State v. Myers

No. 122,046

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JESSICA LYNN MYERS,
Appellee.

SYLLABUS BY THE COURT

1.
Whether jurisdiction exists is a question of law over which an appellate court has
unlimited review.

2.
Kansas appellate courts have jurisdiction to entertain a State's appeal only if it is
taken within the time limitations and in the manner prescribed by the applicable statutes.

3.
K.S.A. 2019 Supp. 22-3603 is intended to permit appellate review of trial court
rulings on pretrial motions which may be determinative of the case.

4.
In an interlocutory appeal, the prosecutor should be prepared to make a showing to
the appellate court that the pretrial order of the district court appealed from substantially
impairs the State's ability to prosecute the case.

1
5.
The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. 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. Only if the statute's language or text is unclear or ambiguous
does the court resort to legislative history to construe the Legislature's intent.

6.
K.S.A. 2019 Supp. 8-1567(j)(3) invites impermissible judicial fact-finding in
violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), by giving courts broad discretion to determine whether a defendant committed the
out-of-jurisdiction offense in a manner similar enough to K.S.A. 2019 Supp. 8-1567.

7.
Under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), and the categorical approach in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054
(2015), a sentencing court cannot engage in judicial fact-finding beyond the existence of a
prior conviction to enhance the defendant's sentence.

8.
Nothing in the plain language of K.S.A. 2019 Supp. 8-1567(j)(2) and (3) prevents
courts from following the identical-to-or-narrower-than rule in State v. Wetrich, 307 Kan.
552, 412 P.3d 984 (2018).

9.
Applying the bright-line rule established in Wetrich standardizes the classification
of prior out-of-state convictions to be counted only if the elements of the out-of-state
statute are identical to or narrower than Kansas' DUI statute.

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 Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed October 2, 2020.
Affirmed.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellant.

Adam D. Stolte, of Stolte Law, LLC, of Overland Park, for appellee.

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

SCHROEDER, J.: Jessica Lynn Myers was charged with felony driving under the
influence (DUI), third offense. After Myers waived her preliminary hearing and pled not
guilty, she moved to strike her two prior Missouri convictions for driving while intoxicated
(DWI) from being used to elevate her current DUI charge to a felony. The district court
granted Myers' motion, and the State timely filed this interlocutory appeal. On appeal, the
only jurisdictional basis the State invokes is its right to appeal from a motion to suppress
under K.S.A. 2019 Supp. 22-3603. We find we have jurisdiction to hear the State's appeal
under K.S.A. 2019 Supp. 22-3603, but we disagree with the State's arguments on the
merits. The district court did not err when it held Myers' two prior Missouri DWI
convictions could not be used to elevate her current charge to a felony DUI. We affirm the
district court.

FACTS

Myers was arrested in Johnson County on February 14, 2019, for DUI. The State
charged Myers with felony DUI, third offense, under K.S.A. 2018 Supp. 8-1567(b)(1)(D),
based on her 2002 and 2010 Missouri DWI convictions under Mo. Rev. Stat. § 577.010.

Myers waived her preliminary hearing and was bound over for trial on felony DUI.
She then pled not guilty to the charge. Myers timely moved to strike her prior Missouri

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DWI convictions from her criminal history, arguing her prior convictions could not be
used to elevate her current DUI charge to a felony. Myers claimed the Missouri DWI
statute was broader than Kansas' DUI statute and therefore failed the comparability
analysis set out in K.S.A. 2019 Supp. 8-1567(i)(3) and (j).

The district court granted Myers' motion. Relying on the identical-to-or-narrower-
than rule set out in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), and the
categorical approach in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I),
the district court agreed with Myers' argument and found her prior Missouri DWI
convictions were not comparable to Kansas DUI because the elements of the Missouri
DWI statute were broader than the Kansas DUI statute. In doing so, the district court
recognized it had to analyze the statutory definition of "comparable" offense as used in
K.S.A. 2019 Supp. 8-1567(i)(3) within the constraints of Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

The district court issued its ruling striking Myers' Missouri DWI convictions from
her criminal history. The district court, however, did not dismiss the felony DUI charge.
The State, in its notice of appeal, appealed under K.S.A. 2019 Supp. 22-3603, K.S.A. 2019
Supp. 22-3602, and K.S.A. 2019 Supp. 21-6820.

ANALYSIS

I. We have jurisdiction over the State's appeal under K.S.A. 2019 Supp. 22-3603.

Myers argues we lack jurisdiction over the State's appeal. Whether jurisdiction
exists is a question of law over which this court has unlimited review. The right to appeal
is entirely statutory and is not contained in the United States or Kansas Constitutions. If a
party appeals in a manner not prescribed by statutes, we must dismiss the appeal. See State
v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016).

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 In a criminal case, the State's right to appeal is limited by the jurisdictional bases
provided by statute. Kansas appellate courts have "jurisdiction to entertain a State's appeal
only if it is taken within time limitations and in the manner prescribed by the applicable
statutes. State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010)." State v. Mburu, 51 Kan.
App. 2d 266, 269-70, 346 P.3d 1086 (2015).

Here, the State's notice of appeal invoked our jurisdiction under K.S.A. 2019 Supp.
22-3603, K.S.A. 2019 Supp. 22-3602, and K.S.A. 2019 Supp. 21-6820. However, in its
brief, the State only addresses our jurisdiction within the parameters of K.S.A. 2019 Supp.
22-3603, which provides:

"When a judge of the district court, prior to the commencement of trial of a
criminal action, makes an order . . . suppressing evidence . . . an appeal may be taken by
the prosecution from such order if notice of appeal is filed within 14 days after entry of the
order."

The other jurisdictional bases asserted in the State's notice of appeal have not been
addressed in the State's brief. Accordingly, any potential arguments the State could have
made under these bases are waived or abandoned. See State v. Arnett, 307 Kan. 648, 650,
413 P.3d 787 (2018) (issues not briefed deemed waived or abandoned); State v. Berreth,
294 Kan. 98, 115-16, 273 P.3d 752 (2012) ("[T]he State [is] unable to expand its elected,
and repeatedly asserted, statutory basis for jurisdiction in the Court of Appeals.").

There is no question the State appealed from the district court's order within the 14-
day time limit. But Myers argues proof of a prior conviction is not an element of trial proof
for a DUI conviction; therefore, the district court's order did not suppress evidence within
the meaning of K.S.A. 2019 Supp. 22-3603.

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 To resolve this jurisdictional dispute, we consider Kansas appellate court decisions
interpreting what an order "suppressing evidence" under K.S.A. 2019 Supp. 22-3603
entails. In State v. Boling, 5 Kan. App. 2d 371, 374, 617 P.2d 102 (1980), a panel of this
court addressed the issue by turning to sections of the Kansas Code of Criminal
Procedure—K.S.A. 22-3215, authorizing a pretrial motion to suppress a confession or
admission, and K.S.A. 22-3216, authorizing a pretrial motion to suppress illegally seized
evidence. The Boling court held these two sections, taken together with K.S.A. 22-3603,
provide a statutory scheme for dealing with evidentiary rulings having "constitutional
dimensions." 5 Kan. App. 2d at 374.

Later, in State v. Newman, 235 Kan. 29, 34, 680 P.2d 257 (1984), the Kansas
Supreme Court interpreted K.S.A. 22-3603 more broadly:

"We hold that the term 'suppressing evidence' as used in [K.S.A. 22-3603] is to have a
broader meaning than the suppression of evidence which is illegally obtained. It should
include not only 'constitutional suppression' but also rulings of a trial court which exclude
state's evidence so as to substantially impair the state's ability to prosecute the case."

Thus, under Newman, an order "suppressing evidence" under K.S.A. 22-3603 can also
include a district court's ruling admitting or excluding evidence based on the statutory rules
of evidence in K.S.A. 60-401 et seq. See State v. Sales, 290 Kan. 130, 135-36, 224 P.3d
546 (2010). But the Newman court emphasized the State is not allowed to file an
interlocutory appeal from every "run-of-the-mill pretrial evidentiary ruling of a district
court." 235 Kan. at 35. Rather, K.S.A. 22-3603 "is intended to permit appellate review of
trial court rulings on pretrial motions which may be determinative of the case." 235 Kan. at
35. Thus, "the prosecutor should be prepared to make a showing to the appellate court that
the pretrial order of the district court appealed from substantially impairs the state's ability
to prosecute the case." 235 Kan. at 35.

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 Here, the district court's order did not entail constitutional suppression under K.S.A.
22-3215 or K.S.A. 22-3216. Nor did the order involve the exclusion of evidence based on
the statutory rules of evidence, which generally concerns the exclusion of evidence from
trial. See, e.g., State v. McDaniels, 237 Kan. 767, 771, 703 P.2d 789 (1985) (district
court's order denying State's motion for revocation of diversion agreement was not order
suppressing evidence); State v. Grimes, 229 Kan. 143, 147-48, 622 P.2d 143 (1981) (issue
State raised did not fall within K.S.A. 22-3603 because issue did not need to be resolved
for prosecution to proceed with trial and prove its case). In Kansas, "a prior DUI is a
sentencing enhancement factor for, not an element for trial proof of, K.S.A. 8-1567 DUI."
State v. Key, 298 Kan. 315, 319, 312 P.3d 355 (2013); see State v. Loudermilk, 221 Kan.
157, 160, 557 P.2d 1229 (1976) (prior DUI conviction not element of substantive crime,
serves only to enhance punishment). Thus, the district court's order does not fall squarely
within Boling's or Newman's interpretation of an order suppressing evidence.

Even so, the State argues under Newman, the order substantially impairs its ability
to prosecute the case. DUI can be classified as either a nonperson misdemeanor or a
nonperson felony. See K.S.A. 2019 Supp. 8-1567(b)(1). If a defendant has 2 prior DUI
convictions, one of which occurred in the last 10 years, the third conviction is a nonperson
felony offense. K.S.A. 2019 Supp. 8-1567(b)(1)(D). A defendant's prior out-of-state
conviction can also be classified as a prior DUI conviction if the out-of-state offense is
comparable to Kansas DUI. See K.S.A. 2019 Supp. 8-1567(i)(3)(B); K.S.A. 2019 Supp. 8-
1567(j). Myers' felony DUI charge rested upon her two prior Missouri DWI convictions.

Through her motion to strike, Myers properly challenged her prior convictions
before trial. See Key, 298 Kan. at 322-23. In granting Myers' motion, the district court
found Myers' Missouri DWI convictions were not comparable to Kansas DUI and
essentially held no felony had been committed. As the State correctly argues, the district
court's order eliminated its ability to convict Myers of felony DUI. Even if the State chose
to amend Myers' charge to misdemeanor DUI, the State would still have to prove every

7
substantive element of DUI under K.S.A. 2019 Supp. 8-1567(a) in order for Myers to be
convicted of misdemeanor DUI. Therefore, the misdemeanor DUI conviction would mean
the State would be statutorily barred from later prosecuting Myers for felony DUI. See
K.S.A. 2019 Supp. 21-5110 (effect of former prosecution). Further, the State argues if
Myers is convicted of misdemeanor DUI, the State could not seek a felony DUI sentence.
According to the State, because the district court's order substantially impaired its ability to
prosecute the case as a felony DUI, it has the right to appeal under K.S.A. 2019 Supp. 22-
3603.

We find the State's reasoning persuasive. DUI is unique in that even though a
defendant's prior convictions are not elements of trial proof, the inclusion of a defendant's
prior convictions as an elevating factor for felony DUI dictates how a defendant may be
sentenced upon conviction. Here, even though the district court's order essentially found
no felony had been committed, it did not officially dismiss Myers' felony DUI charge. The
State should have asked the district court to clarify its ruling and dismiss Myers' felony
DUI charge. Doing so would have enabled the State to invoke its right to appeal from an
order dismissing a complaint under K.S.A. 2019 Supp. 22-3602(b)(1). Nevertheless, under
these facts, we find the district court's order substantially impaired the State's ability to
prosecute the DUI as a felony charge. The State's use of K.S.A. 2019 Supp. 22-3603 was
sufficient to invoke our jurisdiction to hear this appeal.

II. Myers' Missouri DWI convictions cannot be used to elevate her current Kansas
DUI charge to a felony.

Turning to the merits, the district court's order struck Myers' prior convictions based
on its statutory interpretation of K.S.A. 2019 Supp. 8-1567. Accordingly, this issue
presents a question of law subject to unlimited review. State v. Alvarez, 309 Kan. 203, 205,
432 P.3d 1015 (2019).

8
 The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. 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. Only if the statute's language or text is unclear or ambiguous
does the court resort to legislative history to construe the Legislature's intent. State v.
LaPointe, 309 Kan. 299, 314-15, 434 P.3d 850 (2019).

"Kansas' DUI law [K.S.A. 2019 Supp. 8-1567] is a self-contained criminal statute,
which means that all essential components of the crime, including the elements, severity
levels, and applicable sentences, are included within the statute." State v. Reese, 300 Kan.
650, 654, 333 P.3d 149 (2014). Relevant here, K.S.A. 2019 Supp. 8-1567(b)(1) classifies
the offense as either a felony or misdemeanor and sets out the penalty for the offense based
on a defendant's prior DUI convictions.

Effective July 1, 2018, the Legislature amended the portion of the DUI statute that
governs how a prior out-of-state conviction can be classified as a prior offense—and
consequently—whether that prior conviction can be used to elevate the severity of the DUI
charge from a misdemeanor to a felony and the resulting sentence. The 2018 amendments
apply here because they were in effect at the time of Myers' current offense. See State v.
Rice, 308 Kan. 1510, 1512, 430 P.3d 430 (2018).

Before the 2018 amendments, K.S.A. 2017 Supp. 8-1567(i)(1) and (3) provided:

"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

9
 alleging any such violations, shall be taken into account, but only convictions or diversions
occurring on or after July 1, 2001.

....

"(3) 'conviction' includes: . . . (B) conviction of a violation of . . . any law of
another state which would constitute a crime described in subsection (i)(1) or (i)(2)."
(Emphases added.)

While K.S.A. 2019 Supp. 8-1567(i)(1) remained relatively unchanged from 2017, K.S.A.
2019 Supp. 8-1567(i)(3)(B) now provides: "'conviction' includes: . . . conviction of a
violation of . . . any law of another jurisdiction that would constitute an offense that is
comparable to the offense described in subsection (i)(1) or (i)(2)." (Emphases added.)

The Legislature also added three criteria for courts to determine whether another
jurisdiction's law is comparable:

"(j) For the purposes of determining whether an offense is comparable, the
following shall be considered:

(1) The name of the out-of-jurisdiction offense;

(2) the elements of the out-of-jurisdiction offense; and

(3) whether the out-of-jurisdiction offense prohibits similar conduct to the conduct
prohibited by the closest approximate Kansas offense." K.S.A. 2019 Supp. 8-1567(j).

K.S.A. 2019 Supp. 8-1567(j)(1) and (2) instruct courts to consider the out-of-
jurisdiction offense's name and elements. And under K.S.A. 2019 Supp. 8-1567(j)(3),
courts must also consider "whether the out-of-jurisdiction offense prohibits similar conduct
to the . . . closest approximate Kansas offense." The State argues the three criteria under

10
K.S.A. 2019 Supp. 8-1567(j) operate like a nonexclusive factor test and, "[w]hen taken in
total, these three factors favor finding the Missouri statute prohibiting [DWI is]
comparable to the Kansas counterpart." Following the State's analysis, then, Missouri DWI
must be comparable to Kansas DUI under at least two of K.S.A. 2019 Supp. 8-1567(j)'s
three factors. But the State concedes that Myers' prior convictions would not be
comparable to DUI under K.S.A. 2019 Supp. 8-1567(j)(2) because the elements of
Missouri's DWI statute are broader than Kansas' DUI statute.

As a panel of this court found in State v. Stanley, 53 Kan. App. 2d 698, 700, 390
P.3d 40 (2016), Kansas' DUI statute criminalizes two acts: "(1) operating or attempting to
operate a vehicle with a blood- or breath-alcohol level of .08 or more; and (2) operating or
attempting to operate a vehicle while under the influence of alcohol and/or drugs to a
degree that renders the person incapable of safely driving the vehicle." See K.S.A. 2019
Supp. 8-1567(a).

Myers was convicted of Missouri DWI in 2002 and 2010. The statute of conviction
provided: "A person commits the crime of 'driving while intoxicated' if he operates a
motor vehicle while in an intoxicated or drugged condition." Mo. Rev. Stat. 577.010(1)
(2002 & 2010 Supp.). "[A] person is in an 'intoxicated condition' when he is under the
influence of alcohol, a controlled substance, or drug, or any combination thereof."
(Emphasis added.) Mo. Rev. Stat. 577.001(3) (2002 & 2010 Supp.).

The Stanley panel interpreted the same DWI statute at issue in this case and found:

"The Missouri statute on its face is too broad to count as a prior conviction under
K.S.A. 2012 Supp. 8-1567(i). Clearly, driving 'under the influence' of alcohol covers a
wider range of activity than driving under the influence of alcohol 'to a degree that renders
the person incapable of safely driving a vehicle' or 'driving with an alcohol concentration
of .08 or more.'" 53 Kan. App. 2d at 701.

11
Thus, as Stanley clearly resolved, the elements of Missouri DWI are broader than Kansas
DUI. See State v. Mejia, 58 Kan. App. 2d 229, 241, 466 P.3d 1217 (2020) (presuming
Missouri DWI statute broader than Kansas DUI statute.

The State reasons that even if the elements of Missouri DWI are broader than
Kansas DUI, Missouri DWI nonetheless prohibits "similar conduct" to DUI under K.S.A.
2019 Supp. 8-1567(j)(3). However, K.S.A. 2019 Supp. 8-1567(j)(3) invites impermissible
judicial fact-finding in violation of Apprendi by giving courts broad discretion to
determine whether a defendant committed the out-of-jurisdiction offense in a manner
similar enough to K.S.A. 2019 Supp. 8-1567. Individual sentencing courts gauging
whether the prior out-of-jurisdiction conviction is similar enough to Kansas' DUI statute
could lead to drastically different results. The only way to achieve any semblance of
uniformity would be for the sentencing court to investigate the specific underlying facts of
the prior offense. But Apprendi held a sentencing court cannot engage in judicial fact-
finding beyond the existence of a prior conviction to enhance the defendant's sentence. 530
U.S. at 490. While the classification of a prior conviction is generally strictly a matter of
statutory construction, the Kansas Supreme Court has recognized Apprendi's constitutional
considerations can be unavoidable. See State v. Dickey, 305 Kan. 217, 221, 380 P.3d 230
(2016) (Dickey II) (classification of prior crimes has a "thick overlay of constitutional
law"); Dickey I, 301 Kan. at 1035-37 (adopting Apprendi constitutional protections).

A. Apprendi requires us to apply the criteria in K.S.A. 2019 Supp. 8-1567(j)
using Wetrich's identical-to-or-narrower-than rule.

Even though Myers has not been sentenced yet, Apprendi is relevant at this stage
because K.S.A. 2019 Supp. 8-1567 remains fully self-contained. See Reese, 300 Kan. at
654. K.S.A. 2019 Supp. 8-1567(i) requires the district court to examine the criteria under
K.S.A. 2019 Supp. 8-1567(j) "in sentencing." The sentences set out in K.S.A. 2019 Supp.
8-1567(b)(1) turn on whether the defendant has any prior convictions as defined by K.S.A.

12
2019 Supp. 8-1567(i). But nothing in the DUI statute differentiates between the legal
definition of a prior conviction for sentencing purposes and the classification purposes
through a motion to strike. Thus, K.S.A. 2019 Supp. 8-1567(i) and, consequently, K.S.A.
2019 Supp. 8-1567(j) still provide the relevant legal definition for whether a prior
conviction can be used as an elevating factor to bind a defendant over for trial on a felony
DUI charge. Because K.S.A. 2019 Supp. 8-1567(b) ties the classification of the offense as
a felony or misdemeanor to a defendant's prior convictions and elevates the penalty for the
offense based on the same prior convictions, a district court must conduct the same
analysis under K.S.A. 2019 Supp. 8-1567(j)(3) for a motion to strike as it would at
sentencing.

To avoid impermissible fact-finding in violation of Apprendi, we must apply K.S.A.
2019 Supp. 8-1567(j)(3) using the identical-to-or-narrower-than rule in Wetrich, 307 Kan.
at 562. With this approach, the criteria in K.S.A. 2019 Supp. 8-1567(j)(2) and (3)
essentially collapse into one elements-based comparison. Because the elements of
Missouri DWI are broader than Kansas' DUI statute, Myers' prior convictions are not
comparable under K.S.A. 2019 Supp. 8-1567(j)(3) for the same reason they are not
comparable under K.S.A. 2019 Supp. 8-1567(j)(2). This approach reconciles K.S.A. 2019
Supp. 8-1567(j)'s factors as a whole, consistent with their plain meaning, and construes
K.S.A. 2019 Supp. 8-1567(j) in a constitutional manner. See Blue Cross & Blue Shield of
Kansas, Inc. v. Praeger, 276 Kan. 232, 276-77, 75 P.3d 226 (2003) (courts have duty to
construe statutes in constitutional manner if it can be done). Because Myers' prior Missouri
DWI convictions are not comparable to DUI under both K.S.A. 2019 Supp. 8-1567(j)(2)
and (3), they do not constitute prior convictions and cannot be used to elevate her current
DUI charge to a felony.

Furthermore, because the Missouri DWI statute is not divisible, we cannot look to
additional documents to determine whether the conduct leading to Myers' prior convictions
would have fallen within the acts proscribed by K.S.A. 2019 Supp. 8-1567. "A sentencing

13
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." Dickey I, 301
Kan. at 1037. Mo. Rev. Stat. 577.001(3) broadly defines the term "intoxicated condition"
as being "under the influence of alcohol, a controlled substance, or drug, or any
combination thereof" without providing any way to determine which conduct might have
been involved in a particular prosecution. Under the categorical approach, we can only
apply an elements-based comparison of the Missouri DWI statute and the Kansas DUI
statute and cannot look to a charging document or journal entry to determine whether
Myers operated a vehicle in an "intoxicated condition" in the manner covered under the
narrower definition found in K.S.A. 2019 Supp. 8-1567(a). See Dickey I, 301 Kan. at 1037
(categorical approach requires courts to compare "'the elements of the statute forming the
basis of the defendant's conviction with the elements of the "generic" crime'").

Nothing in the plain language of K.S.A. 2019 Supp. 8-1567(j)(2) and (3) prevents
courts from following Wetrich's identical-to-or-narrower-than rule. K.S.A. 2019 Supp. 8-
1567(j)(2) instructs the court to consider "the elements of the out-of-jurisdiction offense."
K.S.A. 2019 Supp. 8-1567(j)(3) further instructs the court to consider "whether the out-of-
jurisdiction offense prohibits similar conduct to" K.S.A. 2019 Supp. 8-1567. However,
K.S.A. 2019 Supp. 8-1567(j)(3) does not explicitly direct courts how to determine whether
an out-of-jurisdiction offense prohibits similar conduct. Applying the bright-line rule
established in Wetrich standardizes the classification of prior out-of-state convictions to be
counted only if the elements of the statute are identical to or narrower than the Kansas
DUI statute.

In reaching this result, we also rely on State v. Gensler, 308 Kan. 674, 681, 685,
423 P.3d 488 (2018), where our Supreme Court applied the identical-to-or-narrower-than
rule to the 2017 predecessor DUI statute. There, the district court used the defendant's
prior DUI convictions under a Wichita municipal ordinance to enhance his state sentence.
Finding the Wichita ordinance's definition of "vehicle" to be an indivisible element of the

14
crime, the Gensler court applied the categorical approach generally utilized in the
comparability analysis for the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A.
2019 Supp. 21-6801 et seq. The court found the ordinance's definition of "vehicle" was not
identical to or narrower than K.S.A. 2017 Supp. 8-1567 and, therefore, Gensler's prior
convictions under the ordinance could not be used to enhance his state sentence. 308 Kan.
at 683-85. The court noted: "To determine the precise nature of the 'vehicle' Gensler was
operating would require a sentencing court to engage in its own fact-finding, which is
impermissible." 308 Kan. at 685; see Apprendi, 530 U.S. at 490 (sentencing court's fact-
finding is limited).

While the 2018 amendments to Kansas' DUI statute were inapplicable in Gensler,
we find the case nonetheless demonstrates our Supreme Court's intent to apply the
identical-to-or-narrower-than rule in the DUI context to avoid impermissible judicial fact-
finding in violation of Apprendi.

B. The legislative history behind the 2018 amendments is not relevant to our
analysis.

The State also reasons the word "comparable" in K.S.A. 2019 Supp. 8-1567(i)(3) is
ambiguous because Wetrich found a similar phrase—"comparable offenses"—ambiguous
as used in K.S.A. 2017 Supp. 21-6811(e). See 307 Kan. at 559. But unlike the statute in
Wetrich, K.S.A. 2019 Supp. 8-1567(j) sets out specific statutory criteria to determine
whether a prior conviction is comparable. There is no ambiguity in the criteria for
determining whether an offense is comparable under K.S.A. 2019 Supp. 8-1567(i)(3).
Rather, the plain language of K.S.A. 2019 Supp. 8-1567(j)(3) invites a degree of
impermissible judicial fact-finding because the classification and penalty for the offense
are tied together in K.S.A. 2019 Supp. 8-1567(b).

15
 If we were to find the adjective "comparable" renders K.S.A. 2019 Supp. 8-
1567(i)(3) ambiguous, then the legislative history behind the 2018 amendments would
potentially become relevant. See LaPointe, 309 Kan. at 314-15. But this analysis likely
conflicts with the general rule that criminal statutes are strictly construed in favor of the
accused. The rule of lenity arises only when there is any reasonable doubt of the statute's
meaning. See State v. Williams, 303 Kan. 750, 760, 368 P.3d 1065 (2016).

In the preamble to the session law for K.S.A. 2019 Supp. 8-1567, the Legislature
expressed its intent to include Missouri DWI convictions as comparable offenses:

"WHEREAS, The Legislature intends that the provisions of this act related to
comparability of an out-of-jurisdiction offense to a Kansas offense shall be liberally
construed to allow comparable offenses, regardless of whether the elements are identical
to or narrower than the corresponding Kansas offense, to be included in a person's
criminal history; and

"WHEREAS, The Legislature intends to promote the inclusion of convictions for
such offenses in a person's criminal history, including, but not limited to, any violation of:
. . . Missouri, V.A.M.S. § 577.010 or V.A.M.S. § 577.012." (Emphases added.) L. 2018, ch.
106, Preamble.

Although the State correctly identifies the Legislature's intent to include Missouri
DWI convictions as comparable offenses under K.S.A. 2019 Supp. 8-1567(i)(3), the
Legislature did not include the language of the preamble to the session law in the text of
Kansas' DUI law. K.S.A. 2019 Supp. 8-1567 controls over the session law. To the extent
"[t]he Legislature intend[ed] . . . the provisions of [the] act related to comparability of an
out-of-jurisdiction offense . . . be liberally construed to allow comparable offenses,
regardless of whether the elements are identical to or narrower than the corresponding
Kansas offense, to be included in a person's criminal history," (emphasis added), it seeks to
modify the law in violation of the Sixth and Fourteenth Amendments to the United States

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Constitution. L. 2018, ch. 106, Preamble; see Mathis v. United States, 579 U.S. ___, 136 S.
Ct. 2243, 2252, 195 L. Ed. 2d 604 (2016) (relying on prior conviction with elements
broader than generic offense "would raise serious Sixth Amendment concerns").

C. We decline to follow the Mejia majority panel.

Finally, we note the majority panel of Mejia recently addressed this same legal
question and arrived at a different conclusion. Mejia was charged with felony DUI based
on three prior Missouri DWI convictions. He filed a motion challenging the use of his prior
convictions as an elevating factor for his felony DUI charge before the preliminary
hearing, arguing his prior Missouri DWI convictions were not comparable to Kansas DUI.
The district court agreed, finding, under Wetrich, Mejia's prior Missouri DWI convictions
must prohibit the same or a narrower range of conduct to be comparable to Kansas DUI.
The district court also held Apprendi and Dickey I limited its review to a comparison of the
elements of DWI and DUI without considering the facts underlying Mejia's convictions.
The district court refused to bind Mejia over on the felony DUI charge, and the State
appealed under K.S.A. 2019 Supp. 22-3602(b)(1).

On appeal, the majority found Mejia's prior DWI convictions could be used to
elevate his DUI charge to a felony. The majority's decision rested on three primary
findings: (1) Wetrich's identical-to-or-narrower-than rule is inapplicable to the DUI
context; (2) the word "comparable" in K.S.A. 2019 Supp. 8-1567(i)(3) is ambiguous; and
(3) the comparability analysis under K.S.A. 2019 Supp. 8-1567(j) does not conflict with
Apprendi. Mejia, 58 Kan. App. 2d at 244-49. Each of these findings is addressed briefly.

First, in finding Wetrich was inapplicable to the DUI context, the Mejia majority
relied on Reese, where the Kansas Supreme Court noted: "'Given that the DUI statute
provides its own sentencing provisions, cases relating to the proper application of the
[revised] Kansas Sentencing Guidelines Act (KSGA) are of minimal precedential value.'

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300 Kan. at 654." Mejia, 58 Kan. App. 2d at 232. The majority then found Wetrich was not
controlling authority for K.S.A. 8-1567 and could be treated only "as advisory guidance to
the extent it might be analogous." Mejia, 58 Kan. App. 2d at 232. The majority noted
Wetrich's identical-to-or-narrower-than rule was controlled by the need for uniformity in
sentencing in the Kansas Criminal Code "[g]iven the number of crimes identified in
Chapter 21, the number of potentially comparable crimes in the remaining 49 states, and
the number of district courts making comparisons." Mejia, 58 Kan. App. 2d at 234. The
Mejia majority found that, by contrast, DUI is a self-contained criminal statute, making
Wetrich's concerns about the "substantial sentencing disparities resulting from the sheer
breadth of the criminal code" less relevant in the comparability analysis for DUI. Mejia, 58
Kan. App. 2d at 235.

Next, the Mejia majority found the word "comparable" in K.S.A. 2019 Supp. 8-
1567(i)(3) was ambiguous because Wetrich found the same word was ambiguous as used
in K.S.A. 2017 Supp. 21-6811(e). Mejia, 58 Kan. App. 2d at 237-38; see Wetrich, 307
Kan. at 559-60. Based on its finding of ambiguity, the majority considered the preamble to
the session law for K.S.A. 2019 Supp. 8-1567 and concluded: "[T]he Legislature intended
that out-of-state convictions under statutes proscribing broader conduct than K.S.A. 8-
1567(a) trigger the recidivist provisions under K.S.A. 8-1567(b), so long as the conduct is
similar." 58 Kan. App. 2d at 238.

Finally, the Mejia majority found "the three-factor test for comparability in K.S.A.
2019 Supp. 8-1567(j) turns on the elements of the out-of-state offense." 58 Kan. App. 2d at
236. Turning to K.S.A. 2019 Supp. 8-1567(j)(3), the majority found "the elements need
only be 'similar' to the elements of DUI in K.S.A. 2019 Supp. 8-1567(a)" for the out-of-
state conviction to be "'comparable' for purposes of charging and punishing a recidivist."
58 Kan. App. 2d at 236-37. The Mejia majority concluded "since the comparability of
predicate offenses turns on their elements alone," K.S.A. 2019 Supp. 8-1567(j) does not

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implicate Apprendi because it "requires no more than a legal conclusion devoid of judicial
fact-finding." Mejia, 58 Kan. App. 2d at 240.

Given these considerations, the Mejia majority held even though the elements of
Missouri's DWI are broader than Kansas' DUI, they still prohibit similar conduct, and the
district court erred in dismissing Mejia's felony DUI charge. 58 Kan. App. 2d at 249.

We respectfully disagree with the Mejia majority's reasoning. Despite the majority's
reliance on Reese, which was decided in 2014, we believe the more recent decision in
Gensler better reflects our Supreme Court's intent to apply the identical-to-or-narrower-
than rule in the DUI context to avoid impermissible judicial fact-finding. We also fail to
see, as the Mejia majority does, how an elements-to-elements comparison involving a prior
conviction under an indivisible statute with elements broader than the generic offense does
not run afoul of Apprendi. See Mathis, 136 S. Ct. at 2252. And for the reasons already
stated, we do not find the legislative intent behind the 2018 amendments relevant to our
comparability analysis. The term "comparable" under K.S.A. 2019 Supp. 8-1567(i)(3) is
unambiguous because the criteria in K.S.A. 2019 Supp. 8-1567(j) define it.

We also recognize in Patton, 58 Kan. App. 2d ___, ___ P.3d ___ (No. 120,434,
filed September 11, 2020), slip op. at 13, another panel of this court followed the general
rationale of the Mejia majority that "cases relating to the proper application of the KSGA
are of minimal precedential value in DUI cases" since the DUI statute is a self-contained
statute. See Mejia, 58 Kan. App. 2d at 232. We do not disagree the Kansas DUI statute is
self-contained, but that does not eliminate the need for the statute to comply with Gensler's
rule applying Dickey I that elements of the prior convictions must "be the same as, or
narrower than, the elements of K.S.A. 8-1567." Gensler, 308 Kan. at 681.

We are not bound by the Mejia majority or the Patton panel decisions. See Jarvis v.
Kansas Dept. of Revenue, 56 Kan. App. 2d 1081, 1094-95, 442 P.3d 1054, rev. granted

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310 Kan. 1062 (2019). "Although separate panels of the Court of Appeals should strive to
be consistent in decision-making, ultimately the court must do its best to decide each case
based on the facts and the law, bearing in mind that the Kansas Supreme Court is the final
arbiter of all disputes." State v. Horselooking, 54 Kan. App. 2d 343, 350, 400 P.3d 189
(2017).

We decline to follow the majority decision in Mejia or the Patton panel and,
instead, find the dissent in Mejia is persuasive and tracks with our analysis. See 58 Kan.
App. 2d at 250-54 (Schroeder, J., dissenting). Following Gensler, we find the district court
did not err when it held Myers' Missouri DWI convictions could not be used to elevate her
current charge to a felony DUI because the Missouri DWI statute criminalizes broader
conduct than Kansas' DUI statute, K.S.A. 2019 Supp. 8-1567.

Affirmed.

***

BUSER, J., concurring in part and dissenting in part: I concur in my colleagues'
legal conclusion that our court has jurisdiction to consider the State's appeal under K.S.A.
2019 Supp. 22-3603. I dissent from the majority's holding affirming the district court's
ruling because I believe the legal analysis and conclusions expressed in State v. Patton, 58
Kan. App. 2d ___, ___ P.3d ___ (No. 120,434, filed September 11, 2020), slip op. at 15-
17, and State v. Mejia, 58 Kan. App. 2d 229, 240, 249, 466 P.3d 1217 (2020), correctly
address the critical issue in this case—whether Jessica Lynn Myers' prior Missouri driving
while intoxicated (DWI) convictions may be considered to elevate her current Kansas
driving under the influence charge to a felony offense. Accordingly, I would reverse the
district court's ruling striking Myers' prior Missouri DWI convictions from her criminal
history, and remand with directions to include those convictions in her criminal history and
for further proceedings.

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