                                             No. 116,068

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                      TIMOTHY J. WILLIAMS,
                                           Appellant.


                                 SYLLABUS BY THE COURT

1.
        Because the crime of refusing to submit to a breath test has been declared
unconstitutional by the Kansas Supreme Court, a pending conviction for a violation of the
statute must be dismissed or vacated.


2.
        A conviction for a violation of Wichita Municipal Ordinance 11.38.150 as it
existed prior to September 13, 2016, cannot be used as a predicate offense for sentencing
enhancement purposes under the Kansas driving under the influence statute.


3.
        Judges are not required to turn a blind eye to a person's total criminal history. They
are free to consider all prior convictions and the facts related to said convictions as long
as such consideration does not enhance a defendant's sentence beyond the statutory
maximum.


        Appeal from Sedgwick District Court; STEPHEN J. TERNES and BRUCE C. BROWN, judges.
Opinion filed March 9, 2018. Convictions reversed in part, sentences vacated in part, and case remanded
with directions.

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        Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.


        Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before ARNOLD-BURGER, C.J., BUSER and SCHROEDER, JJ.


        ARNOLD-BURGER, C.J.: To determine whether to sentence a driving under the
influence (DUI) offender in Kansas to a misdemeanor, meaning one or fewer prior DUI
convictions, or a felony, meaning two or more prior DUI convictions, the court must
verify the number of prior convictions. A conviction is defined as including not only
prior convictions under K.S.A. 2016 Supp. 8-1567 but also including "a violation of an
ordinance of any city . . . which prohibits the acts that [K.S.A. 8-1567] prohibits." K.S.A.
2016 Supp. 8-1567(i)(1).


        Timothy J. Williams was convicted of a felony DUI because he had a prior DUI
conviction under K.S.A. 8-1567 and another DUI conviction under a similar Wichita
municipal ordinance. He argues that the district court improperly counted his Wichita
municipal DUI because the city ordinance did not prohibit the same acts prohibited by
K.S.A. 8-1567. We agree and vacate his sentence and remand for sentencing as a second-
time offender under K.S.A. 2016 Supp. 8-1567(b)(1)(B).


        Williams also asserts that he was improperly convicted of refusing to take a breath
test under K.S.A. 2012 Supp. 8-1025, which was found to be unconstitutional by the
Kansas Supreme Court. We agree and reverse his conviction for refusing to take a breath
test.




                                                     2
                          FACTUAL AND PROCEDURAL HISTORY


       In 2013, Williams was charged with refusing to submit to a breath test to
determine the presence of alcohol; felony DUI; and failure to maintain a single lane. In
order to establish that the DUI charge was a felony, the complaint referenced in part a
prior DUI conviction in the Wichita Municipal Court. In 2012, Williams was convicted
of DUI under Wichita Municipal Ordinance (W.M.O.) 11.38.150.


       Williams filed a motion to dismiss the charge of refusing to submit to a breath test
arguing that K.S.A. 2012 Supp. 8-1025 was unconstitutional because it criminalized his
refusal to submit to a breath test. He also filed a motion to dismiss the felony DUI charge,
arguing that his prior conviction for DUI under W.M.O. 11.38.150 could not be used as a
prior DUI conviction for purposes of determining the level offense. The district court
denied both motions.


       The State and Williams proceeded to a bench trial on stipulated facts. At the bench
trial, Williams preserved his arguments regarding the constitutionality of the
criminalization of his refusal to submit to a breath test and the use of the Wichita
municipal conviction for enhancement of his DUI from a misdemeanor to a felony. The
district court judge found Williams guilty on all counts.


       At sentencing, Williams again objected to his criminal history rearguing that his
DUI conviction under W.M.O. 11.38.150 could not be used as a prior DUI when
determining his sentence in the present case. The court denied Williams' objection.
Williams was sentenced on Counts 1 and 2 to concurrent 12-month sentences. He was
ordered to serve 72 hours in jail, followed by 2,088 hours of work release, with a $1,750
fine on each count. Williams was also ordered to serve 12 months of postimprisonment
supervision. Williams was fined $50 on Count 3.


                                              3
       Williams timely appeals, arguing that his conviction under K.S.A. 2012 Supp. 8-
1025 was unconstitutional and that the district court erred by considering his Wichita
Municipal DUI for purposes of enhancing his sentence.


                                    ANALYSIS


Williams' conviction for refusing to submit to a breath test under K.S.A. 2012
Supp. 8-1025 must be vacated.


       Williams' conviction for refusing to submit to a test to determine presence of
alcohol or drugs arose from K.S.A. 2012 Supp. 8-1025. On appeal, he argues that K.S.A.
2016 Supp. 8-1025 was found to be unconstitutional by the Kansas Supreme Court and
therefore his conviction must be vacated. He is correct.


       In State v. Ryce, 303 Kan. 899, Syl. ¶ 12, 368 P.3d 342 (2016), aff'd on reh. 306
Kan. 682, 396 P.3d 711 (2017), the Kansas Supreme Court found that K.S.A. 2016 Supp.
8-1025 is unconstitutional. This court is duty bound to follow Kansas Supreme Court
precedent, absent some indication that the Supreme Court is departing from its previous
position. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Because the
Kansas Supreme Court declared K.S.A. 2016 Supp. 8-1025 unconstitutional, Williams'
conviction under that statute must be reversed.


The district court erred when it sentenced Williams to a felony DUI by including
his prior Wichita municipal conviction for DUI as part of the felony sentencing
calculus.


       Williams was charged with felony DUI. The offense was classified as a felony
because it was alleged that he had two prior DUI convictions in the preceding 10 years,
one in Sedgwick County and one in the Wichita Municipal Court. As it applies to the

                                             4
facts of this case, under Kansas DUI law, for purposes of determining whether the
offense was properly classified as a felony a conviction is defined as including "a
violation of an ordinance of any city . . . which prohibits the acts that [K.S.A. 8-1567]
prohibits." K.S.A. 2016 Supp. 8-1567(i)(1).


       On appeal, Williams argues that the district court could not consider his Wichita
Municipal Court DUI conviction under W.M.O. 11.38.150 because the Wichita ordinance
did not, in January 2013, prohibit the same acts that 8-1567 prohibits. The difference
between the state statute and the city ordinance is clear.


       Both the city ordinance and the state law prohibit operating a "vehicle" while
under the influence of alcohol or drugs or with an alcohol concentration of .08 or more—
using the exact same language. K.S.A. 2016 Supp. 8-1567(a); W.M.O. 11.38.150(a). The
difference comes in the definition of the term "vehicle." Under State law, the term
includes "every device in, upon or by which any person or property is or may be
transported or drawn upon a highway, except electric personal assistive mobility devices
or devices moved by human power or used exclusively upon stationary rails or tracks."
K.S.A. 2016 Supp. 8-1485. At the time Williams was convicted Wichita defined
"vehicle" as "'every device in, upon or by which any person or property is or may be
transported or drawn upon a highway, except devices used exclusively upon stationary
rails or tracks.'" City of Wichita v. Hackett, 275 Kan. 848, 850, 69 P.3d 621 (2003).
Because Wichita did not contain an exception for devices moved by human power it
considered riding a bicycle while under the influence of alcohol a DUI, while the State
did not. We pause to note that W.M.O. 11.04.400 was recently changed to define
"vehicle" to mirror the State's definition of "vehicle." See W.M.O. 11.04.400 (Ord. No.
50-317, § 1, adopted September 13, 2016). Wichita has also adopted a separate ordinance
of bicycling under the influence of alcohol or drugs. W.M.O. 11.48.190 (Ord. No. 50-
316, §§ 1, 2, adopted September 13, 2016).


                                              5
       Whether the definition of a conviction under K.S.A. 2016 Supp. 8-1567(i)(1)
includes a city ordinance that is not identical—but is in fact broader than the state law, is
a matter of statutory construction.


       Our standard of review is de novo.


       Interpretation of a statute is a question of law over which appellate courts have
unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). The
most fundamental rule of statutory construction is that the intent of the Legislature
governs if that intent can be ascertained. State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d
417 (2016). An appellate court must first attempt to ascertain legislative intent through
the statutory language enacted, giving common words their ordinary meanings. State v.
Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). When a statute is plain and
unambiguous, an appellate court should not speculate about the legislative intent behind
that clear language, and it should refrain from reading something into the statute that is
not readily found in its words. 303 Kan. at 813.


       Both the Kansas Court of Appeals and the Kansas Supreme Court have considered
this issue before.


       This argument is not new to this court and, with one exception, prior panels have
all found that a Wichita municipal DUI conviction, as it existed before September 13,
2016, could not be counted for enhancement purposes because the city ordinance was
broader than the state law. See State v. Lamone, 54 Kan. App. 2d 180, 193, 399 P.3d 235
(2017), petition for rev. granted February 26, 2018 (because Wichita ordinance is
broader, and fact-finding would be needed, cannot be used for sentence enhancement);
State v. Fisher, No. 115,277, 2017 WL 2021526, at *5 (Kan. App.) (unpublished
opinion), rev. granted 306 Kan. 1323 (2017) (same); State v. Mears, No. 115,278, 2017
WL 1534748, at *6 (Kan. App. 2017) (unpublished opinion), rev. granted 306 Kan. 1327

                                              6
(2017) (same); State v. Schrader, No. 115,196, 2017 WL 947631, at *4 (Kan. App.)
(unpublished opinion), rev. granted 306 Kan. 1329 (2017) (same, although interpreting
similar provisions in K.S.A. 2014 Supp. 21-6811[c][2]). But see State v. Gensler, No.
112,523, 2016 WL 2610262, at *5 (Kan. App. 2016) (unpublished opinion), rev. granted
306 Kan. 1323 (2017) (applying modified categorical approach to determine that based
on the fact that the traffic tickets in the prior Wichita Municipal Court convictions said
Gensler was driving a truck—and therefore not a bicycle—the court properly counted the
convictions for enhancement purposes). All have been accepted for review by the Kansas
Supreme Court.


       Likewise, all panels of our court addressing the issue outside of the Wichita
municipal DUI context have held that K.S.A. 2016 Supp. 8-1567(i) means that a
municipal ordinance or an out of state statute must prohibit the same acts that are
prohibited under K.S.A. 2016 Supp. 8-1567(a). See, e.g., State v. Stanley, 53 Kan. App.
2d 698, Syl. ¶ 3, 390 P.3d 40 (2016), rev. denied 304 Kan. 1022 (2017) (Missouri DUI is
broader than Kansas law therefore a Missouri conviction cannot be used for enhancement
purposes); State v. Butler, No. 107,767, 2013 WL 1457958, at *1-3 (Kan. App. 2013)
(unpublished opinion) (Texas DUI statute broader than Kansas, so conviction cannot a be
used for enhancement); State v. Wood, No. 105,128, 2012 WL 718928, at *2 (Kan. App.
2012) (unpublished opinion) (Lenexa ordinance that simply prohibited operating "'under
the influence of alcohol'" instead of operating "'under the influence of alcohol to a degree
that renders the person incapable of safely driving a vehicle'" resulted in the Lenexa
ordinance being broader than the statute and therefore the Lenexa DUI could not count as
a prior DUI conviction under state law); State v. McClain, No. 104,263, 2011 WL
3795476, at *2 (Kan. App. 2011) (unpublished opinion) (DUI conviction under 1978
Overland Park ordinance that merely prohibited operating a vehicle under the influence
of alcohol, without the additional language of "'to a degree that renders the person
incapable of safely driving a vehicle'" could not be used for enhancement purposes). But
when the ordinance and the statute are identical, prior municipal ordinance DUI

                                              7
convictions do count as prior convictions under state law. State v. Hurt, No. 108,290,
2013 WL 4404195, at *5 (Kan. App. 2013) (unpublished opinion); State v. Miller, No.
108,302, 2013 WL 1943153, at *8 (Kan. App. 2013) (unpublished opinion) (same).


       The Kansas Supreme Court has weighed in on this issue once, in City of Wichita v.
Hackett, 275 Kan. 848, 69 P.3d 621 (2003). Hackett was the first, and so far the only,
case in which our Supreme Court was confronted with a municipal DUI ordinance that
was broader than the state DUI statute. Hackett involved the same ordinance at issue
here, W.M.O. 11.38.150.


       Hackett directly appealed his municipal conviction for DUI on a bicycle. He
argued that the City of Wichita had no authority to expand the definition of vehicle
beyond that contained in state law. The Supreme Court disagreed and concluded that "the
City of Wichita has the authority to prohibit the operation of bicycles while under the
influence of alcohol." 275 Kan. at 852.


       But the Supreme Court next addressed whether Hackett's municipal conviction
also qualifies as a prior conviction for state sentencing purposes under the Kansas DUI
statute, K.S.A. 8-1567. The court found that it did not. The court relied on the language
of then K.S.A. 8-1567(l) (now K.S.A. 2016 Supp. 8-1567[i][1]) which provided, as it
does now, that for current sentencing purposes, a prior "'"conviction" includes being
convicted of a violation of . . . an ordinance of any city, or resolution of any county,
which prohibits the acts that this section prohibits . . . .'" (Emphasis added.) 275 Kan. at
852.


               "These statutes disclose that the legislature intended to limit the consequences of
       a DUI conviction to those acts proscribed by state law. Operating a bicycle while under
       the influence, though a violation of the city code, is not a DUI under K.S.A. 8-1567. Such




                                                    8
       a conviction therefore does not count for state sentencing purposes concerning the instant
       offense or subsequent offenses." (Emphasis added.) 275 Kan. at 853.


       The issue in Hackett was merely one of statutory construction. Because K.S.A.
2016 Supp. 8-1567(i) has its own internal provision regarding how prior convictions are
reviewed to enhance a current DUI sentence, the court simply needed to review and
interpret the statutory language. What is meant by the requirement that the ordinance
"prohibit the acts that this section prohibits" in order to be considered a conviction? Does
it mean the city ordinance must be identical (or perhaps narrower) than the state law to
count the conviction for sentencing purposes?


       In the opening paragraph of Hackett the court set out the issues on appeal. The
pertinent issue, and its short answer, was stated as: "Does a conviction for DUI as
defined under the [Wichita] City ordinance qualify as a conviction under K.S.A. 8-1567?
No." 275 Kan. at 849. That seems to end the matter. Our Supreme Court has made it clear
that when a statute is plain and unambiguous, an appellate court should not speculate
about the legislative intent behind that clear language, and it should refrain from reading
something into the statute that is not readily found in its words. State v. Barlow, 303 Kan.
804, 813, 368 P.3d 331 (2016). It would not be an unreasonable reading of the statute to
find that the plain meaning of the statute prohibits counting any DUI conviction under a
city ordinance that varies at all from state law as a prior conviction for sentence
enhancement purposes. This interpretation also seems reasonable given a DUI conviction
has collateral consequences under state law beyond just the sentence. It also impacts
other provisions regarding the suspension of the defendant's driver's license and results in
certain enhancements under the revised Kansas Sentencing Guidelines Act (KSGA). See
K.S.A. 2016 Supp. 8-1014; K.S.A. 2016 Supp. 8-1567(j); K.S.A. 2016 Supp. 21-6811(c).


       Moreover, the language of the internal sentencing enhancement provision of
K.S.A. 2016 Supp. 8-1567(i)(1) is different than the corresponding provisions of the

                                                   9
KSGA that require the statutes be "comparable." K.S.A. 2016 Supp. 21-6811(e). The
Legislature did not use the word "comparable" in the DUI statute, so it must have meant
something different. "It is presumed the legislature understood the meaning of the words
it used and intended to use them . . . in their ordinary and common meaning." Boatright
v. Kansas Racing Comm'n, 251 Kan. 240, Syl. ¶ 8, 834 P.2d 368 (1992). Our Supreme
Court has found that comparable does not mean identical. State v. Williams, 299 Kan.
870, 873, 326 P.3d 1070 (2014) (citing State v. Vandervort, 276 Kan. 164, 179, 72 P.3d
925 [2003], overruled on other grounds by State v. Dickey, 301 Kan. 1018, 1032, 350
P.3d 1054 [2015] [Dickey I]). This leads to a reasonable conclusion that "prohibits the
acts that this section prohibits" means the ordinance must be identical.


       But the language quoted later in the body of the opinion that "such a conviction"
does not count for sentencing purposes, has raised the question of some of our panels
regarding whether the Supreme Court meant that a Wichita DUI conviction that involved
a person on a bicycle would not be counted, but a Wichita DUI conviction involving a
person driving a truck would be counted because that provision is identical to State law.
See Mears, 2017 WL 1534748, at *4-5. And why should it matter? Because to determine
whether a person was convicted of driving a truck or a bicycle would require fact-finding
by the court beyond the mere conviction itself. Based on cases that have been issued
since Hackett, such judicial action may violate a defendant's constitutional rights. So our
court has routinely compared the Wichita DUI law in light of those constitutional rights.


       We examine the constitutional overlay to the statute.


       As Justice Stegall pointed out in State v. Dickey, 305 Kan. 217, 221, 380 P.3d 230
(2016) (Dickey II), even though "the proper classification of a prior crime is exclusively a
matter of state statutory law" there is a "thick overlay of constitutional law." Hackett was
decided after Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000)—which held that a fact, other than the existence of a previous conviction,

                                             10
used to increase a criminal defendant's sentence above the statutory maximum must be
proved to a jury beyond a reasonable doubt—but before a long line of constitutional law
cases that make up the "thick overlay" to which Justice Stegall refers.


Post-Apprendi caselaw regarding consideration of prior convictions to enhance a
sentence


       For several years after the United States Supreme Court issued its decision in
Apprendi, little thought was given to counting prior convictions for sentence
enhancement purposes. Based on Apprendi, it was believed that such action did not have
any constitutional implications. But 13 years later in Descamps v. United States, 570 U.S.
254, 269, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), the United States Supreme Court
made it clear that when the prior crime of conviction is broader than the generic crime to
which it is being compared—requiring the court to look beyond the mere fact of a
conviction and examine the facts that gave rise to the conviction—the right to a jury trial
under the Sixth Amendment to the United States Constitution is implicated. 570 U.S. at
269. The Kansas Supreme Court adopted this reasoning for the first time in Dickey I, 301
Kan. at 1038-39.


       The methods for determining whether the court would have to impermissibly look
at underlying facts in violation of the defendant's Sixth Amendment rights were defined
as the categorical approach and the modified categorical approach. 301 Kan. at 1037.


       The categorical approach is appropriate when the statute sets out a single set of
elements constituting the crime. "If the elements of the prior conviction are the same as,
or narrower than, the elements of the corresponding crime . . . , then the prior conviction
may be counted as a predicate offense." 301 Kan. at 1037. As recently clarified by the
United States Supreme Court in Mathis v. United States, 579 U.S. ___, 136 S. Ct. 2243,
2248, 195 L. Ed. 2d 604 (2016), elements are what the jury must find beyond a

                                             11
reasonable doubt at trial to convict the defendant. When a statute defines a single crime
with a single set of elements, the analysis is straightforward. The example provided by
the United States Supreme Court in Mathis is helpful. Generic burglary is unlawfully
entering a building with the intent to steal. In California, however, the burglary statute
included lawful or unlawful entry into a building with the intent to steal as burglary.
Accordingly, a shoplifting offense could be classified as a burglary. The California
statute was clearly broader. A jury would only have to find beyond a reasonable doubt
that the defendant entered a building to convict. Because a jury would not have had to
find that there was an unlawful entry, a sentencing court would have to look beyond the
conviction to the underlying facts of the offense—was the entry in the case unlawful or
lawful. Such an inquiry is prohibited under the Sixth Amendment. 136 S. Ct. at 2248-49.


       Similarly, a statute may define various factual means to commit a single element.
For example, again from Mathis, a statute may require the use of a deadly weapon as an
element of the crime. It may go on to state that a knife, gun, bat, or similar weapon all
qualify as a deadly weapon. Because such a listing merely defines different factual ways
to satisfy the element of "deadly weapon," the jury is not required to agree on which kind
of deadly weapon was used, merely that a deadly weapon was used. 136 S. Ct. at 2249. In
Mathis, the generic crime of burglary was defined as unlawful entry into a building or
other structure. The statute under which Mathis was convicted in Iowa was broader,
prohibiting unlawful entry into any building, structure, or land, water, or air vehicle. The
jury would not have had to decide which of the various factual scenarios was present, just
that one of them was present. But generic burglary does not prohibit entry into a land,
water, or air vehicle. For sentencing purposes, the court would be required to look at
which type of place was entered to determine if the conviction should count as a prior to
enhance the sentence. Such an inquiry is prohibited under the Sixth Amendment. 136 S.
Ct. at 2248-49.




                                             12
       The modified categorical approach is used to determine which elements played a
part in the defendant's conviction. Again, what did the jury have to find to convict the
defendant? Mathis, 136 S. Ct. at 2253. It is still an elements-only inquiry. This is true
even if the sentencing judge knows or can easily discover that the actual facts underlying
defendant's prior conviction satisfy the elements of the offense to which it is compared.
136 S. Ct. at 2251.


       This approach is used when the prior conviction statute is divisible—in other
words, when the statute under which the defendant previously was convicted provides
alternative ways of committing the crime, each with its own set of elements, sometimes
even with different punishments. Under the modified categorical approach, the court can
look at a limited set of documents to determine which set of statutory elements it should
use for purposes of comparing that prior conviction with the elements of the current
comparable offense. So, the modified categorical approach lets the court look at a few
documents from the prior conviction only to determine which alternative set of elements
in the prior conviction statute it should compare to the current comparable offense.
Descamps, 570 U.S. at 257-58. Not to over emphasize, but it is never an examination of
facts, only a review of elements.


       An example may clarify this distinction. To commit an aggravated robbery
requires a defendant commit a robbery and either be armed with a deadly weapon or
inflict bodily harm upon a person—two entirely distinct ways of violating the statute.
K.S.A. 2016 Supp. 21-5420(b)(1), (2). If the fact to be determined from the conviction
were whether the defendant had a deadly weapon, the armed robbery conviction alone
would not be sufficient. But the court could look at the judgment to see if the defendant
was convicted of violating K.S.A. 2016 Supp. 21-5420(b)(1), the section of the statute
identifying a deadly weapon as an essential element. The documents, however, may not
be used to prove the fact itself but merely to point out the applicable statutory violation
underlying the crime of conviction. The fact must then be evident from the statutory

                                             13
elements. That is, the court must look to the statutory elements of the crime of conviction
as codified to discern the fact rather than the case-specific circumstances supporting the
particular defendant's guilt. The sentencing judge could be confident that the jury would
have had to find the defendant guilty of having a deadly weapon in order to convict.


       Given this background, we find—as have all but one other panel of this court—
that the modified categorical approach would not be appropriate in determining whether
Williams had a prior DUI conviction involving something other than a bicycle, although
such information would be easy to determine. The ordinances in question simply list
various facts that make up the definition of vehicle. The list of vehicles is broader than
the state law. Each type of vehicle is not a separate element of the offense. The
defendant's conviction was for operating a vehicle in violation of K.S.A. 2016 Supp. 8-
1567. The jury would not have had to determine which type of vehicle. Because without
looking at further documentation and facts not proven to a jury we cannot conclude that a
jury found beyond a reasonable doubt that he was driving a truck or car, Williams'
municipal conviction for DUI cannot be used for enhancement purposes under a
constitutional analysis.


The sentencing impact of our decision is considered.


       Finally, we are compelled to note that although we are remanding this for
resentencing pursuant to K.S.A. 2016 Supp. 8-1567(b)(1)(B), the only guaranteed benefit
Williams will get from such a resentencing is the reclassification of his crime from a
felony to a misdemeanor. The district judge sentenced Williams to 1 year in jail and a
$1,750 fine. That is the statutory maximum for a second-time offense under K.S.A. 2016
Supp. 8-1567(b)(1)(B). Although the mandatory minimums vary for a second and third
offense, there is no requirement that the court sentence an offender to the statutory
minimum, the court simply cannot exceed the statutory maximum. Similarly, as it relates
to crime classifications under the KSGA, simply because a prior offense does not fit the

                                             14
criteria as a person crime, does not mean the prior offense is not counted at all. It is
simply not given the designation of person crime that serves to increase the maximum
sentence. Judges are not required to turn a blind eye to a person's total criminal history.
They are free to consider all prior convictions and the facts related to said convictions as
long as such consideration does not enhance a defendant's sentence beyond the statutory
maximum.


       Accordingly, other than the felony classification, there was nothing improper
about the individual sentence imposed, although on remand the judge may, in his or her
discretion, reduce the sentence to the mandatory minimum sentence for a second-time
offender. It is also important to note that nothing prevents the district judge from
considering Williams' prior record including the facts of his Wichita DUI in making a
sentencing decision that does not statutorily enhance his sentence beyond the maximum.
So the district judge would have the discretion to impose the same sentence imposed on
January 15, 2016.


       In sum, Williams' conviction for refusing the breath test is reversed and his
sentence vacated. His sentence for DUI is vacated, and the case is remanded for the
district court to sentence him under K.S.A. 2016 Supp. 8-1567(b)(1)(B).




                                              15
