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STATE v. LARIOS (2018)

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Court of Appeals of Kansas.

STATE of Kansas, Appellee, v. Marco A. LARIOS, Appellant.

No. 115,983

Decided: January 19, 2018

Before Green, P.J., Malone and Atcheson, JJ. C. Ryan Gering, of Hulnick, Stang, Gering & Leavitt, P.A., of Wichita, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

MEMORANDUM OPINION

This appeal presents a single legal issue: Did the Sedgwick County District Court err in relying on Defendant Marco A. Larios' conviction for driving under the influence based on a 2011 violation of the Wichita municipal code to enhance the punishment for his present conviction for driving under the influence in violation of K.S.A. 2013 Supp. 8-1567? The answer is yes. So we reverse the felony conviction, vacate the corresponding punishment imposed on Larios, and remand with directions that he be convicted of misdemeanor DUI for a second offense and sentenced accordingly.

There are no disputed material facts, so the issue is one of law. We owe no deference to the district court's determination. Larios repeatedly challenged the district court's reliance on the Wichita DUI conviction to support the felony charge and sentence in this case. He has properly preserved the issue for appellate review. The record plainly shows the district court reviewed the face of the complaint for the municipal ordinance violation to make a factual determination about the type of vehicle Larios operated.

Several panels of this court have already addressed this precise issue. In light of the Kansas Supreme Court's opinion in City of Wichita v. Hackett, 275 Kan. 848, 853, 69 P.3d 621 (2003), governing the treatment of DUI convictions under the Wichita municipal code as predicate offenses for enhanced punishment under K.S.A. 8-1567, and the United States Supreme Court's opinions in Mathis v. United States, 579 U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed. 2d 604 (2016); Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L.Ed. 2d 438 (2013); and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed. 2d 435 (2000), outlining constitutionally impermissible judicial fact-finding in fashioning punishments for present crimes based on past criminal conduct, the district court violated Larios' right to jury trial and to due process, protected respectively in the Sixth and Fourteenth Amendments to the United States Constitution. The Kansas Supreme Court has recognized and applied the principles drawn from Apprendi and Descamps in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015).

In deciding this case, Judge Green would adhere to the reasoning and result in his majority opinion in State v. Lamone, 54 Kan. App. 2d 180, 399 P.3d 235 (2017), petition for rev. filed July 10, 2017.

In deciding this case, Judge Atcheson would adhere to the reasoning and result in his opinion in State v. Mears, No. 115,278, 2017 WL 1534748 (Kan. App. 2017) (unpublished opinion), rev. granted August 30, 2017.

We, therefore, hold that the district court impermissibly relied on Larios' Wichita municipal conviction in this case. In turn, Larios had only one previous DUI conviction that could be used to enhance the punishment for his conviction in this case. We, therefore, reverse his felony conviction in this case, vacate the sentence imposed, and remand with directions that the district court convict Larios of a misdemeanor DUI for a second offense and sentence him accordingly.

Reversed in part, vacated in part, and remanded with directions.

Per Curiam:

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