Opinion
No. 105,449.
2013-03-8
STATE of Kansas, Appellee, v. Gerardo Martinez NIEVES, Appellant.
Appeal from Johnson District Court; Peter V. Ruddick, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Peter V. Ruddick, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Gerardo Martinez Nieves appeals his conviction and sentence for one count of felony driving under the influence of alcohol (DUI), third offense. Nieves claims the district court erred by including an uncounseled Oregon diversion in his criminal history. Nieves also claims the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by enhancing his sentence based upon the prior Oregon DUI diversion. Finding no error, we affirm the district court's judgment.
On October 1, 2010, Nieves pled guilty to one count of DUI. The presentence investigation report indicated that Nieves had a prior Oregon DUI diversion and a prior Kansas DUI conviction. Before sentencing, Nieves filed a motion to exclude the Oregon DUI diversion, arguing that the diversion was uncounseled and thus could not be used for purposes of enhancing his present DUI offense. The State conceded that there was no evidence that Nieves either had counsel or waived his right to counsel when entering the Oregon DUI diversion agreement. But the State contended that the Oregon DUI diversion nevertheless counted as a prior conviction because Nieves successfully completed the diversion, no adjudication of guilt was ever entered, and the DUI charge was dismissed with prejudice. Thus, according to the State, Nieves' right to counsel never attached and the Oregon DUI diversion was a valid prior conviction for purposes of enhancing Nieves' present DUI offense. The district court agreed with the State and denied Nieves' motion to exclude the Oregon DUI diversion. Accordingly, the district court sentenced Nieves based on the penalties applicable to felony DUI, third offense. Nieves timely appealed.
On appeal, Nieves argues that the use of his uncounseled Oregon 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). Nieves specifically contends that his right to counsel attached when he entered into the Oregon DUI diversion agreement because, had the diversion agreement been revoked, he would have been vulnerable to imprisonment. Because there was no evidence that he either had counsel or waived his right to counsel when entering the diversion agreement, Nieves argues that his Oregon DUI diversion was constitutionally invalid. Thus, Nieves argues that the district court erred in using the constitutionally invalid diversion to enhance his present DUI offense.
The State renews its argument that Nieves' right to counsel never attached during the Oregon DUI diversion proceedings because his guilt was never adjudicated and his vulnerability to imprisonment was never determined. Thus, the State argues that the uncounseled Oregon DUI diversion was constitutionally valid and the district court did not err in using the diversion to enhance Nieves' present DUI offense.
The question of whether Nieves' Sixth Amendment right to counsel was violated during the Oregon DUI diversion proceedings turns on whether his right to counsel attached during those 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.2010 Supp. 8–1567, the statute governing Nieves' present DUI offense, is a recidivist statute that provides for an enhanced severity and sentence if the offender has prior DUI convictions. The statute states in relevant part:
“(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.”
Accordingly, entering into a valid DUI diversion agreement under Kansas law or similar laws of any other state, including Oregon, constitutes a prior conviction for purposes of K.S.A.2010 Supp. 8–1567. But the issue on appeal is whether Nieves' uncounseled Oregon diversion agreement was constitutionally invalid due to a violation of his right to counsel.
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. But the Court clarified that a suspended sentence may constitute a term of imprisonment even though actual incarceration is not immediate or inevitable. The Court 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.
Kansas appellate courts have applied Shelton in several subsequent decisions. In State v. Youngblood, 288 Kan. 659, 206 P.3d 518 (2009), 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. 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).
Returning to this case, Nieves argues that his uncounseled Oregon DUI diversion is akin to a suspended sentence or probation as contemplated in Shelton, Youngblood, and Long because the diversion agreement could have resulted in the actual deprivation of his liberty had the agreement been revoked and had he been sentenced to a jail term as a first-time DUI offender under Oregon law. Nieves points out that in the vast majority of cases in which a diversion agreement is revoked, the defendant is adjudicated guilty of the diverted offense and may be sentenced to a term of imprisonment as a result. But this argument ignores the 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. 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, no adjudication of guilt was ever entered in Nieves' uncounseled Oregon DUI diversion, his eligibility for prison was not established, and no prison sentence was determined. Notwithstanding the fact that Nieves 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 diversion proceedings. Thus, the Oregon DUI diversion was constitutionally valid for Sixth Amendment right to counsel purposes, and the district court did not err by including the diversion to enhance Nieves' present DUI offense.
Next, Nieves argues for the first time on appeal that the district court violated his constitutional rights under Apprendi by enhancing his sentence based upon the prior Oregon DUI diversion. Nieves argues that a diversion is not the same as a conviction and that under Apprendi, only prior convictions can be used to enhance his sentence for his present DUI offense. Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). Although there are exceptions to this general rule, Nieves makes no attempt to argue in his brief that any of the exceptions apply to his case. Accordingly, we decline to consider Nieves' constitutional argument under Apprendi that he failed to raise in district court.
Affirmed.