NOT DESIGNATED FOR PUBLICATION. No. 112,523 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellee, STACY A. GENSLER, Appellant.

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1 NOT DESIGNATED FOR PUBLICATION No. 112,523 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. STACY A. GENSLER, Appellant. MEMORANDUM OPINION Affirmed. Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed May 6, C. Ryan Gering, of Hulnick, Stang & Rapp, P.A., of Wichita, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee. Before MALONE, C.J., BUSER and BRUNS, JJ. Per Curiam: Stacy A. Gensler appeals his sentence following his conviction of felony driving under the influence (DUI). Gensler argues that the district court erred by counting his two prior municipal court DUI convictions as prior convictions in order to elevate his current offense to a felony. We reject Gensler's argument and affirm the district court's judgment. On December 5, 2013, the State charged Gensler with alternative counts of felony DUI in violation of K.S.A Supp and one count of making an improper 1

2 right turn. The DUI was charged as a felony based on Gensler's 2006 and 2010 Wichita Municipal Court DUI convictions. The district court held a preliminary hearing on February 19, At the hearing, Gensler objected to using his two municipal court convictions to elevate his DUI charge to a felony because, as Gensler argued, the municipal ordinance in question does not prohibit the same acts that are prohibited by K.S.A Supp Specifically, Gensler argued that the ordinance prohibits more conduct than the statute because the definition of vehicle in the ordinance includes bicycles whereas the definition of vehicle in the statute does not include bicycles. Gensler argued that any attempt by the district court to look at the underlying facts of the municipal convictions would constitute judicial factfinding in violation of Descamps v. United States, 570 U.S, 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). The district court continued the preliminary hearing and took the issue under advisement. Both parties filed written arguments with the district court. On February 26, 2014, the district court reconvened the preliminary hearing, overruled Gensler's objection to the use of his prior convictions, and bound him over for trial on the felony DUI charge. On March 19, 2014, Gensler filed a motion to dismiss reasserting his prior arguments and the State filed a written response. On May 19, 2014, the district court held a hearing on Gensler's motion to dismiss and, after hearing arguments of counsel, the district court denied the motion. On June 25, 2014, the district court held a bench trial on stipulated facts. Gensler stipulated that on March 29, 2013, he drove a vehicle in Sedgwick County, Kansas, with a breath alcohol concentration of.182 within 3 hours of driving the vehicle. Gensler also stipulated that the breath test was administered on a machine that the officer believed to be working properly and certified. Based on this stipulation, the district court found 2

3 Gensler guilty of one count of felony DUI and dismissed the alternative count. Gensler also pled guilty to making an improper right turn. The district court held a sentencing hearing on August 26, At the hearing, Gensler again objected to counting his two prior municipal court DUI convictions as prior convictions for purposes of establishing a felony DUI. The district court again rejected Gensler's argument and specifically noted that the traffic citations from the municipal court convictions showed that Gensler was convicted in each case while driving a pickup truck, not a bicycle. The district court sentenced Gensler to 12 months in jail and a fine of $1,750 for the DUI. The district court also imposed a $75 fine for Gensler's improper right turn conviction. Gensler filed a timely notice of appeal. The only issue Gensler raises on appeal is whether his two prior municipal court DUI convictions can be counted as prior convictions for state sentencing purposes under K.S.A Gensler argues that the municipal convictions cannot be counted because K.S.A (i) only allows a municipal conviction to count if the ordinance prohibits the same acts that are prohibited by the statute. As Gensler notes, Wichita ordinance is broader than K.S.A because the ordinance prohibits riding a bicycle while intoxicated, which is not prohibited by the statute. Gensler argues that Descamps does not allow the district court to look at the underlying facts of his prior municipal convictions to determine if they are the same acts prohibited under K.S.A The issue raised in this appeal requires this court to interpret and apply K.S.A Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). The constitutionality of a sentencing statute is also a question of law subject to unlimited appellate review. State v. Hilt, 299 Kan. 176, 202, 322 P.3d 367 (2014). 3

4 The first step in this inquiry is to examine the language of K.S.A Specifically, K.S.A Supp (i) provides in part: "For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section: "(1) Convictions for a violation of this section, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, shall be taken into account, but only convictions or diversions occurring on or after July 1, Nothing in this provision shall be construed as preventing any court from considering any convictions or diversions occurring during the person's lifetime in determining the sentence to be imposed within the limits provided for a first, second, third, fourth, or subsequent offense." (Emphasis added.) This subsection provides that a defendant's municipal court DUI conviction occurring on or after July 1, 2001, may be counted as a prior DUI conviction if the ordinance prohibits the acts that K.S.A prohibits. Thus, we must compare K.S.A and Wichita ordinance K.S.A Supp (a) provides: "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, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A , and amendments thereto, 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; (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 4

5 "(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 (a) provides: "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; "(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 or 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." On their face, these two laws are identical in language and prohibit the same conduct. But as Gensler points out, the definition of "vehicle" under the municipal code differs from the definition under the state code. K.S.A Supp states that "'[v]ehicle' means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except electric personal assistive mobility devices or devices moved by human power or used exclusively upon stationary rails or tracks." (Emphasis added.) Wichita City Code Section states: "'Vehicle' means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks." 5

6 As our Supreme Court recognized in City of Wichita v. Hackett, 275 Kan. 848, , 69 P.3d 621 (2003), these differing definitions make the municipal ordinance broader than state statute because "[o]perating a bicycle while under the influence, though a violation of the city code, is not a DUI under K.S.A " 275 Kan. at 853. Because of this difference, the court in Hackett held that "[s]uch a conviction [of operating a bicycle while under the influence] does not count for state sentencing purposes concerning the instant offense or subsequent offenses." 275 Kan. at 853. However, Hackett does not control whether Gensler's municipal court DUI convictions can be counted because Gensler makes no claim that his municipal court convictions were based on operating a bicycle while under the influence of alcohol. Gensler cites State v. Butler, No. 107,767, 2013 WL (Kan. App. 2013) (unpublished opinion), to support his argument that the Wichita Municipal Court convictions cannot be counted because the municipal ordinance prohibits conduct that is broader than the conduct prohibited by K.S.A In Butler, this court held that the defendant's Texas DUI convictions could not be counted as prior convictions because the Texas statutes were broader and could criminalize more conduct than is prohibited by the Kansas statute WL , at *2-3. At one time the Texas statute prohibited driving while "under the influence of" alcohol, and at another time the statute prohibited driving while "not having the normal use of mental or physical faculties" due to alcohol; the Kansas statute more narrowly prohibited driving under the influence of alcohol when the driver is "incapable of safely driving a vehicle." 2013 WL , at *1. In determining that the prior Texas convictions could not count, the Butler court noted that it was possible that the facts underlying the defendant's Texas convictions would also support a DUI conviction under K.S.A WL , at *3. However, this court determined that the documents the State had furnished regarding the defendant's Texas convictions did not provide the basis for the convictions, and the State 6

7 had the burden to prove that the defendant's prior convictions could be used to enhance his sentence under K.S.A WL , at *3. Here, the State provided the district court with the traffic citations used to convict Gensler in municipal court. One of the citations showed that Gensler was operating a Ford F150 pickup and the other citation showed that he was operating a black Dodge pickup while under the influence of alcohol. Clearly, Gensler was not operating a bicycle as a basis for either of his municipal court convictions. However, Gensler argues that Descamps prohibits the district court from looking to the traffic citations to find that his municipal court convictions were based on the operation of an automobile. Our Supreme Court applied Descamps to Kansas sentencing law in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). Under the analysis in Dickey, a court may use one of two approaches to determine whether a prior conviction may be used for sentencing purposes. The categorical approach applies when a statute that is the basis for a prior conviction only contains a single set of elements. 301 Kan. at Under the categorical approach, the elements of the prior conviction and the current offense are compared, and if the prior conviction's elements are the same as or narrower than those of the current offense, it may be used for sentencing purposes. 301 Kan. at However, if the elements of the prior conviction are broader than those of the current offense, it may not be used for sentencing purposes. 301 Kan. at The modified categorical approach applies when the statute that is the basis for the prior conviction is a divisible statute. 301 Kan. at A statute is divisible when it has multiple, alternative versions of the crime and one of the versions matches the elements of the current offense. 301 Kan. at The modified categorical approach allows a sentencing court, without running afoul of Apprendi, to look beyond the elements of the statute and "examine a limited class of documents to determine 'which of a statute's alternative elements formed the basis of the defendant's prior conviction.' [Citation 7

8 omitted.]" 301 Kan. at Such documents include "charging documents, plea agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well as findings of fact and conclusions of law from a bench trial. [Citation omitted.]" 301 Kan. at Applying the analysis in Dickey to Gensler's case, the Wichita municipal DUI ordinance, including the definition of a vehicle, should be considered a divisible ordinance because a conviction under the ordinance applies either to an automobile or a bicycle, one of which matches a conviction under K.S.A Thus, we apply the modified categorical approach to determine whether a prior conviction may be used for sentencing purposes. Under this approach, Gensler's sentencing judge was permitted to examine the municipal court citations that clearly showed his convictions were based on the operation of motor vehicles rather than a bicycle. This procedure did not constitute impermissible judicial factfinding in violation of Descamps and Apprendi. The district court correctly determined that Gensler's prior DUI convictions under the municipal ordinance were based on the same acts prohibited by K.S.A Therefore, the district court did not err when it counted Gensler's two ordinance convictions as prior convictions for sentencing purposes under K.S.A Affirmed. 8