State v. Lamone

No. 115,451

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

STEPHANIE R. LAMONE,
Appellant.

SYLLABUS BY THE COURT

1.
The interpretation of a statute is a question of law over which appellate courts
have unlimited review.

2.
Other than the fact of a previous conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt. Thus, under the United States Constitution, only a jury, and
not a court, may find facts that increase a maximum penalty.

3.
The definition of "vehicle" under the Wichita City Ordinance did not create an
alternative element but only enumerated one or more factual ways of committing the
single offense of driving under the influence by operating or attempting to operate a
vehicle. Thus, it was improper for the trial court to invoke the modified categorical
approach and look to the charging documents of appellant's two previous municipal court
convictions to see what type of vehicle appellant was operating or attempting to operate
when charged with the driving under the influence offenses.

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 Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed June 9, 2017.
Sentence vacated and case remanded with directions.

C. Ryan Gering, of Hulnick, Stang, Gering & Leavitt, P.A., of Wichita, for appellant.

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

Before GREEN, P.J., STANDRIDGE and GARDNER, JJ.

GREEN, J.: Stephanie R. Lamone was convicted of felony driving under the
influence (DUI) under K.S.A. 2013 Supp. 8-1567(b)(1)(D) when the sentencing court
determined that she had two prior Wichita Municipal Court convictions under a Wichita
City ordinance. On appeal, Lamone raises two issues for our consideration. First, she
contends that her previous two convictions under the Wichita City Ordinance cannot be
used to enhance her sentence for DUI under K.S.A. 8-1567 because, at the time of her
previous convictions, the Wichita City Ordinance was broader than the state statute in
defining the term "vehicle." In addition, she contends that any finding of fact made by the
trial court regarding what type of vehicle she was driving when she was charged with
DUI under the Wichita City Ordinance violates controlling caselaw. Because the trial
court erred when it looked to the charging documents of Lamone's two previous
municipal court convictions to see what type of vehicle Lamone was operating when she
was charged with DUI under the Wichita City Ordinance, we vacate her sentence and
remand to the trial court with directions to resentence Lamone without using or
considering her two previous Wichita Municipal Court convictions for the purpose of
resentencing her under K.S.A. 2016 Supp. 8-1567.

On February 12, 2014, Stephanie R. Lamone was involved in a one-car accident in
Wichita, Kansas. Lamone told the responding law enforcement officers that she was the
lone occupant and the driver of the Toyota car that had left the road and struck a tree.

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After submitting to field sobriety tests, Lamone consented to a breath test. The breath test
showed that Lamone had a breath alcohol concentration (BAC) of .214.

Lamone was later charged with unlawfully operating or attempting to operate a
motor vehicle while under the influence of alcohol in violation of K.S.A. 2013 Supp. 8-
1567(a)(2) or, in the alternative, with violating K.S.A. 2013 Supp. 8-1567(a)(3). The
complaint alleged that Lamone had two previous convictions in Wichita, Kansas,
Municipal Court, for driving under the influence (DUI) in violation of Wichita City
Ordinance 11.38.150. Wichita Municipal Court records showed that Lamone was granted
diversion for DUI on September 2, 2010, in case no. 09DU615, and found guilty of DUI
on December 15, 2011, in case no. 11DU1254. Lamone was charged with a felony under
K.S.A. 2013 Supp. 8-1567(b)(1)(D) based on her two previous DUIs.

At the preliminary hearing, Lamone did not contest the probable cause findings as
to the elements of the February 12, 2014, DUI. Instead, Lamone challenged the
admissibility of her prior Wichita Municipal Court convictions, arguing that the
convictions could not properly be used as prior convictions under state law (K.S.A. 2013
Supp. 8-1567[i]). As a result, Lamone objected to the classification of the alternataive
counts against her as felony charges. The trial court admitted the prior convictions over
Lamone's objection and ruled that probable cause existed to believe that Lamone had
committed a felony DUI. Lamone entered a plea of not guilty.

Lamone moved to dismiss the complaint, arguing that the two prior convictions
could not be used or considered for state sentencing purposes under K.S.A. 2013 Supp. 8-
1567(i). The trial court held a hearing on the motion to dismiss, and it admitted the two
previous municipal court convictions. The trial court considered the charging documents
of Lamone's two prior municipal court convictions and determined that Lamone had been
charged with driving a Toyota Camry in each of her two previous DUIs. In its
memorandum decision, the trial court denied Lamone's motion to dismiss and ruled that

3
her two prior municipal court convictions for DUI could properly be considered for the
purpose of sentencing.

The case proceeded to a bench trial on stipulated facts. Lamone preserved the
issue of whether her two previous municipal court convictions should be counted as prior
convictions under K.S.A. 2013 Supp. 8-1567(i). Lamone was found guilty of the felony
DUI charged.

When a presentencing investigation was conducted, the report stated that Lamone
had two prior convictions for DUI. Lamone objected to her criminal history, again
arguing that her two prior municipal court convictions for DUI could not be considered as
prior convictions for sentencing purposes under K.S.A. 2013 Supp. 8-1567(i).

Lamone was sentenced under K.S.A. 2013 Supp. 8-1567(b)(1)(D) for her third
conviction for DUI. She was sentenced to 12 months' imprisonment and a fine of $1,750
for Count 1, violating K.S.A. 2013 Supp. 8-1567(a)(2). The sentencing court ordered
Lamone to serve the mandatory 90-day jail sanction, with 48 hours being served in jail
and 2,112 hours being served on house arrest.

Could Lamone's Two Prior Convictions From the Wichita Municipal Court Properly be
Used as Previous Convictions Under K.S.A. 8-1567(i) to Sentence Her for Felony DUI
Under K.S.A. 8-1567(b)(1)(D)?

The issue before this court is whether Lamone's two prior Wichita Municipal
Court convictions for DUI could be counted as prior convictions for the purpose of
sentencing Lamone under K.S.A. 8-1567.

Lamone specifically argues (1) that her two previous convictions under Wichita
City Ordinance 11.38.150 could not be used to enhance a sentence for DUI under K.S.A.

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8-1567 because the Wichita City Ordinance was broader than the state statute in defining
the term "vehicle" and (2) that any finding of fact made by the trial court regarding what
type of vehicle she was driving when she was charged with DUI under the Wichita City
Ordinance was violative of controlling caselaw: Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Alleyne v. United States, 570 U.S. ___, 133 S.
Ct. 2151, 186 L. Ed. 2d 314 (2013); Descamps v. United States, 570 U.S. ___, 133 S. Ct.
2276, 186 L. Ed. 2d 438 (2013); and Mathis v. United States, 579 U.S. ___, 136 S. Ct.
2243, 195 L. Ed. 2d 604 (2016). Based on these decisions, Lamone argues that the
modified categorical approach would have precluded the trial court from making this
finding.

Lamone's arguments involve questions of statutory interpretation and application.
The 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).

Did the Wichita City Ordinance and the State Statute Prohibit the Same Acts?

To begin, we note that K.S.A. 2016 Supp. 8-1567(i) clearly allows prior DUI
convictions to be considered for sentencing purposes. K.S.A. 2016 Supp. 8-1567(i) states
in relevant part:

"For the purpose of determining whether a conviction is a first, second, third,
fourth or subsequent conviction in sentencing under this section:
"(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."

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 More plainly stated, K.S.A. 2016 Supp. 8-1567(i) "provides that a defendant's
municipal court DUI conviction occurring on or after July 1, 2001, may be counted as a
prior DUI conviction if the ordinance prohibits the acts that K.S.A. 8-1567 prohibits."
See State v. Gensler, No. 112,523, 2016 WL 2610262, at *2 (Kan. App. 2016)
(unpublished opinion), petition for rev. filed June 6, 2016.

Thus, our question initially becomes whether Wichita City Ordinance 11.38.150
prohibits the acts that K.S.A. 8-1567 prohibits. See K.S.A. 2016 Supp. 8-1567(i); see also
State v. Stanley, 53 Kan. App. 2d 698, __, 367 P.2d 1284 ("Thus, our question becomes
are the same acts that are prohibited by the Missouri law prohibited by the Kansas law?"),
rev. denied 304 Kan. 1022 (2016); State v. Miller, No. 108,302, 2013 WL 1943153, at *8
(Kan. App. 2013) (unpublished opinion) ("For a prior DUI conviction to count as a prior
offense, the law underlying the conviction must prohibit the same acts that our present
DUI statute prohibits.").

K.S.A. 2016 Supp. 8-1567(a) prohibits the following acts relating to the charge of
driving under the influence of alcohol or drugs or both:

"Driving under the influence is operating or attempting to operate any vehicle
within this state while:
(1)The alcohol concentration in the person's blood or breath as shown by any
competent evidence, including other competent evidence, as defined in paragraph (1) of
subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person's blood or breath, as measured within
three hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of
safely driving a vehicle;
(4) under the influence of any drug or combination of drugs to a degree that
renders the person incapable of safely driving a vehicle; or
(5) under the influence of a combination of alcohol and any drug or drugs to a
degree that renders the person incapable of safely driving a vehicle."

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 Wichita City Ordinance 11.38.150 prohibits the following acts relating to driving
under the influence of alcohol or drugs or both:

"'No person shall operate or attempt to operate any vehicle within the city while:
'(1) The alcohol concentration in the person's blood or breath, as measured within
three hours of the time of operating or attempting to operate a vehicle is .08 or more;
'(2) Under the influence of alcohol to a degree that renders the person incapable
of safely driving a vehicle;
'(3) The alcohol concentration in the person's blood or breath as shown by any
competent evidence is .08 or more. For the purposes of this section, "any competent
evidence" includes (1) Alcohol concentration tests obtained from samples taken three
hours or more after the operation or attempted operation of a vehicle, and (2) readings
obtained from a partial alcohol concentration test on a breath testing machine;
'(4) Under the influence of any drug or combination of drugs to a degree that
renders the person incapable of safely driving a vehicle; or
'(5) Under the influence of a combination of alcohol and any drug or drugs to a
degree that renders the person incapable of safely driving a vehicle.'" Gensler, 2016 WL
2610262, at *3 (quoting Wichita City Ordinance 11.38.150[a])."

We are guided in this inquiry by this court's recent decision in Gensler. Most
significa ntly, in Gensler, the defendant appealed from his sentence for felony DUI. He
argued that the trial court erred by using his two prior Wichita Municipal Court
convictions as prior convictions under K.S.A. 8-1567(i) to elevate his sentence to a
felony. The Gensler court held that

"[o]n their face, these two laws are identical in language and prohibit the same
conduct. But as Gensler points out, the definition of 'vehicle' under the municipal code
differs from the definition under the state code. K.S.A. 2015 Supp. 8-1485 states that
'"vehicle" means 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.'
(Emphasis added.) Wichita City Code Section 11.04.400 states: '"Vehicle" means every

7
 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.'

"As our Supreme Court recognized in City of Wichita v. Hackett, 275 Kan. 848,
852-53, 69 P.3d 621 (2003), these differing definitions make the municipal ordinance
broader than [the] state statute because '[o]perating a bicycle while under the influence,
though a violation of the city code, is not a DUI under K.S.A. 8-1567.' [Citation omitted.]
Because of this difference, the court in Hackett held that '[s]uch a conviction [of
operating a bicycle while under the influence] does not count for state sentencing
purposes concerning the instant offense or subsequent offenses.' [Citation omitted.]"
Gensler, 2016 WL 2610262, at *3.

As the Gensler court correctly held, the two laws were different because Wichita
City Ordinance 11.04.400 defined the term "vehicle" more broadly than the state statute.
At the time of Lamone's two municipal court DUI convictions, Wichita City Ordinance
11.04.400 deined "vehicle" as "every device in, upon or by which any person property is
or may be transported or drawn upon a highway, except devices used exclusively upon
stationary rails or tracks." Thus, the definition of vehicle found in Wichita City
Ordinance 11.04.400 is what actually made Wichita City Ordinance 11.38.150 different
than K.S.A. 2013 Supp. 8-1567. This difference—the definition of "vehicle"—was
acknowledged by our Supreme Court in Hackett. Therefore, there is no real dispute that
Wichita City Ordinance 11.38.150 was broader than the state statute. For example, it is
possible to get a DUI under the Wichita City Ordinance while operating a bicycle but not
possible to get a DUI under the state statute for performing the same act. See Hackett,
275 Kan. at 853.

In 2016, Wichita City Ordinance 11.04.400 was amended to read: "'Vehicle'
means 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

8
moved by human power or used exclusively upon stationary rails or tracks." The
definition now matches the definition of "vehicle" found in K.S.A. 2016 Supp. 8-1485.

At this point, Lamone asserts that our inquiry is complete. She specifically argues
that because Wichita City Ordinance 11.38.150 was broader than the state statute, her two
prior municipal court convictions cannot be used for State sentencing purposes. Yet, our
inquiry does not end here. We must consider if it was appropriate for the trial court to
invoke the modified categorical approach and look to the charging documents of
Lamone's two previous municipal court convictions to see what type of vehicle Lamone
was operating or attempting to operate when she was charged with the DUI offenses.

Does the Modified Categorical Approach Apply to the Wichita City Ordinance?

Here, the trial court considered the charging documents in Lamone's two prior
municipal court DUIs to determine what type of vehicle she was operating. The trial
court reasoned that if it could find that Lamone was operating a car rather than a bicycle,
it could use the two prior municipal court convictions for sentencing purposes. Lamone,
however, argues that the trial court made an improper finding of fact when it considered
the charging documents. We are guided in this inquiry by several decisions dealing with
this issue: Apprendi and Descamps, along with State v. Dickey, 301 Kan. 1018, 350 P.3d
1054 (2015), and the recently decided Mathis, 136 S. Ct. 2243.

The United States Supreme Court held in Apprendi that "[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."
530 U.S. at 490. "The policy rationale behind Apprendi is that a court violates the United
States Constitution if it invades the jury's territory by findings fact at sentencing." Dickey,
301 Kan. at 1036. In Descamps, the United States Supreme Court held that Apprendi is
implicated when a trial court makes findings of fact beyond the existence or elements of a

9
prior conviction for the purpose of increasing a defendant's sentence for a current
conviction. 133 S. Ct. 2283-85. The Descamps Court established two approaches that a
trial court may use to increase a defendant's sentence without running afoul of Apprendi.
133 S. Ct. at 2283-85. The two approaches were adopted by our Supreme Court in
Dickey. See 301 Kan. at 1037-39.

The first method is referred to as the categorical approach. In Dickey, our Supreme
Court discussed Descamps and the categorical approach:

"A sentencing court applies the categorical approach when the statute forming the basis
of the defendant's prior conviction contains a single set of elements constituting the
crime. A sentencing court simply compares 'the elements of the statute forming the basis
of the defendant's conviction with the elements of the "generic" crime.' [Citation
omitted.] 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 for sentence-enhancement purposes . . . . [Citation omitted.]" Dickey,
301 Kan. at 1037.

The second method is referred to as the modified categorical approach. Our
Supreme Court also discussed the modified categorical approach in Dickey:

"The modified categorical approach applies when the statute forming the basis of
the prior conviction is a 'divisible statute,' i.e., a statute which includes multiple,
alternative versions of the crime and at least one of the versions matches the elements of
the generic offense. [Citation omitted.] Naturally, when a defendant's prior conviction
arises under a divisible statute, a sentencing court cannot determine whether a defendant's
prior conviction constitutes a predicate offense under the ACCA by merely examining the
elements of the statute. Thus, without running afoul of Apprendi, a sentencing court is
permitted to look beyond the elements of the statute and examine a limited class of
documents to determine 'which of a statute's alternative elements formed the basis of the
defendant's prior conviction.' [Citation omitted.] Such documents include charging
documents, plea agreements, jury instructions, verdict forms, and transcripts from plea

10
 colloquies as well as findings of fact and conclusions of law from a bench trial. [Citation
omitted.]" 301 Kan. at 1037-38.

If the statute or the ordinance is not divisible, the modified categorical approach cannot
be used. Descamps, 133 S. Ct. at 2281-83.

The two approaches mandate that sentencing courts examining prior convictions
"do not engage in factfinding in violation of Apprendi by attempting to determine
whether a defendant's actions satisfied an element not contained within the statute under
which the defendant's prior conviction arose." Dickey, 301 Kan. at 1038 (citing
Descamps, 133 S. Ct. at 2281-87).

With these principles of law in mind, it becomes clear that our next question is
whether Wichita City Ordinance 11.38.150 is divisible. If the answer to that question is
yes, then the trial court was correct to utilize the charging documents from Lamone's two
prior municipal court convictions to determine what type of vehicle she was operating
when she was charged. If the answer to that question is no, then the trial court's actions
were improper.

The Gensler court answered this question in the affirmative, finding that

"[a]pplying the analysis in Dickey to Gensler's case, the Wichita municipal DUI
ordinance, including the definition of a vehicle, should be considered a divisible
ordinance because a conviction under the ordinance applies either to an automobile or a
bicycle, one of which matches a conviction under K.S.A. 8-1567. Thus, we apply the
modified categorical approach to determine whether a prior conviction may be used for
sentencing purposes. Under this approach, Gensler's sentencing judge was permitted to
examine the municipal court citations that clearly showed his convictions were based on
the operation of motor vehicles rather than a bicycle. This procedure did not constitute
impermissible judicial factfinding in violation of Descamps and Apprendi. The district
court correctly determined that Gensler's prior DUI convictions under the municipal
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 ordinance were based on the same acts prohibited by K.S.A. 8-1567. Therefore, the
district court did not err when it counted Gensler's two ordinance convictions as prior
convictions for sentencing purposes under K.S.A. 8-1567." 2016 WL 2610262, at *5.

But Lamone argues that the analysis from Gensler is incorrect in light of the
United States Supreme Court's recent holding in Mathis, 136 S. Ct. 2243. Furthermore,
we note that a petition for review has been filed in Gensler, which was decided before the
Mathis decision. The petitioner in Gensler, like Lamone, argues that the Gensler decision
was incorrect in light of Mathis. Thus, an analysis of Mathis is necessary to determine
whether the Wichita City Ordinance is divisible and whether the trial court erred in
considering Lamone's prior municipal court convictions.

In Mathis, the United States Supreme Court was tasked with answering whether a
prior conviction for burglary under Iowa state law could be used to enhance a sentence
under the Armed Career Criminal Act. The Court noted that the Iowa statute represented
a uniquely phrased law, "not one that lists multiple elements disjunctively, but instead
one that enumerates various factual means of committing a single element. [Citation
omitted.]" 136 S. Ct. at 2249. The Court found that the Iowa burglary statute had a
broader "locational element" than generic burglary, which had a locational element of
"building or other structure." 136 S. Ct. at 2250. This was because Iowa's statute allowed
for burglary of "'any building, structure, [or] land, water, or air vehicle.' [Citation
omitted.]" 136 S. Ct. at 2250. The Court found that the additional locations listed in the
Iowa statute were not alternative elements but instead were "alternative ways of
satisfying a single locational element." 136 S. Ct. at 2250.

In its analysis, the Mathis Court produced an example that proves particularly
relevant to Lamone's appeal. The Court posed the following hypothetical:

12
 "[S]uppose a statute requires use of a 'deadly weapon' as an element of a crime and
further provides that the use of a 'knife, gun, bat, or similar weapon' would all qualify.
[Citations omitted.] Because that kind of list merely specifies diverse means of satisfying
a single element of a single crime—or otherwise said, spells out various factual ways of
committing some component of the offense—a jury need not find (or a defendant admit)
any particular item: A jury could convict even if some jurors 'conclude[d] that the
defendant used a knife' while others 'conclude[d] he used a gun,' so long as all agreed that
the defendant used a 'deadly weapon.' [Citations omitted.] And similarly, to bring the
discussion back to burglary, a statute might . . . itemize the various places that crime
could occur as disjunctive factual scenarios rather than separate elements, so that a jury
need not make any specific findings (or a defendant admissions) on that score." 136 S.
Ct. at 2249.

This kind of hypothetical has been similarly acknowledged by our Supreme Court
in State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012). The court there held that

"a legislature may list additional alternatives or options within one alternative means of
committing the crime. But these options within an alternative do not constitute further
alternative means themselves if they do not state additional and distinct ways of
committing the crime, that is, if they do not require proof of at least one additional and
distinct material element. Rather they are only options within a means if . . . their role is
merely to describe a material element or to describe the factual circumstances in which a
material element may be proven. [Citation omitted.]" Brown, 295 Kan. at 196-97.

The Mathis Court stated that the threshold inquiry is whether the alternative
language in a statute sets out elements or means. 136 S. Ct. at 2256. The Mathis Court
considered an Iowa Supreme Court case that expressly held that the alternative language
in the Iowa statute listed means and not elements. The Mathis Court also noted that the
elements or means question may be resolved by the statutory language itself. 136 S. Ct. at
2256. This proves particularly helpful in our case.

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 Here, Wichita City Ordinance 11.38.150 states: "No person shall operate or
attempt to operate any vehicle within the city . . . ." The ordinance goes on to prohibit
certain conduct identical to that of the state statute. As we have established, the only
difference between the ordinance and the statute was the definition of "vehicle" provided
in the prior version of Wichita City Ordinance 11.04.400. Much like "deadly weapon" in
the hypothetical from Mathis, "operat[ing] or attempt[ing] to operate any vehicle" is the
element from Wichita City Ordinance 11.38.500. Put another way, the definition of
"vehicle" concerns a kind of "vehicle element" similar to the "locational element" in
Mathis. The definition of "vehicle," then, is similar to the "knife, gun, bat, or similar
weapon" language in the Mathis hypothetical or the additional locational language in the
Iowa statute. That is, the definition of "vehicle" from 11.04.400 merely enumerated
additional factual ways of committing the crime of DUI by "operat[ing] or attempt[ing] to
operate any vehicle."

Moreover, our Supreme Court has held that "[o]ptions within a means or
definitional statutory language that merely elaborates on elements rather than defining
the subject crime signals secondary matter that does not raise an alternative means issue."
(Emphasis added.) Brown, 295 Kan. 181, Syl. ¶ 10. This is additional support for our
conclusion that the broader definition of "vehicle" in the municipal ordinance did not
create an alternative element but rather created additional factual ways of satisfying the
true element—operating or attempting to operate any vehicle.

The State argues, however, that the trial court "made a legal finding that [Lamone]
was operating a motor vehicle at the time of her prior convictions by properly utilizing
the modified categorical approach." The State bases its argument on the Hackett decision,
positing that "[t]he Hackett court only allowed those convictions for DUI on a bicycle
under the city code to be excised from criminal history in subsequent State law DUI
sentencings." The State goes on to specifically argue that "[i]f the Wichita Code's
definition of 'vehicle' merely created alternative means through which the element of

14
operating a vehicle could be proven, then Apprendi precluded our Supreme Court from
differentiating between DUI convictions under W.M.O. 11.38.150 committed in a car or
motorized vehicle, and a bicycle or human powered vehicle."

We must note, though, that the Hackett opinion did not discuss Apprendi. Instead,
the court focused on the narrow issue of whether "a conviction for DUI as defined under
the City ordinance qualif[ies] as a conviction under K.S.A. 8-1567." Hackett, 275 Kan. at
849. Initially, the court answered this question with a simple "[n]o." Hackett, 275 Kan. at
849. Later, though, the court held that "[o]perating a bicycle while under the influence,
though a violation of the city code, is not a DUI under K.S.A. 8-1567. Such a conviction
therefore does not count for state sentencing purposes concerning the instant offense or
subsequent offenses." Hackett, 275 Kan. at 853. We must note that any argument that the
Hackett decision stands for the proposition that the Wichita City Ordinance is divisible is
based on inferences drawn from the opinion's language and not the language of the
opinion itself.

Finding that the Wichita City Ordinance is not divisible, as outlined earlier, we
note that would do nothing to upset the holding from Hackett. It would still be that a prior
municipal conviction for DUI on a bicycle under Wichita City Ordinance 11.38.150
could not be used as a prior conviction for state sentencing purposes under K.S.A. 8-
1567(i). Based on the holding and analysis from Mathis, in addition to our own Supreme
Court's holding in Brown, the Wichita City Ordinance is not divisible. Thus, the modified
categorical approach was not appropriate in this case.

Thus, much like the various factual ways of fulfilling the single locational element
of the Iowa burglary statute in Mathis, the definition of "vehicle" did not create an
alternative element but only enumerated one or more factual ways of committing a single
offense of DUI by "operat[ing] or attempt[ing] to operate any vehicle." Therefore, as it
relates to the definition of "vehicle," the Wichita City Ordinance is not divisible because

15
it is not "a statute which includes multiple, alternative versions of the crime and at least
one of the versions matches the elements of the generic offense." See Dickey, 301 Kan. at
1037. Accordingly, the modified categorical approach was not appropriate, and the trial
court should not have consulted the charging documents to determine what type of
"vehicle" Lamone was operating leading to her prior Wichita convictions for DUI.

Still, as the dissent points out, this leaves us questioning whether Lamone's prior
convictions may be used under the categorical approach. That question has been all but
answered. The dissent asserts that because the Wichita ordinance prohibits the acts that
are prohibited by the state statute, under the categorical approach Lamone's prior Wichita
convictions can be used to enhance her sentence. We have difficulty in concluding, as the
dissent does, that the previous Wichita convictions can be used to enhance Lamone's
sentence under the categorical approach.

The categorical approach is appropriate when two statutes being compared contain
a single set of elements. If the elements in the statute controlling the prior convictions are
the same or narrower than the statute controlling the present crime of conviction, then
the prior convictions may be used to enhance a defendant's sentence. Dickey, 301 Kan. at
1037. But our Supreme Court's holding from Hackett shows that the "vehicle" element in
ordinance 11.38.150 was not the same or narrower than the "vehicle" element in the state
statute. When Lamone was convicted of DUI in municipal court, Wichita City Ordinance
11.38.150 and the state statute were facially the same. But we have clearly shown that the
Wichita ordinance punished a broader class of conduct than the state statute. This is
because based on the definition of "vehicle" provided in Wichita City Ordinance
11.04.400, an individual could have been convicted of a DUI while riding a bicycle under
Wichita City Ordinance 11.38.150 but an individual could not have been convicted of a
DUI while riding a bicycle under the state statute. Thus, while the elements of the
ordinance and statute were facially the same, it cannot be said that the actual elements of

16
the ordinance were the same or narrower than those of the statute. Such a holding would
run contrary to our Supreme Court's holdings from Hackett and Dickey.

In conclusion, the modified categorical approach was not appropriate because the
Wichita ordinance is not divisible. Moreover, under the categorical approach, as
evidenced by our Supreme Court's holding from Hackett, the Wichita ordinance's
elements were not the same or narrower than the state statute's elements. For those
reasons, the trial court erred in using Lamone's two prior municipal court convictions as a
basis for convicting her with felony DUI under K.S.A. 2013 Supp. 8-1567(b)(1)(D).

Nevertheless, without ever expressly saying so, the State argues that Lamone
invited the error of which she now complains. Generally, a litigant is not allowed to
invite error and then complain of that error on appeal. State v. Verser, 299 Kan. 776, 784,
326 P.3d 1046 (2014). But a defendant's stipulation to the legal effect of his or her prior
convictions for the purpose of criminal history may be later challenged and is not barred
by the invited error doctrine. State v. Hankins, 304 Kan. 226, 230-31, 372 P.3d 1124
(2016).

The State specifically argues that

"assuming that the vehicle used for a DUI under the municipal code was a fact [and] not
an element, it was [Lamone] who begged the district court to consider the facts of her
prior convictions. . . . Her hope was that the district court would look beyond the primary
elements of DUI in the Wichita Code and Kansas Statute to the definition of vehicle and
accept her position that because WMO 11.38.150 covers behavior identical to that
covered by K.S.A. 8-1567, plus additional behavior, no priors under WMO 11.38.150 can
be counted as priors in subsequent State sentencing proceedings."

The State further argues that "[a]t [the] bench trial, the State directed the district court
only to the stipulated facts. [Lamone], on the other hand, re-raised her challenge to her

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priors. This decision put the facts of her prior convictions squarely in the sights of the
fact finder."

Here, though, Lamone did not stipulate to the legal effect of her prior convictions.
Instead, she challenged the legal effect of her prior convictions every step of the way—
challenging the admissibility and legal effect of the convictions at trial and again
challenging the legal effect on appeal. Following the State's reasoning would mean that
Lamone would have had to sit idly by and even stipulate to the fact that she had two prior
convictions from the Wichita Municipal Court. We reject the State's reasoning. Lamone
was entitled to challenge the use of those convictions for sentencing purposes.
Furthermore, we have already established that the trial court improperly used the
modified categorical approach in this matter. Thus, the trial court was not invited to err
by Lamone—the trial court simply made an error. As a result, the State's argument fails.

Sentence vacated and case remanded to the trial court with directions to resentence
Lamone without using or considering her two prior Wichita Municipal Court convictions
for the purpose of resentencing her under K.S.A. 2016 Supp. 8-1567.

***

GARDNER, J., dissenting: I respectfully dissent and would affirm.

The majority shows, convincingly, that "the definition of 'vehicle'" in the Wichita
ordinance enumerated different factual ways of "'operat[ing] or attempt[ing] to operate
any vehicle.'" Slip op. at 13. One can operate a Toyota, as Lamone did, or operate a
bicycle, as Hackett did. Either way, one was operating a vehicle. Thus the majority
concludes that the Wichita ordinance contains a single set of elements.

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 The categorical approach applies when a statute or ordinance that is the basis for a
prior conviction contains a single set of elements. State v. Dickey, 301 Kan. 1018, 1037,
350 P.3d 1054 (2015). Generally, under the categorical approach, we compare the
elements of the prior conviction to the elements of the current offense. Specifically, in
this case, for the purpose of determining whether a conviction is a first, second, third,
fourth, or subsequent conviction in sentencing, convictions for a violation of an ordinance
which prohibits the acts that the state DUI law prohibits shall be taken into account.
K.S.A. 2016 Supp. 8-1567(i).

The elements of the ordinance under which Lamone was previously convicted are,
as the majority acknowledges, identical to the elements of her current DUI offense. The
only difference between the two is the definition of "vehicle," but those definitions do not
create different elements and are merely additional factual ways of satisfying the element
of operating or attempting to operate a vehicle. The Wichita ordinance thus prohibits the
acts that the state DUI law prohibits. Therefore, under K.S.A. 2016 Supp. 8-1567(i),
those convictions shall be used for sentencing purposes.

Alternatively, assuming that the definition of "vehicle" in Wichita ordinance
11.04.400 set out alternative elements, and not just various factual means of satisfying the
"vehicle" element, the Wichita municipal DUI ordinance is divisible. This is because a
conviction under the ordinance applied either to an automobile or a bicycle, and one of
those elements matched a conviction under K.S.A. 8-1567. State v. Gensler, No. 112,523,
2016 WL 2610262, at *5 (Kan. App. 2016) (unpublished opinion). Under that approach,
Lamone's sentencing judge was permitted to examine the municipal court citations upon
which her prior convictions were based. See Dickey, 301 Kan. at 1038 (permitting the
court, when using a modified categorical approach, to review documents including the
"charging documents, plea agreements, jury instructions, verdict forms, and transcripts
from plea colloquies as well as findings of fact and conclusions of law from a bench

19
trial"). Those charging documents show that Lamone's convictions were based on her
operation of a Toyota and not a bicycle.

Lamone's prior convictions were for violating an ordinance which prohibited the
acts prohibited by our state DUI law. Therefore, the district court did not err in counting
her two ordinance convictions as prior convictions for sentencing purposes under K.S.A.
8-1567.

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