State v. Portsche

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NOT DESIGNATED FOR PUBLICATION

No. 113,648

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL PORTSCHE,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opinion filed January 13,
2017. Sentence vacated and case remanded with directions.

Dennis J. Stanchik, of Olathe, for appellant.

Andrew Hamline, legal intern, Shawn E. Minihan, assistant district attorney, Stephen M. Howe,
district attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., GREEN and BUSER, JJ.

BUSER, J.: This is an appeal by Michael Portsche of his conviction and sentence
for the felony offense of driving under the influence of alcohol (DUI) for a third time in
violation of K.S.A. 2015 Supp. 8-1567(b)(1)(D). In support of the felony DUI charge and
to prove Portsche's criminal history, the State relied on copies of court records from his
two prior DUI cases.

On appeal, Portsche complains that the district court erred in ruling that the State
had sufficiently proven the existence of the two prior DUI convictions. Portsche seeks to
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reverse his felony DUI conviction or, alternatively, to vacate his felony sentence and
remand for resentencing as a misdemeanor.

As discussed in this opinion, the sentence is vacated, and the case is remanded for
resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2014, Portsche was charged with misdemeanor DUI in Johnson
County, Kansas. Later, an amended complaint was filed charging Portsche with felony
DUI based on two prior DUI convictions, failure to maintain a single lane, and refusal to
take a preliminary breath test. Portsche waived the preliminary hearing and entered pleas
of not guilty to the charges.

Prior to trial, Portsche filed a motion to dismiss the felony DUI charge, arguing
that copies of the records of his prior DUI convictions, which supported the basis for the
felony DUI classification, were not properly certified or authenticated. On August 22,
2014, a hearing was held on Portsche's motion, and the district court denied the motion
based on State v. Tims, 49 Kan. App. 2d 845, 849, 317 P.3d 115 (2014), aff'd in part and
vacated in part on other grounds by State v. Tims, 302 Kan. 536, 355 P.3d 660 (2015).

Portsche waived his right to a jury trial and agreed to a bench trial on stipulated
facts. On December 1, 2014, the district court found Portsche guilty of DUI. The State
dismissed the remaining charges.

After the trial, Portsche filed a motion asking that his DUI conviction be classified
as a misdemeanor and also objecting to his criminal history. He reprised his argument
that the records of his two prior DUI convictions were not properly authenticated.
Portsche also asserted that one record did not show that he had been represented by
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counsel or had waived his right to counsel. After reviewing the exhibits, the district court
ruled the court records memorializing Portsche's two prior DUI convictions were
admissible as evidence. The district court then denied Portsche's motion to classify his
current DUI conviction as a misdemeanor and scheduled the case for sentencing.

At sentencing on February 17, 2015, Portsche renewed his objections and
incorporated his previous motions and arguments. The objections were overruled and
Portsche was sentenced to 12 months' imprisonment. Portsche was granted probation for
12 months after serving 3 days in jail followed by 90 days on house arrest.

Portsche filed a timely appeal.

DENIAL OF MOTION TO DISMISS FELONY DUI CHARGE

For his first issue on appeal, Portsche complains that because the documentary
exhibits admitted by the State to prove his two prior DUI convictions were not properly
admissible as evidence: "[T]he State did not meet its burden of proving the elements of
the Complaint beyond a reasonable doubt and the court should have sustained
[Portsche's] motion to dismiss." The State responds that the district court did not err in
denying his "post-preliminary-hearing motion to dismiss" because Portsche "waived this
claim when he failed to object to the felony designation at the preliminary hearing."

As noted earlier, on June 18, 2014, Portsche waived the preliminary hearing and
entered a plea of not guilty upon his arraignment for the felony crime of DUI. On August
19, 2014, however, Portsche filed a motion to dismiss the felony DUI charge based on
improper authentication of records memorializing his two prior DUI convictions. In
particular, Portsche claimed the State had not provided him with properly certified
records memorializing the two prior DUIs. Portsche also asserted the records were
insufficient to prove his two prior DUI convictions as a sentencing enhancement matter.
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In response, the State argued that Portsche had waived his opportunity to object to
the felony classification of his current DUI charge based on our court's holding in Tims.
In Tims, our court held:

"A defendant charged with felony driving under the influence (DUI) based on
prior DUI convictions who wishes to challenge the felony classification grounds of the
charge should do so at the preliminary hearing. Once a defendant has waived his or her
preliminary hearing, the right to seek dismissal of a DUI charge on felony classification
grounds is also waived. By waiving the preliminary hearing, a defendant consents to a
finding that probable cause existed to establish that a felony was committed." 49 Kan.
App. 2d 845, Syl. ¶ 2.

At the outset, we question Portsche's claim made in his motion that the State had
failed to provide him with appropriate documentation regarding his two prior DUI
convictions. In the ordinary course of criminal litigation, the State would have presented
those documents at the preliminary hearing. But Portsche waived the preliminary hearing
and, as a result, the State was not required to present any evidence regarding the prior
DUI convictions at that time. As a result, the underlying legal basis for Portsche's motion
to dismiss is not apparent.

We conclude that Portsche has failed to show reversible error in the district court's
denial of his motion to dismiss the felony DUI charge.

First, Portsche failed to include a transcript of the hearing on his motion in the
record on appeal. By not providing our court with a transcript of the hearing, we are
unable to review the arguments presented by the parties, and the district court's ruling or
its rationale. Without an essential record, we will presume the district court's ruling was
correct. See State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013) (The party
claiming an error occurred has the burden of designating a record that affirmatively
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shows prejudicial error. Without such a record, an appellate court presumes the action of
the trial court was proper.).

Despite Portsche's failure to include a transcript of the hearing, however, the
district court did make an entry into the court's case file indicating that Portsche's motion
was denied based on Tims. On appeal, without elaboration or complaint, Portsche
acknowledges that "the motion was denied on the basis of the holding of the court in the
first Tims case."

The district court's ruling, predicated on Tims, provides the basis for the second
reason we affirm the district court's denial of the motion to dismiss. Although the district
court denied Portsche's motion based on the procedural grounds that Portsche waived his
right to contest the felony DUI classification by waiving the preliminary hearing,
Portsche does not assert or brief that this procedural ruling was in error or that Tims does
not control this issue. Rather, in his appellant's brief, Portsche simply ignores the
procedural basis for the district court's ruling and only discusses the propriety of the
merits of his argument regarding the inadmissibility of the documents proving his two
prior DUI convictions.

In short, Portsche has not briefed the basis for why the district court's procedural
ruling was in error. He has simply disregarded this ruling and ignored the fact that, as a
consequence, there was no reason for the district court to address the merits of his
argument. An issue not briefed by the appellant is deemed waived and abandoned. State
v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). By not briefing why the district
court's procedural ruling was in error, Portsche has waived and abandoned his first issue
on appeal.



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ENHANCEMENT OF SENTENCE

For his second issue on appeal, Portsche claims the State failed to meet its burden
of proof in establishing his criminal history. In particular, Portsche asserts that the State's
exhibits memorializing his two prior DUI convictions were improperly admitted which
erroneously enhanced his sentence for felony DUI.

After his conviction for DUI in violation of K.S.A. 2015 Supp. 8-1567(b)(1)(D),
Portsche filed a "Motion And Memorandum Supporting Sentencing As A Misdemeanor
DUI And Objection To Criminal History." Once again, Portsche reprised his objections
to the sufficiency of the documents used to show his two prior DUI convictions. The
State did not file a response to this motion.

After reviewing the exhibits, the district court ruled the documents memorializing
Portsche's two prior DUI convictions were admissible in evidence and sufficient to prove
the convictions. The district court then denied Portsche's motion to classify his current
DUI conviction as a misdemeanor and denied his objection to including Portsche's two
prior DUI convictions in his criminal history.

Before we individually analyze the State's exhibits documenting Portsche's prior
DUI convictions, a brief review of Kansas law and our standards of review is in order.

K.S.A. 2015 Supp. 8-1567(a) defines DUI. The offense can be either a
misdemeanor or a nonperson felony. See K.S.A. 2015 Supp. 8-1567(b)(1). If a defendant
has had two prior DUI convictions, one of which occurred in the last 10 years, the third
conviction is a nonperson felony offense. K.S.A. 2015 Supp. 8-1567(b)(1)(D). In State v.
Masterson, 261 Kan. 158, 164, 929 P.2d 127 (1996), our Supreme Court stated that
"proof of a prior conviction is not an element of DUI to be established at trial and need
not be brought out until the sentencing phase."
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Additionally, the interpretation of written instruments, including journal entries, is
a question of law subject to our unlimited review. See State v. Kralik, 32 Kan. App. 2d
182, 183, 80 P.3d 1175 (2003). Similarly, we conduct a de novo interpretation of statutes.
State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S. Ct. 91 (2014).

The State must prove a defendant's disputed criminal history by a preponderance
of the evidence. See K.S.A. 2015 Supp. 21-6814(c); State v. Hughes, 290 Kan. 159, 162,
224 P.3d 1149 (2010). This court's standard of review on appeal is "whether substantial
competent evidence supports the district court's finding that the State has met this
burden." 290 Kan. at 162.

Finally, this issue is predominantly evidentiary in nature. Portsche's principal
complaint, especially with regard to the State's proof of his Kansas City, Missouri, DUI is
that Kansas rules of evidence were not properly applied by the district court. Under these
circumstances, the statutory rules are applied as a matter of law or as an exercise of the
trial court's discretion depending on the applicable rule. State v. Bowen, 299 Kan. 339,
348, 323 P.3d 853 (2014).

For clarity, we will analyze separately Portsche's two prior DUI convictions and
the documentation offered by the State to prove them.

Kansas City, Missouri, Municipal Court DUI Conviction on August 3, 2007

The State alleged that Portsche was convicted of DUI in Kansas City, Missouri,
(KCMO) Municipal Court on August 3, 2007. In support of this claim, the State offered
two exhibits into evidence. Exhibit 1A included a copy of a letter from the Johnson
County District Attorney's Office to the KCMO Municipal Court requesting a "certified
copy of the Journal Entry Of Judgment And Sentencing" regarding Portsche's
"8/3/2007—DWI Arrest And Possible Conviction."
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Exhibit 1A also comprised a two-page computerized document with markings
identifying it as a record of case No. 832231687-A in the KCMO Municipal Court. This
document contained Portsche's name, date of birth, and other identifiers. As requested by
the Johnson County authorities, the record contained information about Portsche's
conviction on August 3, 2007, for operating a motor vehicle while DUI. In particular, the
record provided information under the following categories: (1) defendant information;
(2) defendant license information; (3) vehicle information; (4) violation information; (5)
officer information; (6) charge/disposition information; (7) program/probation history;
(8) continuance history; (9) assesments; (10) payments; and (11) credit information.

The second page of the court document displayed an original inked seal stating,
"Circuit Court of Jackson County Missouri Municipal Division." Beside the seal was an
original handwritten signature of the "Clerk/Court Official" and the handwritten date of
March 20, 2014.

Exhibit 1B is another two-page document which appears duplicate in form and
contains almost identical information as contained in Exhibit 1A. On page two of Exhibit
1B, however, are two new categories in addition to the 11 categories found in Exhibit 1A.
These two categories were described as "Case Remarks" and "Audit History." Contained
in the case remarks section is found an entry for "08/03/2007 Waived Counsel." The
second page of Exhibit 1B also contains an original seal identical to the one on Exhibit
1A; however, no signature of the court clerk is handwritten beside the seal.

Upon the district court's review of Exhibts 1A and 1B, the court found the
documents sufficiently proved Portsche's prior KCMO DUI conviction. In particular, the
district judge stated, "They both have the seal of Circuit Court of Jackson County,
Missouri. One is signed but I think it's clear to the Court after reviewing those two" that
there is a sufficient showing of a conviction.

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On appeal, Portsche contends the docouments "contain nothing but the seal of the
court. There is no attestation or certification that the documents are part of the official
record of the municipal court nor that the person furnishing the documents is the official
custodian of the records of that court." The State responds that both exhibits, considered
together as the district court did, provided sufficient evidence of the KCMO DUI
conviction.

K.S.A. 60-465 sets out the requirements of authentication that must be met in
order for copies of official records to be admissible as exceptions to the hearsay rule. See
K.S.A. 2015 Supp. 60-460(o).

In relevant part, K.S.A. 60-465 provides:

"A writing purporting to be a copy of an official record or of an entry therein,
meets the requirements of authentication if the judge finds that the writing purports to be
published by authority of the nation, state or subdivision thereof, in which the record is
kept or evidence has been introduced sufficient to warrant a finding that the writing is a
correct copy of the record or entry. Extrinsic evidence of authenticity as a condition
precedent to admissibility is not required if: (1) The office in which the record is kept is
within this state and the writing is attested as a correct copy of the record or entry by a
person purporting to be an officer, or a deputy of an officer, having the legal custody of
the record; (2) the office in which the record is kept is within the United States or
territory or insular possession subject to the dominion of the United States and the writing
is attested to as required in clause (1) and authenticated by seal of the office having
custody or, if that office has no seal, by a public officer having a seal and having official
duties in the district or political subdivision in which the records are kept who certifies
under seal that such officer has custody."

Kansas courts have emphasized the plain meaning of K.S.A. 60-465's statutory
language: "A certified copy of a journal entry of conviction is the best evidence because
it includes all the necessary facts" when determining his or her criminal history. State v.
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Presha, 27 Kan. App. 2d 645, 646-47, 8 P.3d 14 (2000). When the State attempts to
establish a defendant's criminal history with copies of official documents, those copies
must satisfy K.S.A. 60-465's authentication requirements, or they are inadmissible
hearsay. State v. Strickland, 23 Kan. App. 2d 615, 618, 933 P.2d 782 (1997). Our
Supreme Court has stated that copies of out-of-state records must be "attested to as
required by K.S.A. 60-465 and authenticated by the seal of the office having custody."
State v. Hudson, 267 Kan. 381, Syl.¶ 1, 985 P.2d 1167 (1999). The attestation required by
K.S.A. 60-465 is that the document must be "attested as a correct copy of the record or
entry by a person purporting to be an officer, or a deputy of an officer, having the legal
custody of the record."

We are persuaded that Exhibits 1A and 1B are insufficient to meet the attestation
requirement necessary for admission of an out-of-state court document under K.S.A. 60-
465. Although the clerk's seal and signature pass muster as an authentication, given that
these were Missouri court records it was also required that the court records have an
attestation pursuant to K.S.A. 60-465. That attestation required a statement by the official
legal custodian that Exhibits 1A and 1B were "a correct copy of the record or entry" of
the court. See K.S.A. 60-465(1). No such attestation is found on either of these two
exhibits.

Accordingly, we hold Exhibits 1A and 1B were not admissible under K.S.A. 60-
465 and, as a result, the State did not prove Portsche's KCMO DUI conviction by a
preponderance of the evidence. Moreover, substantial competent evidence does not
support the district court's finding that the State had met its burden of proof.

Kansas City, Kansas, Municipal Court DUI Diversion on February 20, 2003

K.S.A. 2015 Supp. 8-1567(i)(1), (3) provides that a DUI diversion is considered a
prior conviction for purposes of the DUI recidivist statute. In the present case, the State
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asserted that Portsche was granted diversion on the charge of DUI in Kansas City,
Kansas, (KCKS) Municipal Court on February 20, 2003.

In support of this claim, the State offered Exhibit 2 into evidence. Exhibit 2 was a
copy of a uniform complaint and notice to appear which indicated that on October 24,
2002, Portsche was arrested for DUI and booked into jail. On the reverse side of the
document were sections related to "Court Action and Other" and "Disposition." Under the
disposition section was a stamped statement indicating that "Diversion Agreement
Approved." The date of "2-20-03" was handwritten beside the stamped statement: "To
Be Completed." The date of "2-20-04" was handwritten beside the stamped statement:
"Case Continued." The date of "9-22-03" was handwritten beside the stamped statement:
"For Payment of Fine." Although "Municipal Court Judge" was stamped below a line,
there was no name or signature above the line.

At the bottom of Exhibit 2 was a stamped statement: "I hereby certify the above
and foregoing to be a true and correct copy, of the original of which is filed and entered
of record in this court." The handwritten signature of "Sunny S" appeared above the
designation "Clerk Municipal Court Kansas City, KS." It also reflected the handwritten
date of "8/29/14."

Upon the district court's review of Exhibit 2, the court found the court record
sufficiently proved Portsche's prior KCKS DUI diversion. In particular, the district court
stated:

"Exhibit 2 is a little bit different in that it appears to be from Municipal Court in
Kansas City, Kansas. It does, however, have the front side and the back side of the ticket
which show the charge which show the diversion agreement approved and the date of that
and the date of payment of the fine, in addition to the certification of the clerk of
Municipal Court of Kansas City, Kansas, and their signature.
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"And the Court does find that that will comply with the Kansas statute as far as
proof of the conviction."

For the first time on appeal, Portsche candidly concedes that Exhibit 2 was
properly authenticated as required for admission under K.S.A. 60-465. However,
Portsche complains: "What is noticeably absent from the exhibit is any indication
whether Appellant-Defendant was advised of or alternatively waived his statutory right to
counsel."

More specifically, Portsche cites language from the Kansas statute pertaining to
municipal court diversions, K.S.A. 2015 Supp. 12-4414(c), that provides: "In all cases,
the defendant shall be present and shall have the right to be represented by counsel at the
diversion conference with the city attorney." Portsche concludes, without any legal
citation:

"In order to serve as evidence of a prior DUI conviction sufficient to meet the State's
burden of proof in this instance, there must be extraneous evidence to establish whether
Appellant-Defendant was either represented by counsel or that he voluntarily waived the
statutory right to be so represented during the diversion conference with the city
attorney."

The State responds:

"Because Portsche did not object on K.S.A. 12-4414(c) grounds, because the statute only
deals with the right to counsel at a diversion 'conference,' because Portsche had no
statutory right to appointed counsel in a diversion case, and because there is no
requirement that a diversion be voided if it violates K.S.A. 12-4414(c), this Court should
deny Portsche's claim, and affirm his conviction and sentence."

At the outset, upon our review of the record, we understand Portsche's argument
before the district court was based on both a constitutional and statutory right to counsel
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in diversion proceedings. By not raising his constitutional right to counsel on appeal,
however, Portsche has abandoned that argument. See Boleyn, 297 Kan. at 633.

Although the district court did not specifically rule on this issue, we find that
Portsche sufficiently raised the question of whether he had a statutory right to counsel
during the diversion proceedings, and if so, whether Exhibit 2 showed that he waived that
right. As a result, we will review this issue on appeal.

K.S.A. 2015 Supp. 12-4414(c) provides in part that in all municipal court
diversion cases "the defendant shall be present and shall have the right to be represented
by counsel at the diversion conference with the city attorney." Our Supreme Court has
confirmed the plain language of subsection (c) by stating: "Based on the language of
K.S.A. 12-4414(c), a defendant has a statutory right to be represented by counsel at a
DUI diversion conference with a city attorney." State v. Tims, 302 Kan. 536, 537, Syl. ¶
4, 355 P.3d 660 (2015).

Tims was a DUI sentence enhancement case. The defendant claimed, in part, that
his prior DUI conviction was not valid because, although he had a statutory right to
counsel, the certification language and protocol suggested by Hughes, 290 Kan. at 170-
71, and In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 209, 708 P.2d 977
(1985), to insure that the municipal court judge adequately advised him of his right to
counsel was not followed. Although there was no showing of any judicial certification
language, Tims' signed diversion agreement indicated that he was informed of his right to
counsel and he knowingly and voluntarily waived the right to be represented by an
attorney during the diversion conference.

Our Supreme Court held that the certification language and procedure was not
required because Tims' constitutional right to counsel did not attach during diversion
proceedings. With particular regard to Tims' statutory right, however, the Supreme Court
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stated: "Any waiver of the statutory right to be represented by counsel during a diversion
conference must be knowing and voluntary. The language of the diversion agreement
controls appellate review of the soundness of the waiver." Tims, 302 Kan. 536, Syl. ¶ 6.

Of note, our Supreme Court has not opined regarding whether proof of a prior
misdemeanor DUI conviction requires a showing that the defendant was either
represented by counsel at the diversion conference or waived that statutory right. In dicta,
however, our court in Paletta v. City of Topeka, 20 Kan. App. 2d 859, 866, 893 P.2d 280
(1995), observed:

"There is no statutory requirement in this state mandating that a defendant have counsel
to enter into a misdemeanor diversion agreement. K.S.A. 12-4414(c) provides only that
'[i]n all cases, the defendant shall be present and shall have the right to be represented by
counsel at the diversion conference with the city attorney.' This statutory provision does
not mandate that counsel be provided for a defendant nor void any diversion agreement
entered into without counsel."

After Tims, we question the soundness of Paletta's dicta. Both K.S.A. 2015 Supp.
12-4414(c) and Tims provide that Portsche had a statutory right to counsel during any
diversion conference. The fact that our Supreme Court in Tims held that the waiver of
that right in the diversion agreement must be knowing and voluntary suggests the
importance of that statutory right. We are also cognizant of Tims' guidance: "The
language of the diversion agreement controls appellate review of the soundness of the
waiver." 302 Kan. 536, Syl. ¶ 6. From this language we deduce that the waiver of the
statutory right to counsel is both significant and predicated on the actual language of the
particular diversion agreement in question.

Nevertheless, we are not persuaded it is necessary in this case to determine
whether proof of the validity of a prior misdemeanor DUI diversion requires a showing
that the defendant was either represented by counsel at the diversion conference or
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waived that statutory right. Our standard of review asks whether substantial competent
evidence supports the district court's finding that the State has met its burden to prove the
prior crime. Hughes, 290 Kan. at 162. We conclude that Exhibit 2 does not meet that
substantial competent evidence standard.

In the present case, the State only presented Exhibit 2 as proof of the prior KCKS
DUI diversion. This exhibit, although undoubtedly a uniform complaint and notice to
appear, had stamped entries regarding diversion with a place for the municipal court
judge's signature. Yet, this signature line was left blank and unsigned, raising questions
about whether the diversion in fact had been approved by the court.

Moreover, the State did not produce a copy of the diversion agreement. As a
result, the terms of the diversion agreement are unknown. In particular, there is no
indication whether Portsche was represented by counsel or waived the assistance of
counsel during the diversion conference or the rest of the proceedings. A copy of the
diversion agreement would have provided the best evidence that Portsche was placed on
diversion for DUI. In this regard, K.S.A. 2015 Supp. 12-4416(a) details the numerous
terms that a municipal court diversion must contain to comply with Kansas law. In
relevant part, K.S.A. 2015 Supp. 12-4416(a) provides: "The diversion agreement shall
include specifically the waiver of all rights under the law or the constitution of Kansas or
of the United States to counsel." (Emphasis added.)

Based on our reading of Exhibit 2 there is some evidence that diversion was
granted, but it is not substantial. Moreover, as noted by our Supreme Court in Tims,
without viewing the language of the diversion agreement we are limited in our ability to
conduct appellate review of whether Portsche was represented by counsel at the diversion
conference or whether he knowingly and voluntarily waived his statutory right.

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We are persuaded that, under the unique circumstances of this case, the State has
failed to establish by a preponderance of evidence the validity or terms of the KCKS DUI
diversion agreement sufficient to prove that it constitutes a valid prior DUI conviction for
purposes of sentence enhancement. Accordingly, we find there was not substantial
competent evidence to support the district court's finding that the State had met its burden
of proof with regard to the KCKS DUI diversion.

The district court's sentence is vacated, and the case is remanded for resentencing.