Opinion
No. 107,632.
2013-05-24
STATE of Kansas, Appellee, v. Jason M. COPENHAVER, Appellant.
Appeal from Sedgwick District Court; David Kaufman, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David Kaufman, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., GREEN and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jason M. Copenhaver appeals his conviction and sentence for one count of felony driving under the influence of alcohol (DUI), third offense. This appeal centers on whether the trial court erred by including an uncounseled DUI diversion in his criminal history. Finding no error, we affirm.
On October 7, 2011, Copenhaver pled guilty to one count of DUI. The presentence investigation report indicated that Copenhaver had a previous DUI diversion and another DUI conviction. Before sentencing, Copenhaver moved to exclude the DUI diversion, arguing that there was inadequate proof of the DUI diversion and that the diversion was uncounseled, and thus, it could not be used for purposes of enhancing his present DUI offense. The State contended that the issue was prematurely raised because it was purely a sentencing issue. In the alternative, the State argued that there was sufficient proof that Copenhaver had a previous DUI diversion which counted as a prior conviction because Copenhaver successfully completed the diversion, no adjudication of guilt was ever entered, and the DUI charge was dismissed with prejudice. Thus, according to the State, Copenhaver's right to counsel never attached and the DUI diversion was a valid prior conviction for purposes of enhancing Copenhaver's present DUI offense. In agreeing with the State, the trial court denied Copenhaver's motion to exclude the DUI diversion. Accordingly, the trial court sentenced Copenhaver based on the penalties applicable to the felony DUI, third offense. Did the trial court err in including Copenhaver's uncounseled diversion in his criminal history to enhance his present DUI offense?
On appeal, Copenhaver argues that the use of his uncounseled DUI diversion to enhance his present DUI offense violated his Sixth Amendment right to counsel as construed in Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002). Specifically, Copenhaver contends that his right to counsel attached when he entered into the DUI diversion agreement because, had the diversion agreement been revoked, he would have been vulnerable to imprisonment. Because there is no evidence that he either had counsel or waived his right to counsel when entering the diversion agreement, Copenhaver argues that his DUI diversion was constitutionally invalid. Thus, Copenhaver argues that the trial court erred in using the constitutionally invalid diversion to enhance his present DUI offense.
The State responds that Copenhaver's right to counsel never attached during the DUI diversion proceedings because his guilt was never adjudicated and his vulnerability to imprisonment was never determined. As a result, the State argues that the uncounseled DUI diversion was constitutionally valid and the trial court did not err in using the diversion to enhance Copenhaver's present DUI offense.
The question this court must determine is whether Copenhaver's Sixth Amendment right to counsel attached during his DUI diversion proceedings. This implicates only questions of law. See Paletta v.. City of Topeka, 20 Kan.App.2d 859, 864–66, 893 P.2d 280, rev. denied 258 Kan. 859 (1995). An appellate court exercises unlimited review over legal questions. State v. Mossman, 294 Kan. 901, 925, 281 P.3d 153 (2012).
K.S.A.2011 Supp. 8–1567, the statue governing Copenhaver's present DUI offense, is a recidivist statute that provides for an enhanced severity and sentence if the offender has previous DUI convictions. The statute states in relevant part:
“(j) 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.”
In other words, entering into a valid DUI diversion agreement under Kansas law constitutes a prior conviction for purposes of K.S.A.2011 Supp. 8–1567. But the issue on appeal is whether Copenhaver's uncounseled diversion agreement was constitutionally invalid due to a violation of his right to counsel.
In Kansas, a diversion agreement is an agreement between the defendant and the prosecuting authority entered before any conviction on the offense is charged. The defendant agrees to waive certain constitutional rights and abide by certain conditions; however, a diversion agreement may not be conditioned on the defendant entering a plea to the offense charged. K.S.A 12–4417; K.S.A 22–2910. If the defendant successfully fulfills the terms of the diversion agreement, the prosecuting authority agrees to dismiss the charge with prejudice. K.S.A. 12–4418(b); K.S.A 22–2911(b). But if the defendant fails to fulfill the terms of the diversion agreement, the diversion agreement is revoked and criminal proceedings are resumed. K.S.A 12–4418(a); K.S.A. 22–2911(a). Specific to diversion agreements on DUI charges, the defendant is statutorily required to waive his or her right to counsel and right to a jury trial and to stipulate to the facts underlying the DUI charge. K.S.A. 12–4416(a); K.S.A. 22–2909(a). Furthermore, the defendant must agree to trial and to appeal on the stipulated facts in the event the diversion agreement is revoked. K.S.A. 12–4416(b); K.S.A. 22–2909(c).
In Shelton, the United States Supreme Court established that the Sixth Amendment right to counsel attaches when guilt is adjudicated, eligibility for imprisonment is established, and a prison sentence is determined. 535 U.S. at 664–65, 674. The Shelton court held that a suspended sentence may constitute a term of imprisonment even though actual incarceration is not immediate or inevitable. The Court further held that a prison “sentence that may ‘end up in the actual deprivation of a person's liberty’ may not be imposed unless the defendant was accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged. [Citation omitted.]” 535 U.S. at 658.
Our Supreme Court recently applied Shelton in State v. Youngblood, 288 Kan. 659, 206 P.3d 518 (2009). In Youngblood, the defendant challenged the use of his uncounseled misdemeanor conviction for possession of marijuana to enhance the severity of his later conviction for the same crime. The evidence showed that the defendant had been sentenced to 6 months in jail on the uncounseled prior conviction but that the sentence was suspended and the defendant was placed on probation. 288 Kan. at 659–61. While applying Shelton, our Supreme Court determined that with respect to the defendant's uncounseled prior conviction, a term of imprisonment was imposed and his right to counsel attached at the time the court found him guilty and sentenced him to a prison term, even though actual service of jail time was suspended or conditioned upon probation. Because the defendant's right to counsel was violated in the prior case, that conviction could not be used to enhance the severity of the defendant's later conviction. 288 Kan. at 669–70; see also State v. Long, 43 Kan.App.2d 328, 337–38, 225 P.3d 754 (2010) (defendant's right to counsel attaches when guilt is adjudicated and a sentence is imposed, even though defendant does not serve the sentence).
In this case, Copenhaver argues that his uncounseled DUI diversion is the same as a suspended sentence or probation as contemplated in Shelton and Youngblood because the diversion agreement could have resulted in his imprisonment had the agreement been revoked and had he been sentenced to a jail term as a first-time DUI offender. Copenhaver's argument, however, ignores a crucial distinction between a diversion agreement and a suspended sentence or probation: at the time a defendant enters into a diversion agreement, no adjudication of guilt is entered, eligibility for imprisonment is not established, and no prison sentence is determined. See State v. Slick, No. 95,258, 2006 WL 1976757 (Kan.App.2006); State v. Tapedo, No. 89,883, 2003 WL 22283150, at *1 (Kan.App.2003), rev. denied 277 Kan. 927 (2004) (diversions have no underlying sentence and are thus distinguishable from convictions with conditional or suspended sentences for purposes of right-to-counsel analysis). Under Shelton, the Sixth Amendment right to counsel attaches only where a term of imprisonment is actually imposed, not where it is merely a possibility or probability. 535 U.S. at 664–65.
Here, because no adjudication of guilt was ever entered in Copenhaver's uncounseled DUI diversion, his eligibility for prison was not established, and no prison sentence was determined. Notwithstanding the fact that Copenhaver may have been vulnerable to imprisonment had his diversion been revoked and had he been convicted of the underlying DUI offense, his Sixth Amendment right to counsel never attached during the diversion proceedings. Thus, the DUI diversion was constitutionally valid for Sixth Amendment right-to-counsel purposes, and the trial court did not err in including the uncounseled DUI diversion to enhance Copenhaver's present DUI offense.
Affirmed.
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ATCHESON, J., concurring:
Based on the argument Defendant Jason M. Copenhaver has presented, I concur in the result affirming his conviction.