State v. Meyer

338 P.3d 22 (Table)

STATE of Kansas, Appellee

v.Andrew Robert MEYER, Appellant.

105,226.

Court of Appeals of Kansas.

Nov. 14, 2014.

Review Denied July 22, 2015.

Lydia Krebs, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., GREEN and BUSER, JJ.

MEMORANDUM OPINION

PER CURIAM.

Andrew Robert Meyer was convicted of a third-offense driving under the influence (DUI) felony. Before sentencing, Myer objected to his criminal history score and challenged several of his previous misdemeanor DUI convictions as unlawful. The trial court counted two of his prior misdemeanor DUI convictions but excluded the other for sentence enhancement purposes. On appeal, Meyer argues that the trial court erred when it failed to exclude one of the other misdemeanor DUI convictions. Specifically, Meyer contends that his attorney for that conviction pled guilty for him in his absence and without his permission or authority. Because we find no merit in this contention, we affirm.

On October 14, 2009, Meyer was charged with DUI. Because Meyer had two or more previous DUI convictions, he was charged with a nongrid, nonperson felony in violation of K.S.A.2008 Supp. 8–1567. In addition, the complaint charged Meyer with driving while his driving privileges had been revoked or suspended. On April 29, 2010, Meyer entered into a plea agreement with the State. Meyer agreed to plead guilty to felony DUI. In exchange for Meyer's plea, the State agreed to dismiss Count II—the driving while revoked or suspended charge—and agreed to recommend that Meyer receive probation. Meyer pled guilty to the felony DUI charge that same day.

Before sentencing, Meyer objected to entries 1, 2, and 6 in his presentence investigation (PSI) report. In the PSI, entries 1 and 2 were listed as previous DUI convictions and entry 6 was listed as an “attempted DUI diversion.” According to Meyer, entries 1, 2, and 6 could not be used to enhance his sentence for the following reasons:

“[Meyer] objects to entries 1 and 2 on the Pre–Sentence Investigation because the State cannot prove that the defendant waived counsel or was represented by counsel as required by State v. Youngblood, 288 Kan. 659 (2009).

“[Meyer] objects to entry 6 ‘attempted DUI diversion’ on the Pre–Sentence Investigation because he was never placed on diversion, revoked off of diversion, or convicted of the offense listed. K.S.A. 8–1567(o)(1) defines a prior conviction as ‘entering into a diversion agreement,’ therefore an ‘attempted’ dui diversion is excluded as a prior conviction by the plain language of the statute. [Meyer] further objects because the State cannot prove that the defendant waived counsel or was represented by counsel as required by [Youngblood ].”

The trial court conducted a hearing for Meyer's objections on September 2, 2010. Meyer testified that he was not present when his defense counsel entered a guilty plea for entry 6. Moreover, Meyer testified that he never served any jail time, never paid a fine, and never paid court costs for entry 6. Meyer testified that he assumed the case had been dismissed because the arresting officer “had got in legal trouble of his own.”

The State did not cross-examine Meyer or call any witnesses at the hearing. Instead, the State proffered the journal entry of judgment for entry 6. The journal entry of judgment stated that Meyer had pled guilty to DUI on October 2, 2000. In addition, the journal entry expressly stated that Meyer appeared “in person and by and through counsel, Stephen T. Ariagno.”

Following the conclusion of the evidence and the arguments of the parties, the trial court decided to count entry 6 as a previous DUI conviction. Although the trial court counted entry 6 as a prior DUI conviction for sentencing purposes, the trial court agreed with defense counsel that entry 1 should not be counted as a previous DUI conviction. Based on the two prior DUI convictions that were counted and Meyer's most recent DUI offense, the trial court sentenced Meyer as a third-offender DUI felon.

The trial court agreed to follow the parties' plea agreement. Accordingly, Meyer was granted probation with an underlying jail sentence of 360 days.

When this case originally came before our court, we dismissed it based on State v. Thorpe, 36 Kan.App.2d 475, 141 P.3d 521, rev. denied 282 Kan. 796 (2006). Meyer appealed our dismissal. Our Supreme Court subsequently granted his petition for review, vacated our previous dismissal, and remanded the case to this court for consideration in light of State v. Key, 298 Kan. 315, 312 P.3d 355 (2013).

Did the Trial Court Err in Counting One of Meyer's Previous DUI Convictions for Sentencing Enhancing Purposes?

Meyer's sole argument on appeal is that the trial court erred in counting one of his previous misdemeanor DUI convictions—which was labeled as an attempted DUI diversion in the PSI—to enhance his sentence. Specifically, Meyer maintains that because he “had a right, under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, to be present at the plea hearing, his absence at the hearing rendered the conviction unconstitutional, and, thus, unusable for the purpose of elevating his conviction and increasing his sentence in the present case.” On the other hand, the State argues that Meyer's appellate argument is an impermissible collateral attack on his previous conviction.

Under Kansas law, a defendant charged with felony DUI may challenge the validity of a prior misdemeanor DUI—used to classify the severity level of the current charge or enhance the sentence following conviction on the current charge—before the trial court. Key, 298 Kan. 315, Syl. ¶ 1. But once a defendant pleads guilty or no contest to the felony, he or she is deemed to have surrendered the right to appeal the conviction and may appeal the sentence only under limited circumstances. See 298 Kan. at 321–23.

In other words, if a defendant pleads guilty or no contest to the charge and does not file an unsuccessful motion to withdraw the plea before the trial court, then appellate “jurisdiction is limited to a review of the sentence pronounced in the felony case.” State v.. Key, 50 Kan.App.2d 137, 141, 323 P.3d 174 (2014), petition for rev. filed May 16, 2014. To properly challenge a prior conviction for sentencing enhancement purposes, “the defendant must lodge an objection at sentencing. If successful, the felony conviction will not be erased, only the enhanced felony sentence. At this point, any attempts to set aside the conviction would have to be raised through a timely K.S.A. 60–1507 motion.” Key, 50 Kan.App.2d at 141 (citing Key, 298 Kan. at 323 ).

Because Meyer entered a plea of guilty to felony DUI, he cannot challenge his...