State v. Patton ( 2022 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 120,434
STATE OF KANSAS,
Appellee,
v.
DWAYNE LYNN PATTON,
Appellant.
SYLLABUS BY THE COURT
1.
When sentencing defendants as repeat offenders under K.S.A. 2015 Supp. 8-1567,
the plain language of the statute establishes that the Legislature intended courts to count
as prior convictions those out-of-state offenses with elements identical to, or narrower
than, the Kansas DUI statute.
2.
The elements of the Missouri driving while intoxicated (DWI) statute, Mo. Rev.
Stat. § 577.010, are broader than the elements of K.S.A. 2015 Supp. 8-1567, and a
conviction under Missouri's DWI statute does not constitute a prior conviction under
K.S.A. 2015 Supp. 8-1567(i)(3).
3.
The elements of the Oklahoma DUI statute, Okla. Stat. tit. 47, § 11-902, are
broader than the elements of K.S.A. 2015 Supp. 8-1567, and a conviction under
Oklahoma's DUI statute does not constitute a prior conviction under K.S.A. 2015 Supp.
8-1567(i)(3).
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4.
When sentencing defendants as repeat offenders under K.S.A. 2020 Supp. 8-1567,
the Legislature intended courts to count as prior convictions those out-of-state offenses
comparable to Kansas' DUI statute in title, elements, and prohibited conduct, even if the
elements of the out-of-state crime are broader.
5.
The Missouri DWI statute, Mo. Rev. Stat. § 577.010, is comparable to K.S.A.
2020 Supp. 8-1567, and a conviction under Missouri's DWI statute constitutes a prior
conviction under K.S.A. 2020 Supp. 8-1567(i)(3)(B).
6.
The Oklahoma DUI statute, Okla. Stat. tit. 47, § 11-902, is comparable to K.S.A.
2020 Supp. 8-1567, and a conviction under Oklahoma's DUI statute constitutes a prior
conviction under K.S.A. 2020 Supp. 8-1567(i)(3)(B).
7.
The application of K.S.A. 8-1567's sentencing provisions to a defendant who
committed the offense before, but was sentenced after, new amendments went into effect,
relying on State v. Reese, 300 Kan. 650, 333 P.3d 149 (2014), violates the Ex Post Facto
Clause of article I, section 10 of the United States Constitution if the intervening change
in the law increases the defendant's punishment.
8.
A sentencing court should apply the version of K.S.A. 8-1567 in effect at the time
of sentencing unless the Legislature amended the statutory provisions after the offense
was committed and that amendment increases the defendant's penalty or otherwise
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disadvantages the defendant as contemplated in Beazell v. Ohio, 269 U.S. 167, 169-70,
46 S. Ct. 68, 70 L. Ed. 216 (1925).
Review of the judgment of the Court of Appeals in 58 Kan. App. 2d 669, 475 P.3d 14 (2020).
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed February 11, 2022.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court
is vacated, and the case is remanded with directions.
Shannon S. Crane, of Hutchinson, argued the cause and was on the briefs for appellant.
Thomas R. Stanton, district attorney, argued the cause, and Natasha Esau, assistant district
attorney, Keith E. Schroeder, former district attorney, and Derek Schmidt, attorney general, were with him
on the briefs for appellee.
The opinion of the court was delivered by
WALL, J.: In this appeal we address the sentencing of repeat offenders under
K.S.A. 8-1567, the driving under the influence (DUI) statute in Kansas. Recently in State
v. Myers, 314 Kan. 360, 499 P.3d 1111 (2021), we held that under the 2018 amendments
to that statute, the Legislature intended courts to count as prior convictions those out-of-
state offenses comparable to the Kansas DUI statute, even if the elements of the out-of-
state crime are broader. We must now decide whether those amendments apply to a
person, like Dwayne Patton, who committed a DUI before, but was sentenced after, the
amendments came into effect.
In State v. Reese, 300 Kan. 650, 333 P.3d 149 (2014), we held that courts should
apply the DUI sentencing provisions in effect at the time of sentencing, even if the law
has changed since the offense occurred. But the facts here require us to clarify this
general rule established in Reese. We hold that a sentencing court should apply the
version of K.S.A. 8-1567 in effect at the time of sentencing unless the Legislature
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amended the statutory provisions after the offense was committed and that amendment
increases the defendant's penalty. In those circumstances, applying the intervening
change in the law, relying on Reese, would violate the Ex Post Facto Clause of article I,
section 10 of the United States Constitution. To avoid this constitutional quandary,
sentencing courts should instead apply the version of K.S.A. 8-1567 in effect when the
defendant committed the DUI offense.
Here, that means that the version of K.S.A. 8-1567 in effect when Patton
committed his DUI in January 2016 applies in determining his sentence, not the 2018
amendments. Under the plain language of the statute in effect in 2016, two of Patton's
out-of-state DUI convictions—one from Missouri and one from Oklahoma—would not
count as prior convictions because the elements of those statutes are not identical to, or
narrower than, the elements of the Kansas statute. But under the 2018 amendments, those
out-of-state convictions would constitute prior convictions because the DUI statutes of
those states are "comparable" to the Kansas DUI statute. See Myers, 314 Kan. at 377.
Because the Kansas DUI statute provides progressively enhanced penalties for repeat
offenders, applying the 2018 amendments to Patton at sentencing would increase his
punishment in violation of the Ex Post Facto Clause. We therefore reverse the panel of
the Court of Appeals that applied those amendments and remand the matter to the district
court for resentencing under the sentencing provisions in effect when Patton committed
the DUI in January 2016.
FACTUAL AND PROCEDURAL BACKGROUND
The Kansas DUI statute provides progressively enhanced penalties for repeat
offenders. See K.S.A. 2020 Supp. 8-1567(b)(1)(A)-(E). A first conviction is classified as
a misdemeanor offense. K.S.A. 2020 Supp. 8-1567(b)(1)(A). A second conviction is a
misdemeanor with increased jail time and fines. K.S.A. 2020 Supp. 8-1567(b)(1)(B). A
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third conviction is a misdemeanor with even more severe penalties unless the person has
a prior DUI within the last 10 years, in which case it is a felony. K.S.A. 2020 Supp. 8-
1567(b)(1)(C) and (D). And a fourth or subsequent conviction is always a felony. K.S.A.
2020 Supp. 8-1567(b)(1)(E).
Various statutory provisions inform the sentencing court which convictions to
count when determining whether to sentence a defendant as a first-time, second-time,
third-time, or fourth-or-subsequent-time offender. See K.S.A. 2020 Supp. 81567(i)(1)-
(6). Relevant to this appeal are the provisions informing the courts which out-of-state
DUI convictions qualify as prior offenses under Kansas' DUI statute. The 2018 legislative
amendments to K.S.A. 8-1567 materially changed these provisions.
When Patton committed his DUI in January 2016, the version of the statute
in effect directed courts to count out-of-state DUI convictions that "would constitute
a crime" under the Kansas DUI statute. K.S.A. 2015 Supp. 8-1567(i)(3). But because
Patton failed to appear several times, his jury trial did not occur until September 2018,
and he was not sentenced until November 2018. In the meantime, the Legislature
had amended K.S.A. 8-1567. Those amendments, which went into effect on July 1,
2018, directed courts to count out-of-state DUI convictions that "would constitute an
offense that is comparable" to a DUI under the Kansas statute. K.S.A. 2018 Supp. 8-
1567(i)(3)(B); L. 2018, ch. 106, § 13. We recounted the legislative process that produced
the amendments in Myers. 314 Kan. at 368-76.
At sentencing, the parties never discussed which version of K.S.A. 8-1567 applied
because Patton had not disputed that he had at least three prior DUI convictions. His
presentence investigation report showed four DUI convictions after July 1, 2001. See
K.S.A. 2020 Supp. 8-1567(i)(1) (directing courts to count only those prior convictions
that occurred on or after that date). The first was a 2003 Kansas conviction. The second
5
was a 2003 Oklahoma conviction. The third was a 2007 Missouri conviction. And the
fourth was a 2010 Kansas conviction. Based on these convictions, the district court
sentenced Patton to 12 months in jail for having committed a fourth or subsequent DUI
under K.S.A. 2018 Supp. 8-1567(b)(1)(E).
On appeal to a panel of the Court of Appeals, Patton argued for the first time
that the district court had erred by counting his Oklahoma and Missouri DUI convictions
as prior offenses, rendering his sentence illegal. Patton claimed that K.S.A. 2015 Supp. 8-
1567, the version of the statute in effect when he had committed the offense, allowed
courts to count out-of-state convictions only if the elements of the other state's DUI law
were identical to, or narrower than, the elements of the Kansas law. And he insisted that
the elements of Oklahoma's DUI and Missouri's driving while intoxicated (DWI) statutes
were broader. The State agreed that Patton's sentence should be determined under the
version of the law in effect when he committed the offense in January 2016. The State
also agreed that the Missouri DWI statute was broader than the Kansas statute. But the
State maintained that the elements of the Oklahoma statute were identical to Kansas' DUI
statute.
The panel disagreed with the parties' analytical framework. Instead, the panel
relied on our decision in Reese, which held that the DUI sentencing provisions in effect
at the time of sentencing apply, even if those provisions were not yet in effect when the
defendant had committed the offense. See 300 Kan. at 657. Under the Reese framework,
the panel applied K.S.A. 2018 Supp. 8-1567, the version in effect after the 2018
amendments, and held that the district court properly counted Patton's Oklahoma and
Missouri convictions as prior offenses because they were "comparable" to a Kansas DUI
offense. State v. Patton, 58 Kan. App. 2d 669, 681-82, 475 P.3d 14 (2020).
6
We granted Patton's petition for review of this issue. The panel also rejected
Patton's prosecutorial-error claim, but Patton did not petition for review of that issue.
Following oral argument, we ordered supplemental briefing to address whether the
panel's decision to apply the 2018 amendments to K.S.A. 8-1567, relying on Reese,
violated the Ex Post Facto Clause. In their supplemental briefs, Patton and the State
agreed that the panel's application of the amendments violated the Ex Post Facto Clause
and that this court should instead apply the DUI sentencing provisions in effect when
Patton committed his offense.
Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review
of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to
review Court of Appeals decisions upon petition for review).
DISCUSSION
To resolve this appeal, we must determine which version of K.S.A. 8-1567 applies
to Patton. Is it, as the panel held, the version in effect when Patton was sentenced? Or, as
the parties contend, do ex post facto concerns require us to apply the version in effect
when Patton committed his offense?
I. Standard of Review and Legal Framework
To answer those questions, we must interpret K.S.A. 8-1567 as well as statutes
from Oklahoma and Missouri. As we have often said, the most fundamental rule of
statutory construction is that we follow the Legislature's intent when we can establish it.
State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). We begin that search by
looking at the statutory language. If that language is clear and unambiguous, we stop
there. 288 Kan. at 257. District courts and the Court of Appeals use the same approach.
7
But statutory interpretation presents a question of law, so our review of the lower courts'
conclusions is unlimited, and we need not defer to their interpretation of K.S.A. 8-1567.
State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019).
We must also determine whether the application of K.S.A. 2018 Supp. 8-1567
to Patton flouts the Ex Post Facto Clause, which generally prohibits the retroactive
criminalization of an act or the retroactive increase in the severity of punishment for an
offense. State v. Todd, 299 Kan. 263, 277-78, 323 P.3d 829 (2014). Like statutory
interpretation, a statute's constitutionality raises a question of law subject to unlimited
review. State v. Gonzalez, 307 Kan. 575, 579, 412 P.3d 968 (2018).
II. This Case Is Distinguishable from Reese Because the Intervening Change in Law
Disadvantages Patton
The facts in Reese are similar, but not identical, to those here. Reese committed a
DUI in July 2009 and was convicted in June 2011. When he committed that offense,
K.S.A. 2009 Supp. 8-1567(o)(3) directed courts to count all prior DUI convictions during
a defendant's lifetime when sentencing the defendant as a repeat offender. But before
Reese was sentenced, an amendment to K.S.A. 8-1567 went into effect on July 1, 2011.
Under that amendment, courts could consider prior convictions only if the conviction
occurred on or after July 1, 2001. Reese argued at sentencing that this intervening change
in the law should apply to him. The district court disagreed and sentenced Reese for a
fourth or subsequent DUI, a felony offense. Because Reese had only one DUI conviction
on or after July 1, 2001, applying the amendment would have greatly benefitted him—he
would have been sentenced for a second DUI, a misdemeanor offense, rather than the
felony sentence that the court imposed.
8
We reversed a panel of the Court of Appeals that affirmed the district court's
ruling. Reese, 300 Kan. at 658-59. After reviewing the historical development of the DUI
statutory scheme and considering how prior DUI offenses have historically been handled,
we announced a general rule: when sentencing a defendant as a repeat DUI offender, the
Legislature intended courts to apply the sentencing provisions of K.S.A. 8-1567 in effect
at the time of sentencing. 300 Kan. at 654-59. Based on that general rule, we vacated
Reese's sentence and remanded with directions to resentence him under the 2011
amendments. 300 Kan. at 659.
Yet there is a material fact that distinguishes Patton's circumstances from those in
Reese. There, applying the intervening change in the sentencing provisions benefitted the
defendant—he was sentenced for a second DUI instead of a fourth or subsequent DUI. In
contrast, Patton was disadvantaged by applying the intervening change in the sentencing
provisions. Under the version of the statute in effect when Patton committed the offense,
his Oklahoma and Missouri convictions would not have counted as prior convictions. But
under the 2018 amendments that went into effect before Patton was sentenced, those
same out-of-state convictions would count as prior convictions for purposes of sentencing
Patton as a repeat DUI offender.
To confirm that Patton would be disadvantaged by applying the 2018
amendments, we first analyze how Patton's Oklahoma and Missouri convictions would
have been treated under each version of the DUI sentencing provisions. Once this
conclusion is substantiated, we then determine whether applying the law in effect at the
time of Patton's sentencing violates the Ex Post Facto Clause and warrants further
clarification of the general rule established in Reese.
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A. Under K.S.A. 2015 Supp. 8-1567(i)(3), Convictions Under Oklahoma's and
Missouri's Statutes Do Not Count as Prior Convictions for Purposes of
Sentencing Patton as a Repeat DUI Offender
The version of the statute in effect when Patton committed the DUI was K.S.A.
2015 Supp. 8-1567. Under that statute, a prior "'conviction' includes . . . a violation of . . .
any law of another state which would constitute a crime described in subsection (i)(1)."
K.S.A. 2015 Supp. 8-1567(i)(3). Subsection (i)(1) includes "[c]onvictions for a violation
of [the Kansas DUI statute]." K.S.A. 2015 Supp. 8-1567(i)(1). Under this statutory
scheme, an out-of-state conviction may be counted as a prior conviction—and in turn,
increase the penalty for a current DUI offense—only if that out-of-state crime would also
violate the Kansas statute.
We have not previously interpreted this statutory provision. But a panel of the
Court of Appeals did in State v. Stanley, 53 Kan. App. 2d 698, 390 P.3d 40 (2016). It
construed that statute narrowly to include as a prior conviction only those out-of-state
offenses with elements identical to, or narrower than, the elements of K.S.A. 8-1567.
53 Kan. App. 2d at 700-01. The panel relied on the plain statutory language to reach that
conclusion, not constitutional principles or canons of construction.
We agree with Stanley's conclusion that the plain language of K.S.A. 2015 Supp.
8-1567(i)(3) requires sentencing courts to count out-of-state DUIs as prior convictions
only if they pass the "identical-to-or-narrower-than" elements test. This conclusion
logically flows from the language in subsection (i)(3) that directs sentencing courts to
include as prior offenses those out-of-state convictions that "constitute a crime" under
the Kansas DUI statute. Thus, if the elements of an out-of-state statute are identical to
the elements of the Kansas DUI statute, then an out-of-state conviction under that
jurisdiction's statute would necessarily "constitute a crime" under the Kansas DUI statute.
The same is true of an out-of-state statute with elements narrower than the Kansas DUI
10
statute. But if the elements of the out-of-state offense are broader than the elements of
the Kansas statute, then a person could violate the out-of-state statute without violating
the Kansas statute. In that case, a violation of the out-of-state offense would not
necessarily "constitute a crime described in [the Kansas DUI statute]." K.S.A. 2015 Supp.
8-1567(i)(3).
As a result, to determine whether Patton's out-of-state DUIs may be counted as
prior convictions under K.S.A. 2015 Supp. 8-1567(i)(3), we must compare the elements
of the Missouri and Oklahoma statutes to the elements of the Kansas DUI statute. Unless
the elements of those statutes are identical to, or narrower than, those of K.S.A. 2015
Supp. 8-1567, Patton's out-of-state convictions cannot be considered when sentencing
him as a repeat DUI offender.
As it still does, the Kansas DUI statute in effect at the time of Patton's offense
prohibited operating or attempting to operate a vehicle while the person's blood-alcohol
concentration was .08 or more or while the person was incapable of safely driving
because of the influence of drugs or alcohol:
"(a) Driving under the influence is operating or attempting to operate any vehicle within
this state while:
(1) The alcohol concentration in the person's blood or breath as shown by
any competent evidence . . . is .08 or more;
(2) the alcohol concentration in the person's blood or breath, as measured
within three hours of the time of operating or attempting to operate a vehicle, is
.08 or more;
(3) under the influence of alcohol to a degree that renders the person
incapable of safely driving a vehicle;
11
(4) under the influence of any drug or combination of drugs to a degree
that renders the person incapable of safely driving a vehicle; or
(5) under the influence of a combination of alcohol and any drug or
drugs to a degree that renders the person incapable of safely driving a vehicle."
K.S.A. 2015 Supp. 8-1567(a).
Patton's 2007 Missouri DWI conviction was based on Mo. Rev. Stat. § 577.010(1982). Under that statute, "[a] person commits the crime of 'driving while intoxicated' if
he [or she] operates a motor vehicle while in an intoxicated or drugged condition." Mo.
Rev. Stat. § 577.010(1) (1982). A person is in an "intoxicated condition" when he or she
is "under the influence of alcohol, a controlled substance, or drug, or any combination
thereof." Mo. Rev. Stat. § 577.001(13); see also State v. Schroeder, 330 S.W.3d 468, 475
(Mo. 2011) (holding that attempts to define what is meant by an "'intoxicated condition'"
would "'tend to confuse rather than clarify the issues'").
The Missouri statute is broader than K.S.A. 2015 Supp. 8-1567 in at least one
respect. Operating a vehicle "under the influence of alcohol" covers a wider range of
conduct than operating a vehicle under the influence of alcohol or drugs "to a degree that
renders the person incapable of safely driving a vehicle" or driving when a person's blood
alcohol concentration (BAC) "is .08 or more." K.S.A. 2015 Supp. 8-1567(a)(1). A person
can be under the influence of alcohol without having a BAC of .08 or more and without
being under the influence to a degree that the person is incapable of safely driving.
This element of Mo. Rev. Stat. § 577.010 is broader than the elements of K.S.A. 2015
Supp. 8-1567. As a result, a Missouri DWI conviction would not constitute a prior
conviction under K.S.A. 2015 Supp. 8-1567(i)(3).
12
Patton's other out-of-state conviction, the 2003 Oklahoma DUI, was based on
Okla. Stat. tit. 47, § 11-902 (2002). That statute provided that a person commits an
Oklahoma DUI by driving, operating, or being in actual physical control of a vehicle
when (1) the person's blood-alcohol concentration is .10 or more, (2) the person is under
the influence of alcohol, or (3) the person is incapable of safely driving because of the
influence of drugs and alcohol:
"A. It is unlawful and punishable as provided in this section for any person to
drive, operate, or be in actual physical control of a motor vehicle within this state who:
1. Has a blood or breath alcohol concentration . . . of ten-hundredths
(0.10) or more at the time of a test of such person's blood or breath administered
within two (2) hours after the arrest of such person;
2. Is under the influence of alcohol;
3. Is under the influence of any intoxicating substance other than alcohol
which may render such person incapable of safely driving or operating a motor
vehicle; or
4. Is under the combined influence of alcohol and any other intoxicating
substance which may render such person incapable of safely driving or operating
a motor vehicle." Okla. Stat. tit. 47, § 11-902(A) (2002).
Much of the Oklahoma DUI statute criminalizes the same conduct as Kansas' DUI
statute. But the elements of an Oklahoma DUI differ from Kansas in at least one material
respect. Under the Oklahoma statute, a person may not "be in actual physical control" of
a vehicle while the person has a blood-alcohol concentration of .10 or more or is
incapable of safely driving because of the influence of drugs or alcohol. Okla. Stat. tit.
47, § 11-902(A). Under the actual-physical-control standard, "[a] person may thus be
convicted . . . if he was intoxicated and behind the wheel of an operable motor vehicle."
13
State v. Salathiel, 313 P.3d 263, 264 n.2 (Okla. Crim. App. 2013); see also Hughes v.
State, 535 P.2d 1023, 1024 (Okla. Crim. App. 1975) (holding that "'actual physical
control'" can mean "'directing influence, domination[,] or regulation,'" and that it is
sufficient that defendant "could have at any time started the automobile and driven
away").
A person who violates that portion of the Oklahoma statute would not have
committed a crime under the Kansas DUI statute because the actual-physical-control
standard cannot establish a crime under K.S.A. 8-1567. See State v. Darrow, 304 Kan.
710, 714, 374 P.3d 673 (2016). The Kansas statute criminalizes "operating or attempting
to operate any vehicle" under the influence. K.S.A. 2015. Supp. 8-1567(a). Under the
statute, the term "'operating' requires movement of the vehicle, and an 'attempt to operate'
means to attempt to move the vehicle." 304 Kan. at 714. As a result, "[t]aking actual
physical control of the vehicle is insufficient to attempt to operate that vehicle without an
attempt to make it move." 304 Kan. at 714. The Oklahoma statute thus criminalizes a
broader range of conduct than the Kansas DUI statute—the elements of the Oklahoma
offense are not identical-to-or-narrower-than the crime of DUI in Kansas. Like a
conviction under the Missouri statute, a conviction under the Oklahoma statute would
not constitute a prior conviction under K.S.A. 2015 Supp. 8-1567(i)(3).
We note that subsection (A)(2) of the Oklahoma DUI statute, on its face,
seemingly provides another independent basis for concluding that the elements of the
Oklahoma statute are broader than those of the Kansas statute. Under that subsection,
a person commits a DUI by operating a vehicle while merely "under the influence of
alcohol." Okla. Stat. tit. 47, § 11-902(A)(2). One could argue—and Patton has on
appeal—that a person could be "under the influence of alcohol" under the Oklahoma
statute without being under the influence to a degree that the person is incapable of safely
driving, which the Kansas statute requires. See K.S.A. 2015 Supp. 8-1567(a)(3)-(5).
14
If that were the case, then the Oklahoma DUI statute (much like the Missouri DWI
statute) would have elements broader than the Kansas DUI statute.
But unlike the appellate courts in Missouri, Oklahoma's appellate courts have
consistently interpreted the phrase "under the influence" to mean that an "intoxicating
substance" has "so far affected [a person] as to hinder, to an appreciable degree, his
ability to operate a motor vehicle in a manner that an ordinary prudent and cautious
person, in full possession of his faculties, using reasonable care, would operate or drive
under like conditions." Stewart v. State, 372 P.3d 508, 513 (Okla. Crim. App. 2016)
(citing Stanfield v. State, 576 P.2d 772, 774 [Okla. Crim. App. 1978]); see Luellen v.
State, 81 P.2d 323, 329 (Okla. Crim. App. 1938).
Based on this authority, we are not convinced that subsection (A)(2) of the
Oklahoma DUI Statute is broader than the standard under K.S.A. 2015 Supp. 8-
1567(a)(3)-(5), which prohibits "driving under the influence" of alcohol, drugs, or a
combination of alcohol and drugs "to a degree that renders the person incapable of safely
driving a vehicle." Arguably, being under the influence of a substance to a degree that
prevents a person from operating a vehicle as an "ordinary prudent and cautious" person
"using reasonable care"—the Oklahoma standard—would also mean that a person was
incapable of safely driving a vehicle—the Kansas standard. In other words, an ordinary
prudent and cautious person, using reasonable care, drives safely.
As such, subsection (A)(2) of the Oklahoma DUI statute, as construed by
Oklahoma appellate courts, appears to be substantively identical to, not broader than,
K.S.A. 2015 Supp. 8-1567(a)(3)-(5). Even so, because we have already found that the
Oklahoma DUI statute is broader than the Kansas DUI statute in another material respect,
we decline to define the exact contours of subsection (A)(2) of the Oklahoma statute.
15
We now turn to the version of the Kansas statute in place at the time of sentencing
to determine whether application of the 2018 amendments increase the punishment for
Patton's offense.
B. Under K.S.A. 2018 Supp. 8-1567(i)(3) and (j), Convictions Under Oklahoma's
and Missouri's DUI Statutes Count as Prior Convictions for Purposes of
Sentencing Patton as a Repeat DUI Offender
The version of the statute in effect at the time of Patton's sentencing was K.S.A.
2018 Supp. 8-1567, which incorporates the Legislature's 2018 amendments. Under that
version of the statute, when courts are sentencing a defendant as a repeat DUI offender,
they should count convictions "of a violation of . . . any law of another jurisdiction that
would constitute an offense that is comparable to" the offenses described in the Kansas
DUI statute. (Emphasis added.) K.S.A. 2018 Supp. 8-1567(i)(3). And when considering
whether an out-of-state offense is "comparable" to a Kansas DUI, sentencing courts
consider the name and elements of the out-of-state offense and whether that offense
prohibits similar conduct:
"(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. 2018
Supp. 8-1567(j)(1)-(3).
16
We recently interpreted these provisions in Myers. We determined that the word
"comparable" was ambiguous in the statute and examined the legislative history that led
to the 2018 amendments. 314 Kan. at 368-76. Based on this history, we held that when
sentencing defendants as repeat offenders under the Kansas DUI statute, the Legislature
intended courts to count as prior convictions those out-of-state offenses comparable to
Kansas' DUI statute in title, elements, and prohibited conduct, even if the elements of the
out-of-state crime are broader. 314 Kan. at 376. And we determined that the Missouri
DWI statute was similar to the Kansas DUI statute in title, elements, and prohibited
conduct and thus was "comparable" for purposes of K.S.A. 2018 Supp. 8-1567(i)(3). 314
Kan. at 377.
As part of our legislative history analysis, we also looked to the preamble to the
bill enacting the 2018 amendments, which explains that the Legislature intended
convictions from a nonexclusive list of jurisdictions, including Missouri, to be
comparable offenses that qualify as a prior DUI offense under K.S.A. 8-1567:
"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: Wichita municipal ordinance section 11.38.150; Missouri, V.A.M.S. § 577.010 or
V.A.M.S. § 577.012; Oklahoma, 47 Okl. St. Ann. § 11-902; Colorado, C.R.S.A. § 42-4-
1301(1); and Nebraska, Neb. Rev. St. § 60-6,196." House Journal, p. 3078 (May 2,
2018).
We recognized that this type of legislative preamble is not part of the enacted
statute, but in the face of statutory ambiguity, "'[a] preamble, purpose clause, or recital is
a permissible indicator of meaning.'" 314 Kan. at 374 (quoting Scalia & Garner, Reading
Law: The Interpretation of Legal Texts 217 [2012]). We relied, in part, on that preamble
to clarify the statutory ambiguity and to bolster our conclusion that the Legislature
17
intended convictions under Missouri's DWI statute to count as prior convictions for the
sentencing of repeat DUI offenders. 314 Kan. at 374.
Using the same reasoning employed in Myers, we can reach the same conclusion
about Oklahoma's DUI statute. The statute's title, elements, and prohibited conduct are
similar to the Kansas DUI statute. And the list of jurisdictions set forth in the preamble to
the bill enacting the 2018 amendments also includes Oklahoma convictions. Thus, we
hold that a conviction under Oklahoma's DUI statute is "comparable" to Kansas' DUI
statute and thus constitutes a prior conviction under K.S.A. 2018 Supp. 8-1567.
The analysis above confirms that under the version of the statute in effect when
Patton committed his offense, neither his prior Missouri DWI conviction nor his
Oklahoma DUI conviction constituted prior offenses for purposes of sentencing under
K.S.A. 2015 Supp. 8-1567. But under the version of the statute in effect at the time of
Patton's sentencing, both out-of-state convictions are "comparable" to a Kansas DUI
conviction. Thus, both Patton's Missouri DWI conviction and Oklahoma DUI conviction
constitute prior offenses for purposes of sentencing under K.S.A. 2018 Supp. 8-1567.
In this respect, whether Patton's out-of-state convictions constitute prior offenses
for purposes of sentencing depends on which version of the statute applies—under
K.S.A. 2015 Supp. 8-1567 the out-of-state convictions are not prior offenses, but under
K.S.A. 2018 Supp. 8-1567, both out-of-state convictions constitute prior offenses. We
now consider the legal consequences arising from this conclusion.
III. Applying the 2018 Amendments Under These Circumstances Violates the Ex Post
Facto Clause and Requires Clarification of the Rule in Reese.
As noted above, an ex post facto violation occurs when a statute applies to acts
committed before the statute went into effect and applying the statute disadvantages
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the defendant. Todd, 299 Kan. at 277-78. Here, the Court of Appeals panel applied
statutory amendments to an act (Patton's January 2016 DUI) that occurred before those
amendments came into effect. We must now determine whether that application
disadvantaged Patton in violation of the Ex Post Facto Clause.
Not all allegations of disadvantage can establish an ex post facto violation.
Instead, to be unconstitutional under the Clause, the statute must disadvantage the
defendant in one of the three ways recognized in Beazell v. Ohio, 269 U.S. 167, 169-70,
46 S. Ct. 68, 70 L. Ed. 216 (1925). Todd, 299 Kan. at 277. There, the United States
Supreme Court described three categories of statutes that would violate the Clause:
(1) statutes that punish as a crime conduct that was innocent when a person committed it;
(2) statutes that increase the punishment for a crime after its commission; and (3) statutes
that deprive a person of a defense to a crime available when it was committed. 299 Kan.
at 277.
Based on our comparison of the DUI sentencing provisions in effect when Patton
committed the offense with those provisions in effect after the 2018 amendments, we
conclude that the second Beazell category applies. The panel's application of the 2018
amendments required it to count Patton's prior out-of-state convictions in determining his
repeat offender status. And because the DUI statute provides progressively enhanced
penalties for repeat offenders, the effect of including those out-of-state convictions was to
increase Patton's punishment. As a result, applying the 2018 amendments to Patton would
increase the penalty for his offense after he committed it. Which is to say, application of
those amendments to Patton would violate the Ex Post Facto Clause.
This constitutional predicament requires us to clarify the general rule established
in Reese: that a sentencing court should apply the law in effect at the time of sentencing
to determine whether a defendant has committed a first, second, third, or fourth or
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subsequent DUI offense. 300 Kan. at 656, 658-59. That general rule stands. But in Reese,
the defendant benefited from the intervening change in the law. Here, the intervening
change in the law disadvantages Patton by retroactively increasing the punishment for his
offense, in violation of the Ex Post Facto Clause. Thus, we clarify the general rule in
Reese and hold that a sentencing court should apply the version of K.S.A. 8-1567 in
effect at the time of sentencing unless the Legislature amended the statutory provisions
after the offense was committed and that amendment increases the defendant's penalty
(or otherwise disadvantages the defendant as contemplated in Beazell). In those
circumstances, the sentencing court must apply the law in effect when the offense was
committed.
With that clarification, we conclude that the DUI sentencing provisions in effect
when Patton committed his DUI in January 2016 apply to his sentencing. Even so, we do
not fault the approach taken by the Court of Appeals panel. Courts are duty bound to
follow this court's precedent absent an indication that we are departing from that
precedent, and we had given no indication that we were departing or modifying the rule
established in Reese. See State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017).
But the facts of this appeal require clarification of that general rule. As a result, we
reverse the panel of the Court of Appeals and remand the matter to the district court for
resentencing under the DUI sentencing provisions in effect when Patton committed his
crime, i.e., K.S.A. 2015 Supp. 8-1567.
Lastly, we briefly note some lingering uncertainty about one of Patton's prior DUI
convictions. Along with Patton's 2003 Kansas DUI conviction and the out-of-state
convictions discussed above, Patton's presentence investigation report (PSI) also included
a 2010 Kansas DUI conviction as part of his criminal history. Unlike the first three
convictions, the PSI scored the 2010 Kansas DUI as an adult nonperson felony, not as a
sentence enhancement. During oral arguments, Patton claimed that the PSI classification
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controls and that the 2010 conviction cannot count as a prior conviction at sentencing.
Contrary to the statement of the Court of Appeals, the State has consistently maintained
on appeal that the 2010 Kansas conviction should count as a prior conviction for
sentencing purposes. And in supplemental briefing, the State contended that the PSI
complied with K.S.A. 2015 Supp. 21-6810(d)(9), which directs courts to count all prior
convictions for criminal-history purposes except those that are used to enhance a
sentence. Here, only three prior DUI convictions were needed to enhance Patton's
sentence to a fourth-or-subsequent DUI, the highest severity. So the State argues that
there would have been no reason for the PSI to list the 2010 DUI as a sentence-enhancing
conviction. The record before us is not sufficient for meaningful review and resolution of
this issue. That said, this opinion does not foreclose further litigation of that issue on
remand for resentencing.
The judgment of the Court of Appeals affirming the district court is reversed, the
judgment of the district court is vacated, and the case is remanded to the district court
with directions.
STANDRIDGE, J., not participating.
HENRY W. GREEN JR., J., assigned.1
1
REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed
to hear case No. 120,434 vice Justice Standridge under the authority vested in the
Supreme Court by K.S.A. 2020 Supp. 20-3002(c).
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