State v. Wetter ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,008
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
LEE M. WETTER,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; NEIL B. FOTH, judge. Opinion filed June 17, 2022.
Affirmed.
Carl E. Cornwell, of Olathe, for appellant.
Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., GREEN and GARDNER, JJ.
PER CURIAM: Lee M. Wetter appeals the trial court's classification of his third
driving under the influence (DUI) offense as a felony. Wetter argues that under the plain
language of K.S.A. 2020 Supp. 8-1567(b)(1)(D), the trial court should have classified his
third DUI offense as a misdemeanor. Nevertheless, we have previously rejected Wetter's
interpretation of K.S.A. 8-1568(b)(1)(D). See State v. Wines, 50 Kan. App. 2d 817, 821,
333 P.3d 917 (2014); State v. Bell, 30 Kan. App. 2d 395, 396-97, 42 P.3d 749 (2002).
Following these precedents, we affirm the trial court's classification of Wetter's third DUI
offense as a felony.
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BACKGROUND
Wetter has three DUI offenses in his criminal history. Wetter entered a diversion
agreement for his first DUI offense on April 11, 2006. See K.S.A. 2020 Supp. 8-
1567(i)(1) (explaining that a diversion is a conviction when sentencing under K.S.A.
2020 Supp. 8-1567[b]). Wetter was convicted of his second DUI offense on August 3,
2009. And Wetter was convicted of his third DUI offense on March 1, 2021.
Significantly, Wetter's third DUI conviction resulted from his DUI arrest on May 19,
2019.
At Wetter's sentencing for his third DUI conviction on May 6, 2021, Wetter
argued that the trial court had to classify his third DUI offense as a misdemeanor under
K.S.A. 2020 Supp. 8-1567(b)(1)(D)'s plain language because he was convicted of his
third DUI offense more than 10 years after he had been convicted of his second DUI
offense. It is undisputed that Wetter committed his third DUI offense within 10 years of
his second DUI conviction, but he was not convicted of his third DUI offense within 10
years of his second DUI conviction. The State opposed Wetter's request. Citing this
court's precedents in Bell and Wines, the trial court rejected Wetter's interpretation of
K.S.A. 2020 Supp. 8-1567(b)(1)(D). It held that under these holdings, the date a person
commits his or her current DUI offense triggers the relevant look-back period when
determining whether to classify that person's third DUI offense as a felony or
misdemeanor. Afterwards, because Wetter had committed his third DUI offense within
10 years of his second DUI conviction, the trial court classified Wetter's third DUI
offense as a felony. Then, it sentenced Wetter to 30 days in jail followed by 12 months'
probation. Wetter's underlying sentence was 12 months' jail time.
Wetter timely appeals.
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ANALYSIS
Wetter's appeal concerns the trial court's interpretation of K.S.A. 2020 Supp. 8-
1567(b)(1)(D). Interpretation of a statute is a question of law over which we exercise
unlimited review. State v. Bonner, 290 Kan. 290, 296, 227 P.3d 1 (2010). While engaging
in this review, if we can discern our Legislature's intent through the disputed statute's
plain language, then the plain language of the disputed statute controls our interpretation.
290 Kan. at 296. Thus, we use the rules of statutory construction only when the disputed
statute contains ambiguous language. 290 Kan. at 297.
K.S.A. 2020 Supp. 8-1567(b)(1) addresses DUI sentencing. K.S.A. 2020 Supp. 8-
1567(b)(1)(C) states that a DUI "on a third conviction [is] a class A, nonperson
misdemeanor, except as provided in subsection (b)(1)(D)." Subsection (b)(1)(D) states
that a DUI "on a third conviction [is] a nonperson felony if the person has a prior
conviction which occurred within the preceding 10 years, not including any period of
incarceration."
In Bell, we considered if Bell's DUI offense was improperly classified as a felony
under K.S.A. 1997 Supp. 8-1567(k); this provision required the trial court to consider
"'convictions occurring in the immediately preceding five years'" when classifying a
person's DUI offense as a felony or misdemeanor. 30 Kan. App. 2d at 395-96. Bell
argued that the trial court wrongly classified her DUI as a felony because K.S.A. 1997
Supp. 8-1567(k)'s plain language required "counting from the date of the current
conviction rather than from the date the crime was committed to determine prior
convictions for sentencing enhancement purposes." 30 Kan. App. 2d at 395. Yet, we held
that K.S.A. 1997 Supp. 8-1567(k) required the trial court to consider all previous
convictions that occurred within five years of a person's current DUI offense, not the
person's current DUI conviction, when classifying a DUI offense as a misdemeanor or a
felony. 30 Kan. App. 2d at 396-97.
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The Bell court's holding largely hinged on this court's analysis in City of Chanute
v. Wilson, 10 Kan. App. 2d 498, 704 P.2d 392 (1985). 30 Kan. App. 2d at 396-97. There,
this court explained that the "existing case law" established that the enhancement of a
person's third DUI offense "required each succeeding offense be committed after the
conviction for the preceding offense." 10 Kan. App. 2d at 499. Specifically, we explained
that the precedent in State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983), and State v.
Wilson, 6 Kan. App. 2d 302, Syl. ¶ 1, 627 P.2d 1185, aff'd 230 Kan. 287, 634 P.2d 1078(1981), supported that in the context of DUI sentencing, "the number of the defendant's
prior convictions was determined as of the date of the present offense." City of Chanute,
10 Kan. App. 2d at 500.
More recently, in Wines, we analyzed a substantively identical version of K.S.A.
2020 Supp. 8-1567(b)(1)(D) when considering Wines' argument that the trial court
wrongly classified his third DUI offense as a felony because he entered the diversion
agreement for his second DUI offense more than 10 years before he committed his third
DUI offense. The trial court determined that Wines should be sentenced for felony DUI
because Wines committed his third DUI offense within 10 years of the revocation of his
diversion agreement. In affirming the trial court's felony classification of Wines' third
DUI offense for a different reason, we repeated Bell's holding that "[i]n determining prior
convictions, it is the date the current offense was committed and not the date of the
conviction that triggers the look-back period." Wines, 50 Kan. App. 2d at 821.
Then, we interpreted K.S.A. 2011 Supp. 8-1567(b)(1)(D) as follows:
"Under subsection K.S.A. 2011 Supp. 8-1567(b)(1)(D), a third DUI conviction is
a nonperson felony when a 'person has a prior conviction which occurred within the
preceding 10 years, not including any period of incarceration.' Thus, if a person has two
previous DUI convictions and neither DUI conviction occurred within 10 years of the
current DUI offense, the third DUI conviction would be a class A misdemeanor. K.S.A.
2011 Supp. 8-1567(b)(1)(C). Nevertheless, if at least one of the two previous DUI
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convictions, which occurred after July 1, 2001, was within 10 years of the current DUI
offense, the third DUI conviction would be a felony. K.S.A. 2011 Supp. 8-
1567(b)(1)(D)." (Emphasis added.) 50 Kan. App. 2d at 821.
As he did before the trial court, Wetter argues that under K.S.A. 2020 Supp. 8-
1567(b)(1)(D)'s plain language, the relevant period for determining the classification of a
person's third DUI offense is the time between a person's second DUI conviction date and
a person's third DUI conviction date. Wetter's argument depends on the first part of
K.S.A. 2020 Supp. 8-1567(b)(1)(D), which states that a person's DUI offense will be
classified as a felony "on a third conviction." He contends that since K.S.A. 2020 Supp.
8-1567(b)(1)(D) references a person's third DUI conviction, its plain language establishes
that a person's third DUI conviction triggers the 10-year look-back period.
Although Wetter recognizes this court's contrary precedents in Bell and Wines, he
argues that we wrongly decided those cases. To support his argument, Wetter points out
that under Bell's and Wines' interpretation of K.S.A. 8-1567(b)(1)(D), two people who
commit second DUIs and third DUIs on the same date might have different sentencing
outcomes depending on their DUI conviction dates. As an example, he notes that if one
person was convicted of a second DUI before another person who committed his or her
second DUI offense on the same day, the 10-year look-back period under K.S.A. 2020
Supp. 8-1567(b)(1)(D) for the first person would end before the 10-year look-back period
for the second person. So, even though the people in the preceding example committed
their third DUI on the same day, only the second person's third DUI conviction would be
classified as a felony. Additionally, Wetter notes that in Wines, we pointed out that
K.S.A. 2011 Supp. 8-1567(i) does not explicitly say whether courts should equate a
person's DUI diversion agreement date to a person's DUI conviction date. 50 Kan. App.
2d at 822.
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In making these arguments, Wetter also stresses that the rule of lenity requires
courts to interpret statutes in favor of a criminal defendant. See Bonner, 290 Kan. at 296
(holding that under the rule of lenity, courts must usually "strictly construe[] a criminal
statute in favor of the accused"). Alternatively, Wetter contends that if Bell's and Wines'
precedents are correct, then we should rule that the 10-year look-back period starts when
a person commits his or her second DUI offense. According to Wetter, this is the only
sensible and fair interpretation of K.S.A. 2020 Supp. 8-1567(b)(1)(D). Hence, Wetter
argues that there are a couple reasons why we should vacate his sentence and remand for
resentencing with directions that the trial court classify his third DUI offense as a
misdemeanor.
The State, however, counters that there is an obvious weakness in Wetter's
arguments. First, it notes that Wetter argues that a "disparate treatment among
defendants" is created when using the 10-year look-back period under the Bell and Wines
precedents. Next, the State notes that Wetter has failed "to offer this Court any authority
on the standards applicable to a disparate treatment claim." As a result, the State contends
that Wetter has failed to adequately brief his argument. The State also contends that
K.S.A. 2020 Supp. 8-1567(b)(1)(D)'s plain language and the Bell and Wines precedents
prove that the trial court properly classified Wetter's third DUI offense as a felony.
The State's preservation argument is persuasive. To begin with, after his
conviction, Wetter filed a motion arguing that his third DUI offense should not be
classified as a felony. The State responded to this motion. But neither Wetter's motion
nor the State's response have been included in the record on appeal. And at the hearing on
Wetter's motion, neither Wetter nor the State discussed Wetter's motion before the trial
court denied it. Thus, the minuscule information that we possess about Wetter's motion
comes from the trial court's brief explanation of the motion before denying it from the
bench.
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It is a well-known rule that the party claiming error has the burden of designating
a record on appeal establishing that error. Without such a record, we presume that the
trial court's decision was proper. State v. Miller, 308 Kan. 1119, 1157, 427 P.3d 907(2018). Because Wetter has failed to include his motion for the trial court to classify his
third DUI offense as a misdemeanor, we are left to fill in the gaps as to what Wetter
argued before the trial court. We can only speculate as to what he argued below. We
therefore affirm the trial court's classification of Wetter's third DUI offense as a felony
because Wetter has not designated a record establishing his claim of error.
Next, even if we were to ignore the inadequate record before us, Wetter has also
inadequately briefed his statutory interpretation argument. As already outlined, the Wines′
court relied on the Bell precedent that "[i]n determining prior convictions, it is the date
the current offense was committed and not the date of the conviction that triggers the
look-back period." Wines, 50 Kan. App. 2d at 821. The Bell court reached this holding by
relying on the City of Chanute precedent that for DUI sentencing enhancement purposes,
the number of a person's previous convictions was determined by the date of the current
offense. Bell, 30 Kan. App. 2d at 396-97. Meanwhile, the City of Chanute court reached
this holding by relying on the Wilson and Osoba decisions. City of Chanute, 10 Kan.
App. 2d at 500. The Wilson and Osoba decisions were decided in 1981 and 1983,
respectively.
Yet, in his appellant's brief, Wetter never even mentions the City of Chanute,
Wilson, or Osoba decisions. And he mentions the Bell and Wines decisions just to say
that those decisions were wrongly decided based on his interpretation of K.S.A. 2020
Supp. 8-1567(b)(1)(D). An appellant's failure to show why his or her argument is sound
despite contrary authority is akin to that appellant inadequately briefing his or her
argument. See State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019). Simply put,
although Wetter argues that his statutory interpretation of K.S.A. 2020 Supp. 8-
1567(b)(1)(D) undermines the Bell and Wines precedents, Wetter never discusses the
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Bell′s court or the Wines′ court analysis in reaching the disputed holding that for DUI
sentencing enhancement purposes, the relevant look-back period begins on the date of a
person's current DUI offense. Without this discussion, though, Wetter's analysis is not
grounded. He has not explained why the contrary authority he seeks to overturn is
unsound. Thus, we also affirm the trial court's classification of Wetter's third DUI offense
as a felony because Wetter has inadequately briefed his argument that the trial court
misclassified his DUI offense as a misdemeanor.
Also, notwithstanding the preceding preservation problems with Wetter's
argument, his statutory interpretation of K.S.A. 2020 Supp. 8-1567(b)(1)(D) is
unpersuasive. Again, Wetter's argument hinges on the first part of K.S.A. 2020 Supp. 8-
1567(b)(1)(D), which states that a DUI is "on a third conviction [is] a nonperson felony
. . . ." (Emphasis added.) He argues that because K.S.A. 2020 Supp. 8-1567(b)(1)(D)
provides that a DUI should be classified as a nonperson felony on a person's third
conviction, it follows that the relevant 10-year look-back period should start when a
person is convicted of his or her third DUI offense, not when a person commits his or her
third DUI offense. Wetter's argument, however, ignores that the phrase "on a third
conviction" does not trigger any look-back period. Rather, the phrase "on a third
conviction" denotes how many DUI offenses a person must have to fall under K.S.A.
2020 Supp. 8-1567(b)(1). Thus, every subsection under K.S.A. 2020 Supp. 8-1567(b)(1)
begins by qualifying its application to persons who have been convicted of a certain
number of DUIs. For instance, K.S.A. 2020 Supp. 8-1567(b)(1)(A) provides that a DUI is
"[o]n a first conviction a class B, nonperson misdemeanor." K.S.A. 2020 Supp. 8-
1567(b)(1)(B) provides that a DUI is "[o]n a second conviction a class A, nonperson
misdemeanor." And so on.
So the phrase that Wetter relies on to argue that the relevant 10-year look-back
period starts on a person's third DUI conviction date, not a person's third DUI offense
date, is not the part of K.S.A. 2020 Supp. 8-1567(b)(1)(D) addressing the 10-year look
8
back period. It is merely the part of K.S.A. 2020 Supp. 8-1567(b)(1)(D) that qualifies its
application to persons who have been convicted of a third DUI offense. The part of
K.S.A. 2020 Supp. 8-1567(b)(1)(D) that addresses the 10-year look-back period is the
language stating that "if the person has a prior conviction which occurred within the
preceding 10 years, not including any period of incarceration." So, Wetter's statutory
interpretation argument is unpersuasive because it hinges on language under K.S.A. 2020
Supp. 8-1567(b)(1)(D) that does not define the 10-year look-back period.
Finally, as the State points out, Bell's and Wines′ interpretation of the 10-year
look-back period is logical—"given that using the date of the present conviction would
permit defendants to easily game [(manipulate)] the system by delaying adjudication in
the present offense to set it out beyond 10 years from the prior conviction." Thus, the
look-back period that starts at the date of the current offense—not upon the date of the
current conviction—is proper.
For the preceding reasons, we affirm the trial court's classification of Wetter's third
DUI offense as a felony.
Affirmed.
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