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108902
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No. 108,902
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellant/Cross-appellee,
v.
SHERRY K. HERMAN,
Appellee/Cross-appellant.
SYLLABUS BY THE COURT
1.
The statutory provisions and rules relating to appeals by the State based on a
question reserved under K.S.A. 2013 Supp. 22-3602(b)(3) and cross-appeals by a
defendant therefrom are stated and applied.
2.
The language in K.S.A. 2010 Supp. 8-1567(o)(2) relating to what constitutes a
prior conviction in a DUI prosecution was abrogated, deleted, and amended by the 2012
Kansas Legislature. See K.S.A. 2013 Supp. 8-1567(i)(3).
3.
An opinion by this court at this time on the legal effect K.S.A. 2010 Supp. 8-
1567(o)(2) would be (1) based on repealed language, (2) unlikely to govern any existing
case, (3) in effect an advisory opinion of only academic interest, and (4) not a matter of
statewide interest important to the correct and uniform administration of criminal law in
Kansas.
2
4.
When a question reserved by the State and presented to an appellate court is no
longer of statewide interest, the State's appeal must be dismissed.
5.
K.S.A. 22-3606 provides: "Except as otherwise provided . . . , the statutes and
rules governing procedure on appeals to an appellate court in civil cases shall apply to
and govern appeals to an appellate court in criminal cases."
6.
K.S.A. 2013 Supp. 60-2103(h) states: "When notice of appeal has been served in
a case and the appellee desires to have a review of rulings and decisions of which such
appellee complains, the appellee shall, within 21 days after the notice of appeal has been
served on such appellee and filed with the clerk of the trial court, give notice of such
appellee's cross-appeal."
7.
The right to cross-appeal is a part of the general statutory right of appeal in both
civil and criminal cases.
8.
The provisions of K.S.A. 22-3606 authorize a criminal defendant facing an appeal
by the State to file a cross-appeal as allowed under K.S.A. 2013 Supp. 60-2103(h).
9.
Under the facts in this case, the appellee's cross-appeal was timely filed and we
have jurisdiction over the issues the cross-appeal raises.
3
10.
Appellate review of the district court's ruling on a motion to suppress is bifurcated.
The district court's findings are extended deference and reversed only when they are not
supported by substantial competent evidence. The ultimate legal conclusion regarding
suppression based on those facts is subject to unlimited review.
11.
Probable cause is the reasonable belief that a specific crime has been or is being
committed and that the defendant committed the crime. Existence of probable cause must
be determined by consideration of the information and fair inferences therefrom known to
the officer at the time of the arrest. Probable cause is determined by evaluating the
totality of the circumstances. As in other totality of the circumstance tests, there is no
rigid application of factors and courts should not merely count the facts or factors that
support one side of the determination or the other.
12.
Under the specific facts of this case, we hold there was substantial competent
evidence to establish probable cause for the defendant's arrest for DUI under K.S.A. 2010
Supp. 8-1567.
13.
K.S.A. 2011 Supp. 8-1567(j)(3) which became effective July 1, 2011, limits the
prior convictions used to calculate the conviction level and the sentencing penalty for
DUI convictions to those occurring on or after July 1, 2001, is not to be applied
retroactively, and applies only to DUI violations committed on or after the 2011 effective
date of the statutory amendment.
4
14.
K.S.A. 2011 Supp. 8-1567(j)(3) does not apply to the appellee's 1991 DUI
diversion agreement which was correctly counted as a prior conviction in determining the
conviction level and sentencing penalty for appellee's current DUI conviction.
Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed May 16, 2014.
Appeal dismissed and cross-appeal affirmed.
Michael C. Duma and Christopher Mann, assistant district attorneys, Jerome A. Gorman, district
attorney, and Derek Schmidt, attorney general, for appellant/cross-appellee.
Edward C. Gillette and Grant M. Reichert, of Gillette Law Firm, P.A., of Mission, for
appellee/cross-appellant.
Before PIERRON, P.J., POWELL, J., and LARSON, S.J.
LARSON, J.: The State of Kansas appeals on a question reserved the district court's
determination that Sherry Herman's 2004 conviction under Mo. Rev. Stat. (2003)
§ 577.010 for driving while intoxicated could not be counted as a prior conviction under
Kansas law in determining the penalty for Herman's current conviction for driving under
the influence of alcohol (DUI) under K.S.A. 2010 Supp. 8-1567.
Herman cross-appeals the district court's ruling on the suppression motion she
filed, which was denied. She also argues the district court erred in refusing to apply the
"look-back" provisions of K.S.A. 2011 Supp. 8-1567(j)(3) to her case and, therefore,
improperly included a 1991 diversion for DUI in the sentence/penalty determination for
her current DUI conviction.
5
We deny the State's appeal because the question reserved is not an issue of
statewide interest important to the correct and uniform administration of criminal law in
Kansas.
We accept jurisdiction of Herman's cross-appeal but hold probable cause existed
to arrest Herman for violation of K.S.A. 2010 Supp. 8-1567. And, the district court
correctly refused to give retroactive effect to the provisions of K.S.A. 2011 Supp. 8-
1567(j)(3) limiting prior convictions to those occurring on or after July 1, 2001.
FACTUAL BACKGROUND AND LEGAL PROCEEDINGS
At approximately 1:30 a.m. on March 11, 2011, Kansas City Police Officer
Kenneth Garrett observed a vehicle speeding on Kaw Drive. Pulling behind the vehicle,
Garrett clocked the vehicle moving at 62 mph in a 45-mph zone. He also observed the
vehicle drift from side to side within its lane, although the vehicle did not leave the lane
of traffic. Garrett activated his emergency lights to stop the vehicle. The vehicle traveled
an additional 2 or 3 blocks before stopping, but Garrett attributed the driver's delay as an
attempt to find a safe place to stop.
After the vehicle stopped, Garrett contacted the driver, later identified as Herman;
he noted that Herman's eyes were glazed, bloodshot, and watery. When asked for her
license and registration, Herman acted slowly and uncertainly. Garrett asked Herman
whether she had been drinking and she admitted that she had consumed one drink.
Garrett detected a strong odor of alcohol from Herman's person when she spoke.
Herman's speech was thick and slurred.
Garrett requested Herman to exit her car. She complied with difficulty. Garrett
performed the horizontal gaze nystagmus (HGN) test on Herman. Garrett asked Herman
to perform the one-leg-stand test. Herman declined, stating that she would be unable to
6
perform the test because she was not coordinated. Garrett decided not to pursue the walk-
and-turn test because there was no good line to use, Herman was wearing high heels, and
she claimed to lack coordination. Garrett then asked Herman to submit to a preliminary
breath test (PBT), advising her that she could refuse but would then be subject to a fine
and arrest. Herman took the PBT. The results indicated a breath-alcohol concentration
above .08. Garrett arrested Herman for DUI.
Before driving to the jail, Garrett went to Herman's vehicle to retrieve her purse
and discovered a QuikTrip cup containing a mixed drink and a half-full bottle of vodka.
Garrett transported Herman to the Wyandotte County Jail where he reviewed the implied
consent advisory with her, conducted the 20-minute deprivation period, and properly
administered the Intoxilyzer breath test. The test result demonstrated a breath-alcohol
concentration of .128 grams of alcohol per 210 liters of breath.
The State charged Herman with DUI (fourth or subsequent, nongrid, nonperson
felony), transportation of an open container, and speeding.
Herman moved to suppress the results of both the PBT and the Intoxilyzer
evidentiary breath test. After a hearing, the district court suppressed the PBT results but
found sufficient evidence to support probable cause to arrest for DUI and, therefore,
refused to suppress the evidentiary breath test results.
The case went to a bench trial on the evidence presented at the preliminary
hearing, the videos of the traffic stop, and the evidentiary breath test at the jail. The
district court convicted Herman of all three charges.
At sentencing on October 11, 2012, the State presented evidence of three prior
alcohol-related convictions; a 1991 diversion from a Kansas DUI charge (No. 91 TR
1118), a 1996 municipal court of Kansas City, Kansas, conviction of DUI citation (No.
7
2091621), and a 2004 State of Missouri conviction for driving while intoxicated in
violation of Mo. Rev. Stat. § 577.010 (No. 03 CR 84580). Herman challenged by prior
motion, responded to by the State, the inclusion of these three prior convictions as a part
of her criminal history.
The district court excluded the 1996 municipal court conviction because Herman
was clearly not represented by legal counsel during the legal proceedings. The court also
excluded the 2004 Missouri conviction for driving while intoxicated, holding Mo. Rev.
Stat. § 577.010 was not a comparable offense to the Kansas DUI statute, K.S.A. 2010
Supp. 8-1567. The court rejected Herman's request for retroactive application of K.S.A.
2011 Supp. 8-1567(j)(3) and included the 1991 DUI diversion in her criminal history
"prior convictions" calculation.
Accordingly, after excluding the 1996 and 2004 convictions, the district court
concluded that Herman's current DUI conviction should be counted as her second, a class
A, nonperson misdemeanor under K.S.A. 2010 Supp. 8-1567(e). The court imposed 12
months' probation, including 20 days' jail time and a $1,500 fine. Herman was ordered to
pay a $200 fine for transporting an open container and a $100 fine for speeding.
On October 22, 2012, the State filed a notice of appeal based on a question
reserved pursuant to K.S.A. 2013 Supp. 22-3602(b)(3). Previously, upon learning of the
court's ruling on the prior convictions issue, the State informed the court and the
defendant that it intended to appeal.
The State's notice of appeal also states it appeals "from a final order of the lower
court made on October 11, 2012, granting the defendant's motion objecting to the use of a
prior Missouri DUI conviction in determining whether the defendant would be sentenced
as a first, second, third, fourth or subsequent offender under K.S.A. 8-1567." This ruling
is in effect the same legal question as that appealed from by the State as a question
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reserved under K.S.A. 2013 Supp. 22-3602(b)(3) and will be considered by our panel as
such.
On November 22, 2012, Herman filed a notice of cross-appeal, stating it was filed
"pursuant to Kan. Sup. Ct. Rule 2.02; K.S.A. 22-3606; & K.S.A. 60-2103(h)." The notice
specifically stated the defendant cross-appeals the following issues:
"(1) [T]he failure to sustain Defendant's objections to prior convictions occurring prior to
July 1, 2001 for use in sentencing; (2) the denial of Defendant's motion to suppress based
on lack of probable cause to arrest; (3) the denial of Defendant's motion in limine to
prohibit admission of evidential breath test and the consideration of such evidence; and
(4) the conviction of Defendant."
ANALYSIS OF THE STATE'S APPEAL
The State's suggested issue on appeal is:
The district court committed error when it refused to count Herman's prior
Missouri conviction for violation of Mo. Rev. Stat. § 577.010(a) in determining whether
Herman was a first, second, third, fourth, or subsequent offender under K.S.A. 2010
Supp. 8-1567(o)(1) and (2).
Because of the deletion in 2012 of the precise statutory language upon which this
question reserved appeal is predicated, the issue we must first consider is:
Is the answer to a question reserved still a matter of statewide interest important
to the correct and uniform administration of criminal law in Kansas when it (1) would be
based on language that has been repealed; (2) would be unlikely to govern any currently
pending matter; (3) would, in effect, be an advisory opinion; (4) would only be of
academic interest; and (5) would not provide helpful precedent?
9
Our issues on appeal involve jurisdiction and statutory construction. Whether
jurisdiction exists is a question of law over which our scope of review is unlimited. State
v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012). Likewise, interpretation of a statute is
a question of law over which appellate courts have unlimited review. State v. Dale, 293
Kan. 660, 662, 267 P.3d 743 (2011).
The right to appeal is entirely statutory and is not contained in the United States or
Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have
jurisdiction to entertain an appeal only if it is taken in the manner prescribed by statute.
State v. J.D.H., 48 Kan. App. 2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251
(2013). An appellate court has a duty to question jurisdiction on its own initiative. When
the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss
the appeal. 48 Kan. App. 2d at 458.
The State's authority to appeal in criminal cases is limited by statute. An appeal to
this court may be taken by the prosecution as a matter of right after a final judgment in
the district court in the following cases:
"(1) From an order dismissing a complaint, information or indictment;
"(2) from an order arresting judgment;
"(3) upon a question reserved by the prosecution; or
"(4) upon an order granting a new trial in any case involving a class A or B
felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid
crime." K.S.A. 2013 Supp. 22-3602(b).
We do not reach the issue of whether the State could have appealed under K.S.A.
22-3504 as it was not raised on appeal.
10
We are taught by State v. Tremble, 279 Kan. 391, Syl. ¶ 1, 109 P.3d 1188 (2005),
that
"[q]uestions reserved by the State in a criminal prosecution, under K.S.A. 2003
Supp. 22-3602(b)(3), will not be entertained on appeal merely to demonstrate whether
error has been committed by the trial court. Generally, this court has accepted appeals on
questions reserved by the State where the appeals involve issues of statewide interest
important to the correct and uniform administration of the criminal law and the
interpretation of statutes. We have uniformly declined to entertain questions reserved in
which the resolution of the question would not provide helpful precedent."
Included in the instructive Supreme Court case of Berreth, which commented in
detail on numerous cases where an appeal was sought on a question reserved, is the
following: "To state it clearly and simply, an appellate court's answer to a State's
question reserved has no effect on the criminal defendant in the underlying case.
[Citations omitted.]" 294 Kan. at 123. Berreth further sets forth the rules that the State
cannot expand its elected statutory basis for the appeal and the appellate court cannot sua
sponte select the jurisdictional basis for an appeal by the State. 294 Kan. at 116-17.
With the rules for appeals by the State set forth, we turn to the State's arguments as
to the exclusion of Herman's prior Missouri conviction in determining the conviction
level of her current DUI conviction.
The 2004 Missouri conviction was for "operat[ing] a motor vehicle in an
intoxicated or drugged condition." Mo. Rev. Stat. § 577.010. The State argues this
conviction should have been determined to be a prior conviction and used to determine
the conviction level and penalty of Herman's current Kansas DUI offense.
11
In Kansas, the State may obtain a DUI conviction mainly by one of two methods
(others do exist but are not applicable here): (1) establish the driver operated or
attempted to operate a motor vehicle when the driver's blood- or breath-alcohol
concentration equals or exceeds .08, or (2) establish that the driver operated or attempted
to operate a motor vehicle under the influence of alcohol or drugs to an extent that the
person was incapable of safely operating the vehicle. K.S.A. 2010 Supp. 8-1567(a)(1),
(3).
K.S.A. 2010 Supp. 8-1567 not only establishes the elements of the Kansas DUI
offense but also sets the penalties for the offense. Based on the number of previous
offenses, the statute provides a graduated penalty scheme. See K.S.A. 2010 Supp. 8-
1567(d)-(g). For purposes of this appeal, K.S.A. 2010 Supp. 8-1567(o) defines what
convictions are to be used to assess the proper penalty.
"(o) For the purpose of determining whether a conviction is a first, second, third,
fourth or subsequent conviction in sentencing under this section:
(1) 'Conviction' includes being convicted of a violation of this section or entering
into a diversion agreement in lieu of further criminal proceedings on a complaint alleging
a violation of this section;
(2) 'conviction' includes being convicted of a violation of a law of another state
or 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 in a case alleging a violation of such law, ordinance or resolution;
(3) any convictions occurring during a person's lifetime shall be taken into
account when determining the sentence to be imposed for a first, second, third, fourth or
subsequent offender." K.S.A. 2010 Supp. 8-1567(o)(1)-(3).
K.S.A. 2011 Supp. 8-1567(j)(2) contains the same language as K.S.A. 2010 Supp.
8-1567(o)(2), with "'conviction' includ[ing] being convicted of a violation of a law of
another state . . . which prohibits the acts that this section prohibits . . . ."
12
The language was changed in K.S.A. 2011 Supp. 8-1567(j)(3) to delete the prior
language in K.S.A. 2010 Supp. 8-1567(o)(3) that "any conviction occurring during a
person's lifetime shall be taken into account when determining the sentence to be
imposed . . ." to the 2011 provision, which states: "(3) only convictions occurring on or
after July 1, 2001, shall be taken into account when determining the sentence to be
imposed for a first, second, third, fourth or subsequent offender." K.S.A. 2011 Supp. 8-
1567(j)(3).
While the language in 2010 and 2011 remains the same as to what constitutes an
out-of-state offender, these provisions were completely abrogated and deleted by the
2012 Kansas Legislature in the following manner:
"(j) (i) For the purpose of determining whether a conviction is a first, second,
third, fourth or subsequent conviction in sentencing under this section:
(1) 'Conviction' includes being convicted of a violation of this section or entering
into a diversion agreement in lieu of further criminal proceedings on a complaint alleging
a violation of this section;
(2) 'conviction' includes being convicted of a violation of a law of another state
or 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 in a case alleging a violation of such law, ordinance or resolution;
(3) only convictions occurring on or after July 1, 2001, shall be taken into
account when determining the sentence to be imposed for a first, second, third, fourth or
subsequent offender;
(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, 2001. 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;
13
(2) any convictions for a violation of the following sections occurring during a
person's lifetime shall be taken into account: (A) Refusing to submit to a test to
determine the presence of alcohol or drugs, section 2, and amendments thereto; (B)
driving a commercial motor vehicle under the influence, K.S.A. 8-2,144, and amendments
thereto; (c) operating a vessel under the influence of alcohol or drugs, K.S.A. 32-1131,
and amendments thereto; (D) involuntary manslaughter while driving under the influence
of alcohol or drugs, K.S.A. 21-3442, prior to its repeal, or subsection (a)(3) of K.S.A.
2011 Supp. 21-5405, and amendments thereto; and (E) aggravated vehicular homicide,
K.S.A. 21-3405a, prior to its repeal, or vehicular battery, K.S.A. 21-3405b, prior to its
repeal, if the crime was committed while committing a violation of K.S.A. 8-1567, and
amendments thereto;
(3) 'conviction' includes: (A) Entering into a diversion agreement in lieu of
further criminal proceedings on a complaint alleging a violation of a crime described in
subsection (i)(2); (B) conviction of a violation of an ordinance of a city in this state, a
resolution of a county in this state or any law of another state which would constitute a
crime described in subsection (i)(1) or (i)(2); and (C) receiving punishment under the
uniform code of military justice or Kansas code of military justice for an act which was
committed on a military reservation and which would constitute a crime described in
subsection (i)(1) or (i)(2) if committed off a military reservation in this state;
(4) multiple convictions of any crime described in subsection (i)(1) or (i)(2)
arising from the same arrest shall only be counted as one conviction." L. 2012, ch. 172,
sec. 19; see K.S.A. 2012 Supp. 8-1567(i)(1)-(4).
The 2013 Kansas Legislature made no change in the above provision except to add
the following language to K.S.A. 2013 Supp. 8-1567(i)(2): "(E) aggravated battery as
described in subsection (b)(3) of K.S.A. 2012 Supp. 21-5413 and amendments thereto,"
and renumber the prior subsection (E) to (F). L. 2013, ch. 122, sec. 6.
It is clear that an opinion by this panel at this time on the legal effect of K.S.A.
2010 Supp. 8-1567(o)(2) would not have any binding precedential effect on the different
language as to what constitutes a "conviction" from another state as is now set forth in
K.S.A. 2013 Supp. 8-1567(i)(3).
14
Based on the rules previously set forth and specifically enumerated in Berreth, an
answer by this panel to the question reserved would have no effect on Herman's
conviction and sentence.
And, although the applicable 2012 amendment was in existence when the State's
brief was filed on February 14, 2013, there was no showing that the requested opinion
would govern any then existing case or cases.
Any opinion that we might render on the question reserved might be of academic
interest but would be advisory only. Our long-time general rule is that we do not render
advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012).
With the question reserved presented to us no longer of statewide interest because
of the amended provisions of K.S.A. 2012 Supp. 8-1567(i)(3), the State's appeal must be
dismissed. See Berreth, 294 Kan. at 122-23 (relying in part on In re E.F., 41 Kan. App.
2d 860, 861-62, 205 P.3d 787 [2009]).
The holding we reach on this issue does not suggest that difficult legal questions
do not exist as to what convictions from another state, ordinances of a city, or resolutions
of a county count as convictions in a Kansas DUI prosecution of a violation under the
applicable version of K.S.A. 8-1567. This is an area which would benefit from legislative
clarification.
15
ANALYSIS OF HERMAN'S CROSS-APPEAL
Does jurisdiction exist to consider Herman's cross-appeal?
The State filed its notice of appeal on October 22, 2012, within 14 days of
sentencing on October 11, 2012. Herman did not file a notice of appeal within 14 days of
sentencing. But, she filed her notice of cross-appeal within 21 days of the State's filing.
Because the Kansas Code of Criminal Procedure does not provide a precise
mechanism for cross-appeals in criminal cases, our court issued a show cause order on
November 28, 2012, as to why the cross-appeal should not be dismissed. Both parties
responded. We provisionally retained jurisdiction, ordering the parties to brief the
jurisdictional question.
As was earlier stated, the right to appeal is entirely statutory and is not contained
in the United States or Kansas Constitutions. Subject to limited exceptions, Kansas
appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the
manner prescribed by statutes. J.D.H., 48 Kan. App. 2d at 458.
An appellate court may not properly exercise jurisdiction over an appeal that has
not been taken in conformity with that statutory grant. An appellate court has the duty to
question its jurisdiction on its own initiative when it appears to lack jurisdiction. State v.
Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008).
Appellate jurisdiction in criminal cases is granted by K.S.A. 22-3601 et seq.
K.S.A. 2013 Supp. 22-3602(a) provides:
16
"[A]n appeal to the appellate court having jurisdiction of the appeal may be taken by the
defendant as a matter of right from any judgment against the defendant in the district
court and upon appeal any decision of the district court or intermediate court made in the
progress of the case may be reviewed."
However, K.S.A. 2013 Supp. 22-3608(c) states: "For crimes committed on or
after July 1, 1993, the defendant shall have 14 days after the judgment of the district court
to appeal."
K.S.A. 22-3606 provides: "Except as otherwise provided by statute or rule of the
supreme court, the statutes and rules governing procedure on appeals to an appellate court
in civil cases shall apply to and govern appeals to an appellate court in criminal cases."
There is a specific provision in K.S.A. 2013 Supp. 60-2103(h) governing cross-
appeals which reads: "When notice of appeal has been served in a case and the appellee
desires to have a review of rulings and decisions of which such appellee complains, the
appellee shall, within 21 days after the notice of appeal has been served on such appellee
and filed with the clerk of the trial court, give notice of such appellee's cross-appeal."
The interaction of these various provisions present a question of statutory
interpretation over which an appellate court has unlimited review. Dale, 293 Kan. at 662.
The State concedes there is no statute or Supreme Court rule that specifically
addresses a criminal defendant's right to cross-appeal. But, the State contends the
requirement that the criminal defendant must appeal within 14 days under K.S.A. 2013
Supp. 22-3608(c) controls over allowing a defendant to cross-appeal by applying civil
procedure rules as specified by K.S.A. 22-3606.
17
But, as Herman has argued, Kansas courts have implicitly recognized the right to
cross-appeal in criminal proceedings by noting a defendant's failure to take a cross-appeal
of an issue adverse to that party. See State v. Diaz-Ruiz, 42 Kan. App. 2d 325, 330, 211
P.3d 836 (2009) ("Preliminarily, we note that neither defendant cross-appealed the
district court's conclusion that the initial stop was justified based on [trooper's] concerns
that the defendants' ladder was not properly secured. Thus, that issue is not before us on
appeal."); State v. Rupp, 26 Kan. App. 2d 595, 597, 992 P.2d 236 (1999) ("Unfortunately,
for the State, no cross-appeal has been filed, and we are disinclined to consider Rapp's
sentence to be illegal."), rev. denied 269 Kan. 939 (2000).
The use of the term "cross-appeal," however, does not necessarily require the
application of K.S.A. 2013 Supp. 60-2103(h). The reference to cross-appeal in these
cases may only suggest that the defendant could have filed a separate direct appeal from
sentencing but failed to do so. See State v. Hess, 180 Kan. 472, 478, 304 P.2d 474 (1956)
("'This may have merit for the criminal code speaks only of appeals and does not mention
cross-appeals. Let us assume that the State's position is correct.'"). Nevertheless, a few
unpublished decisions of this court have actually cited to K.S.A. 60-2103(h) in a criminal
proceeding, though it is doubtful that the jurisdictional issue was properly presented to
the court in these cases. See State v. McMackin, No. 109,022, 2013 WL 3970210, at *4
(Kan. App. 2013) (unpublished opinion), rev. denied 298 Kan. ___ (February 12, 2014);
State v. Lornes, No. 103,031, 2011 WL 4716338, at *5 (Kan. App. 2011) (unpublished
opinion).
With appellate rights being strictly statutory, decisions of other jurisdictions are of
questionable value. But, Byndom v. State, 344 Ark. 391, 404, 39 S.W.3d 781 (2001),
recognized the use of civil procedure rules to govern cross-appeals in criminal cases even
though criminal procedure rules did not authorize a cross-appeal. Decisions from Florida,
Georgia, Michigan, and Wisconsin are similar, but in People v. Goodfriend, 100 A.D.2d
18
781, 782, 474 N.Y.S.2d 65 (1984), New York refused to consider a criminal defendant's
arguments because the appeals statute provided no mechanism for a cross-appeal.
It would seem that the right to cross-appeal is a part of the general statutory right
of appeal in both civil and criminal cases. But there remains a question as to the time
frame or procedure under which a cross-appeal must be exercised. This question is best
resolved by applying K.S.A. 22-3606 which incorporates the rules of civil procedure into
the criminal appellate procedure. Our Supreme Court referenced other portions of K.S.A.
60-2103 in criminal proceedings under the authority of K.S.A. 22-3606. See State v.
Long, 294 Kan. 939, 940, 281 P.3d 176 (2012) (referencing K.S.A. 60-2103[b] for
content of notice of appeal in a criminal proceeding); Berreth, 294 Kan. at 127-28
(same). It is logical to us that the 21-day time within which a cross-appeal must be filed
under K.S.A. 2013 Supp. 60-2103(h) should be applied in our case.
Despite the State's argument to the contrary, the reasons supporting additional time
to file a cross-appeal are equally applicable to both civil and criminal appeals. Although
the prosecutor in our case had stated the intention to appeal on a question reserved,
Herman may have been willing to accept the district court's ruling and decided that
economics did not justify an appeal. But, once the State's appeal was filed, Herman was
faced with defending the State's appeal, and the filing of a cross-appeal to challenge
adverse rulings in the district court became the obvious procedure to follow.
We hold the provisions of K.S.A. 22-3606 authorize a criminal defendant facing
an appeal by the State to file a cross-appeal as allowed under K.S.A. 2013 Supp. 60-
2103(h). Herman's cross-appeal filed within 21 days of the State's notice of appeal
provides us with jurisdiction over the cross-appeal.
We further note that K.S.A. 2013 Supp. 22-3602(c) states: "Procedures for
appeals by the prosecution enumerated in subsection (b) shall be as provided in supreme
19
court rules." A subsection (b) appeal is exactly what we are considering in this case.
However, our search of the Supreme Court rules has not revealed the existence of any
such rules, nor have any been pointed out to us by counsel. The absence of any such rules
suggested by subsection (c) does not have any effect on the decision made above.
With jurisdiction established, we reach and consider the two issues Herman raises
on her cross-appeal.
Did the district court err in refusing to suppress the results of Herman's Intoxilyzer test
because Officer Garrett lacked probable cause to arrest her for DUI?
Herman contends the district court committed reversible error in refusing to grant
her motion to suppress the evidentiary breath test results. She argues that without the
preliminary breath test results, Officer Garrett lacked probable cause to arrest her for
DUI.
Appellate review of the district court's ruling on a motion to suppress is bifurcated.
The district court's findings are extended deference and reversed only when they are not
supported by substantial competent evidence. The ultimate legal conclusion regarding
suppression based on those facts is subject to unlimited review. State v. Martinez, 296
Kan. 482, 485, 293 P.3d 718 (2013).
The facts supporting the probable cause determination are based on the testimony
of Garrett and the in-car video of the traffic stop. As a result, there is little dispute
regarding the underlying facts. Herman was stopped for speeding. When Garrett
approached the vehicle, he noted Herman's eyes were glazed, bloodshot, and watery.
When Herman spoke, her speech was thick and slurred. Her movements were slow and
uncertain while she sought to produce her license and proof of insurance. Garrett detected
a strong odor of alcohol coming from her person. Herman admitted to having one drink.
20
When asked, Herman refused the one field sobriety test Garrett offered, claiming she was
not coordinated. Garrett did not pursue the walk-and-turn test because Herman was
wearing high heels and there was no good line to use. Garrett requested Herman to
submit to a preliminary breath test, and Herman complied.
On appeal, Herman cites Sloop v. Kansas Department of Revenue, 296 Kan. 13,
290 P.3d 555 (2012), and City of Norton v. Wonderly, 38 Kan. App. 2d 797, 172 P.3d
1205 (2007), rev. denied 286 Kan. 1176 (2008), as dispositive of the probable cause
determination in this case. Both are distinguishable from our case.
In Sloop, the court noted that the probable cause determination occurs at the time
of arrest. Sloop was stopped for a tag light violation, not a driving violation such as
speeding. As the officer followed Sloop for 8 or 10 blocks, Sloop committed no traffic
violations. Sloop did not slur his speech, did not fumble for his license, and did not have
difficulty exiting his vehicle. The court refused to consider the results of the field sobriety
tests because they occurred after the arrest. 296 Kan. at 23.
Similarly, in Wonderly, the field sobriety tests were not conducted until after the
arrest. Prior to the arrest, the officer had information from an identified caller that
Wonderly's truck was "swerving, spinning its tires, and traveling at a high rate of speed."
38 Kan. App. 2d at 799. But when the officer pulled behind the identified truck and
followed it for 3 minutes, he observed no traffic infractions. Wonderly did not fumble for
his license and did not stumble when exiting his truck. Wonderly's speech was not
slurred. This court concluded that these circumstances did not constitute probable cause
to arrest for DUI and noted that the officer apparently believed further information was
necessary because he testified that he relied on the circumstances at the stop and
Wonderly's performance on the sobriety tests at the sheriff's department to form probable
cause to request an evidentiary breath test. 38 Kan. App. 2d at 808.
21
The Sloop opinion, 296 Kan. at 20, quotes from Allen v. Kansas Dept. of Revenue,
292 Kan. 653, 656-57, 256 P.3d 845 (2011), for our definition of probable cause:
"'Probable cause is the reasonable belief that a specific crime has been or is being
committed and that the defendant committed the crime. [Citation omitted.] Existence of
probable cause must be determined by consideration of the information and fair
inferences therefrom, known to the officer at the time of the arrest. [Citation omitted.]
Probable cause is determined by evaluating the totality of the circumstances. [Citation
omitted.] As in other totality of the circumstance tests, there is no rigid application of
factors and courts should not merely count the facts or factors that support one side of the
determination or the other. [Citations omitted.]'"
The facts of our case are more closely analogized to State v. Huff, 33 Kan. App. 2d
942, 111 P.3d 659 (2005), which sustained a conviction (requiring proof beyond a
reasonable doubt) for DUI without breath test results. The facts reported in Huff involved
a sheriff's deputy observing Huff's vehicle traveling 77 mph in a 55-mph zone and
driving onto the shoulder twice. The deputy noted a strong odor of alcohol from Huff
when he contacted him. Huff refused to look at the deputy, and the deputy had difficulty
understanding Huff. Huff spoke with slurred speech. Huff had bloodshot eyes and
fumbled to produce his driver's license. Huff refused to answer when the deputy asked if
he had been drinking. Huff refused to submit to an HGN test and was not asked to
perform any other field sobriety tests. The deputy did acknowledge that Huff had no
difficulty exiting his vehicle or walking to the patrol car after being handcuffed.
In response to Huff's challenge to the sufficiency of the evidence supporting his
conviction for DUI, this court stated: "Viewed in a light most favorable to the State,
Huff's speeding and driving off the roadway, his slurred speech, bloodshot eyes, fumbling
to find his driver's license, and odor of alcohol all form a substantial basis for his
conviction." 33 Kan. App. 2d at 945-46. If these facts were sufficient to support a finding
beyond a reasonable doubt that Huff was under the influence of alcohol to an extent that
22
he was incapable of operating a motor vehicle safely, the facts of our case, which are very
similar, are clearly sufficient to support a probable cause determination, which is a
significantly less stringent evidentiary standard.
Herman argues some of the district court's findings are contradicted by the video.
We do not find this to be so. The findings were primarily based on Officer Garrett's
testimony, and the video is not conclusive. The findings by the district court are amply
supported by substantial competent evidence. Herman's arguments concerning the
evidence essentially asks us to reweigh the evidence, which is not our function. See State
v. Garza, 295 Kan. 326, 335, 286 P.3d 554 (2012); State v. Ackward, 281 Kan. 2, 8, 128
P.3d 382 (2006).
Finally, Herman finds fault with the district court's ruling for its failure to point to
several positive factors in her favor, citing State v. Edgar, 296 Kan. 513, 525, 294 P.3d
251 (2013). The actual dispositive holding of Edgar is:
"When a law enforcement officer instructs a driver that he or she has no right to
refuse a preliminary breath test, the officer has contradicted the statutory provisions that
make a refusal to take the test a traffic infraction under K.S.A. 2010 Supp. 8-1012(d).
This cannot be considered substantial compliance with the statute, nor does it equate to a
failure to give the notice under K.S.A. 2010 Supp. 8-1012(c)." 296 Kan. 513, Syl. ¶ 4.
Edgar's central issue was an appeal from "the denial of his motion to suppress
because the investigating officer lacked reasonable articulable suspicion to request a PBT
and his consent to the PBT was involuntary." 296 Kan. at 519. The Edgar opinion cites to
State v. Pollman, 286 Kan. 881, 190 P.3d 234 (2008), for requiring that the "whole
picture" must be taken into account when evaluating whether there is reasonable
suspicion for requesting a PBT. 286 Kan. at 890." 296 Kan. at 525.
23
Herman translates this language to suggest she should have been given credit in
the district court's findings for her ability to stop her vehicle, use of signals to change
lanes, calm demeanor, and wearing high-heeled shoes. A construction of Edgar to require
the district court to remark on every circumstance of normalcy would lead to lengthy
district court findings. In our case, Herman's argument that such facts should be included
suffers from a logical fallacy. Just because the inability to stop a vehicle properly, the
failure to use turn signals to indicate a lane change, and dramatic mood swings are
potential signs of intoxication; the absence of those factors is not necessarily a sign of
sobriety. Furthermore, the fact that Herman was wearing high heels might provide some
mitigation in poor performance on field sobriety tests involving balance, if she had taken
the tests and failed. But, the video of the stop clearly showed that Herman refused the
tests without referring to her shoes as a reason for the refusal; she simply stated she
lacked coordination. Under these circumstances, the district court was not required to
specifically mention these facts in arriving at its suppression ruling. Herman's argument
lacks persuasive force.
The facts supporting the suppression ruling were based on substantial competent
evidence presented at the suppression hearing. The facts found by the district court were
sufficient to provide probable cause to arrest Herman for DUI. The district court did not
err in refusing to suppress the results from Herman's evidentiary breath test.
Did the district court err in refusing to give retroactive effect to K.S.A. 2011 Supp. 8-
1567(j)(3), limiting prior convictions to those occurring on or after July 1, 2001?
Herman's last issue in this appeal concerns the district court's inclusion of her 1991
diversion in her criminal history for purposes of determining whether her current DUI
conviction constitutes her first, second, third, or fourth DUI conviction.
24
Herman advocates for the application, to her benefit, of K.S.A. 2011 Supp. 8-
1567(j)(3) which became effective July 1, 2012, and limits the prior convictions used to
calculate the conviction level and the sentencing penalty for DUI convictions to those
convictions occurring on or after July 1, 2001.
If the 2011 statutory amendment applies to Herman, the district court should not
have counted her current DUI 1991 diversion and her current conviction would be
considered her first.
We have earlier set forth the statutory provision in issue, but it is as follows: "(3)
only convictions occurring on or after July 1, 2001, shall be taken into account when
determining the sentence to be imposed for a first, second, third, fourth or subsequent
offender." K.S.A. 2011 Supp. 8-1567(j)(3).
Herman raises multiple arguments. She contends the plain language of the
statutory amendment indicated that the amendment should be applied prospectively to
any sentencing occurring after the effective date of the amendment regardless of the date
of the offense. Alternatively, she contends that the statutory amendment should be given
retroactive application because it is procedural in nature, not substantive. She contends
that the statutory amendment, taken in the context of the Act in which it was
promulgated, demonstrates the Kansas Legislature's intent for the change to be applied
retroactively. She contends that failing to apply the amendment retroactively will lead to
an absurd result not intended by the legislature. She further contends that retroactive
application of the amendment does not violate the Ex Post Facto Clause of the United
States Constitution because it does not disadvantage her.
Herman acknowledges that most of these arguments have been resolved against
her in previous decisions by this court. See State v. Reese, 48 Kan. App. 2d 87, 283 P.3d
233 (2012), rev. granted October 1, 2013 (argued to the Supreme Court on January 23,
25
2014). As our Supreme Court's decision will ultimately decide this issue, judicial
economy precludes it from being further discussed here.
We realize Reese is not of precedential value while pending on review by our
Supreme Court, but we are in agreement with and adopt all of its language and reasoning
along with numerous other Court of Appeals decisions reaching the same result. As such,
we hold that K.S.A. 2011 Supp. 8-1567(j)(3) cannot be applied retroactively and applies
only to DUI violations committed on or after the 2011 effective date of the statutory
amendment.
It does not apply to Herman's 1991 diversion which was correctly counted as a
prior conviction in determining the conviction level and sentencing penalty for her DUI
conviction.
In summary, we have jurisdiction over Herman's cross-appeal but affirm the
district court on the two issues she raises.
Appeal dismissed and cross-appeal affirmed.