State v. Fisher (Court of Appeals)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,277

STATE OF KANSAS,
Appellee,

v.

NICHOLAS W. FISHER,
Appellant.


SYLLABUS BY THE COURT

A prior municipal court conviction for driving under the influence (DUI) under a
Wichita ordinance prohibiting operation of a vehicle under certain circumstances, when
the element of "vehicle" is defined more broadly than the "vehicle" element in the state
DUI statute, cannot be used to elevate a later violation of the state statute to a felony.

Review of the judgment of the Court of Appeals in an unpublished opinion filed May 12, 2017.
Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed August 10, 2018.
Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is
vacated, and the case is remanded with directions.

C. Ryan Gering, of Hulnick, Stang, Gering & Leavitt, P.A., of Wichita, was on the briefs for
appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

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BEIER, J.: This companion case to State v. Gensler, 308 Kan. ___, ___ P.3d ___
(No. 112,523, this day decided), and State v. Mears, 308 Kan. ___, ___ P.3d ___ (No.
115,278, this day decided), involves defendant Nicholas W. Fisher's sentence for driving
under the influence (DUI), which was based on two prior convictions for DUI.

One of Fisher's prior DUI convictions was a Wichita Municipal Court conviction.
Fisher argues that the Wichita DUI cannot be used to enhance his current state DUI
sentence, because the Wichita ordinance prohibits a broader range of conduct than the
Kansas statute. As detailed in our decision in Gensler, we hold that a conviction based on
the ordinance cannot be used to enhance a sentence for a DUI conviction under K.S.A.
2017 Supp. 8-1567. We vacate Fisher's sentence and remand this case to the district court
for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On June 5, 2014, Fisher was charged with two alternative counts of driving under
the influence on January 20, 2013. Based on two previous DUI convictions, the State
charged Fisher with felony DUI under K.S.A. 2017 Supp. 8-1567. One of the predicate
DUI convictions arose under Wichita municipal ordinance for a DUI on March 14, 2014.

The ordinance governing at the time of Fisher's prior DUI read in pertinent part:

"(a) No person shall operate or attempt to operate any vehicle within the city
while:

(1) 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;

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(2) Under the influence of alcohol to a degree that renders the
person incapable of safely driving a vehicle;

(3) The alcohol concentration in the person's blood or breath as
shown by any competent evidence is .08 or more. For the purposes of
this section, 'any competent evidence' includes (1) Alcohol concentration
tests obtained from samples taken three hours or more after the operation
or attempted operation of a vehicle, and (2) readings obtained from a
partial alcohol concentration test on a breath testing machine;

(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." Wichita Municipal Ordinance (W.M.O.) 11.38.150.

Fisher's counsel filed a motion to dismiss the charges, arguing that the Wichita
DUI did not count as a prior DUI because the Wichita ordinance is broader than the state
statute.

At the hearing on the motion, the judge began by looking at the "city disposition
sheets" from Fisher's prior Wichita conviction. Although the sheets established Fisher's
prior conviction, they did not describe his specific means of conveyance. The State
acknowledged the deficiency but was prepared to offer the citation, "which is also the
charging document[] in the city." According to the State, the citation would establish the
means of conveyance.

After argument from both sides about the appropriateness of considering the
information in the charging document, the judge concluded that the Wichita ordinance
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qualified as "divisible." Because it was divisible, the "modified categorical" approach
would apply, permitting him to view the charging document. The judge then reviewed the
document and noted for the record, "Mr. Fisher's ticket from the city was dated July 4,
2013. The allegations are that he operated a vehicle, a Nissan SBL SLR." The judge thus
found that a motor vehicle was operated, which qualified the Wichita DUI as a prior
conviction under K.S.A. 2017 Supp. 8-1567.

Fisher's case proceeded to a bench trial on stipulated facts, and he was found
guilty of DUI.

At sentencing, Fisher renewed his objection to using his Wichita DUI conviction
as a prior DUI. The objection was overruled.

On appeal to the Court of Appeals, the panel held that the sentencing court should
have applied a categorical approach in its analysis. "Based purely on the language of [the
Wichita ordinances], the district court could not have determined that Fisher operated a
'vehicle' that was covered under the narrower definition found in K.S.A. 8-1485 and
made illegal to drive while intoxicated under K.S.A. 8-1567." State v. Fisher, No.
115,277, 2017 WL 2021526, at *5 (Kan. App. 2017) (unpublished opinion). As a result,
the panel vacated Fisher's sentence and ordered remand for resentencing.

This court granted the State's petition for review.

DISCUSSION

K.S.A. 2017 Supp. 8-1567(i)(1) establishes the criteria for determining whether a
prior DUI conviction may be counted for determining whether a new DUI conviction is a
first, second, third, fourth, or subsequent DUI conviction. Convictions for a "violation of
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an ordinance of any city . . . which prohibits the acts that [K.S.A. 8-1567] prohibits" are
counted as prior DUIs.

Our decision today in Gensler, 308 Kan. at __, slip op. at 15, holds that a prior
municipal DUI conviction under the version of W.M.O. 11.38.150 in effect at the time of
Fisher's conviction does not count as a prior DUI under K.S.A. 2017 Supp. 8-1567(i)(1),
because the ordinance defines "vehicle" more broadly than the state statute and therefore
prohibits a broader range of conduct. The broader definition means that the Wichita
ordinance does not prohibit the acts that K.S.A. 2017 Supp. 8-1567 prohibits.

Gensler dictates the outcome of this case and compels a decision in Fisher's favor.
Fisher's 2014 Wichita DUI cannot be used for sentencing purposes for his current DUI
prosecuted under K.S.A. 2017 Supp. 8-1567.

CONCLUSION

We affirm the Court of Appeals decision vacating Fisher's sentence and remanding
the case for resentencing.

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STEGALL, J., dissenting: For the reasons set forth in my dissent in State v.
Gensler, 308 Kan. __, __ P.3d __ (No. 112,523, this day decided), I dissent.