was charged with felony DUI based on three prior Missouri DWI convictions. He filed a motion challenging the use of his prior convictions as an elevating factor for his felony DUI charge before the preliminary hearing, arguing his prior Missouri DWI convictions were not comparable to Kansas DUI. The district court agreed, finding, under Wetrich, Mejia‘s prior Missouri DWI convictions must prohibit the same or a narrower
On appeal, the majority found Mejia‘s prior DWI convictions could be used to elevate his DUI charge to a felony. The majority‘s decision rested on three primary findings: (1) Wetrich‘s identical-to-or-narrower-than rule is inapplicable to the DUI context; (2) the word “comparable” in
First, in finding Wetrich was inapplicable to the DUI context, the Mejia majority relied on Reese, where the Kansas Supreme Court noted: “‘Given that the DUI statute provides its own sentencing provisions, cases relating to the proper application of the [revised] Kansas Sentencing Guidelines Act (KSGA) are of minimal precedential value.’ 300 Kan. at 654.” Mejia, 58 Kan. App. 2d at 232. The majority then found Wetrich was not controlling authority for
Next, the Mejia majority found the word “comparable” in
Finally, the Mejia majority found “the three-factor test for comparability in
Given these considerations, the Mejia majority held even though the elements of Missouri‘s DWI are broader than Kansas’ DUI, they still prohibit similar conduct, and the district court erred in dismissing Mejia‘s felony DUI charge. 58 Kan. App. 2d at 249.
We respectfully disagree with the Mejia majority‘s reasoning. Despite the majority‘s reliance on Reese, which was decided in 2014, we believe the more recent decision in Gensler better reflects our Supreme Court‘s intent
We also recognize in Patton, 58 Kan. App. 2d ___, ___ P.3d ___ (No. 120,434, filed September 11, 2020), slip op. at 13, another panel of this court followed the general rationale of the Mejia majority that “cases relating to the proper application of the KSGA are of minimal precedential value in DUI cases” since the DUI statute is a self-contained statute. See Mejia, 58 Kan. App. 2d at 232. We do not disagree the Kansas DUI statute is self-contained, but that does not eliminate the need for the statute to comply with Gensler‘s rule applying Dickey I that elements of the prior convictions must “be the same as, or narrower than, the elements of
We are not bound by the Mejia majority or the Patton panel decisions. See Jarvis v. Kansas Dept. of Revenue, 56 Kan. App. 2d 1081, 1094-95, 442 P.3d 1054, rev. granted 310 Kan. 1062 (2019). “Although separate panels of the Court of Appeals should strive to be consistent in decision-making, ultimately the court must do its best to decide each case based on the facts and the law, bearing in mind that the Kansas Supreme Court is the final arbiter of all disputes.” State v. Horselooking, 54 Kan. App. 2d 343, 350, 400 P.3d 189 (2017).
We decline to follow the majority decision in Mejia or the Patton panel and, instead, find the dissent in Mejia is persuasive and tracks with our analysis. See 58 Kan. App. 2d at 250-54 (Schroeder, J., dissenting). Following Gensler, we find the district court did not err when it held Myers’ Missouri DWI convictions could not be used to elevate her current charge to a felony DUI because the Missouri DWI statute criminalizes broader conduct than Kansas’ DUI statute,
Affirmed.
***
BUSER, J., concurring in part and dissenting in part: I concur in my colleagues’ legal conclusion that our court has jurisdiction to consider the State‘s appeal under