Opinion
No. 111,055.
2015-03-6
STATE of Kansas, Appellee, v. David KILPATRICK, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge.Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
David Kilpatrick challenges the district court's jurisdiction to convict, sentence, and revoke his probation for violation of the requirements of the Kansas Offender Registration Act (KORA)—K.S.A. 22–4901 et seq.—to register based on his 2006 drug-related conviction. We find no violation of the United States Constitution's Ex Post Facto Clause and affirm Kilpatrick's conviction and sentence for failing to register. At Kilpatrick's probation revocation hearing, we find the district court failed to make specific findings to support not applying the intermediate sanction provisions of K.S.A.2013 Supp. 22–3716, and we must reverse. Affirmed in part, reversed in part, and remanded with directions.
Facts
Kilpatrick was arrested for failing to register under KORA in February 2011, and charged with one count of failure to register as a drug offender in case 11CR148 in violation of K.S.A.2010 Supp. 22–4904. At the time of his arrest, Kilpatrick was on felony probation for failing to register as a drug offender in violation of KORA in case 09CR639.
The requirement to register as a drug offender is a consequence of Kilpatrick's felony drug conviction in 2006 for possession of precursors with intent to manufacture a controlled substance. At the time of Kilpatrick's release from prison in 2008, he was required to register as a drug offender pursuant to KORA—K.S.A. 22–4901 et seq.
Kilpatrick agreed to a bench trial based on stipulated facts and was found guilty of failing to register during the month of February 2011. At Kilpatrick's sentencing hearing, the district court ordered his sentence of 57 months' imprisonment in 11CR148 to run consecutive to his sentence in 09CR639 and approved Kilpatrick's dispositional departure request by placing Kilpatrick on 36 months' supervised probation with community corrections.
A motion to revoke Kilpatrick's probation was filed about 1 year after he was placed on community corrections, which alleged multiple violations of his probation, including his admission of the use of methamphetamine and the use of Percocet not prescribed to him. While the probation revocation hearing was pending, Kilpatrick filed a motion to correct an illegal sentence pursuant to K.S.A. 22–3504. In his motion, Kilpatrick alleged the requirement to register based on his 2006 drug conviction was not imposed on him at the time of his 2006 conviction and sentencing. Thus, Kilpatrick argued the imposition of the KORA requirement at the time of his release from prison created an ex post facto violation.
While Kilpatrick was in prison, KORA was amended in 2007 to require convicted drug offenders to register. See K.S.A.2008 Supp. 22–4901 et seq. The district court denied Kilpatrick's motion to correct an illegal sentence pursuant to K.S.A. 22–3504. Kilpatrick immediately filed two motions to reconsider, and the district court denied both motions. The district court then proceeded with Kilpatrick's probation revocation hearing and, based on the evidence presented, revoked Kilpatrick's probation in case 11CR148 and also in case 09CR639. At the conclusion of the probation revocation hearing, the district court modified Kilpatrick's sentence by reducing it to 24 months' imprisonment to be served concurrently with case 09CR639 and not consecutive to case 09CR639. Kilpatrick now appeals.
Analysis
On appeal, Kilpatrick argues:
• The requirement to register under KORA violated the ex post facto doctrine.
• The district court erred in denying his motion to correct an illegal sentence pursuant to K.S.A. 22–3504 for lack of jurisdiction.
• The district court failed to properly consider intermediate sanctions pursuant to K.S.A.2013 Supp. 22–3716.
We will address each of Kilpatrick's arguments in turn. First, we will address whether the addition of the KORA registration requirement upon his release from prison in 2008 as a result of his 2006 drug-related conviction violates the United States Constitution's Ex Post Facto Clause, thereby eliminating the district court's jurisdiction to convict Kilpatrick in 2011 in this case.
Does KORA violate the United States Constitution's Ex Post Facto Clause?
Kilpatrick argues the 2007 amendment to KORA and its requirement for him to register violates the United States Constitution's Ex Post Facto Clause. The 2007 amendment was not imposed upon Kilpatrick at the time of his 2006 drug-related conviction and sentencing. The reporting requirement of KORA was imposed as he was leaving prison in 2008. He presents his argument by claiming the district court lacked the ability to retroactively impose the KORA registration requirement on him in 2008 for his 2006 conviction. He misses the argument because the district court never imposed KORA as a requirement of his sentence. The KORA registration was imposed as he left prison and the violation of the registration requirement is a new crime, not a specific condition of his 2006 sentence. If the KORA registration is not part of his 2006 sentence, the Ex Post Facto Clause of the United States Constitution does not apply. Recently, another panel of this court addressed this very issue in State v. Simmons, 50 Kan.App.2d 448, 329 P.3d 523 (2014), petition for rev. filed July 25, 2014, and determined KORA's registration requirements are not part of an offender's criminal sentence.
In Simmons, Ami Latrice Simmons appealed her conviction for failing to register as a drug offender, arguing that retroactively requiring her to register as a drug offender “for a prior conviction that did not require registration at the time she originally was sentenced (1) illegally modifies the original sentence imposed and (2) violates the Ex Post Facto Clause of the United States Constitution.” Simmons, 50 Kan.App.2d at 451. Following a bench trial on stipulated facts, the district court found Simmons guilty of failing to register as required by KORA. Simmons, 50 Kan.App.2d at 451–52.
On appeal, the Simmons panel analyzed whether the drug offender registration requirement under KORA is considered a part of a defendant's criminal sentence. Simmons, 50 Kan.App.2d at 453. After considering the statutory scheme of KORA in its entirety, the Simmons panel found “the provisions therein reflect the legislature's clear intent that the registration requirement be imposed automatically by operation of law as a nonpunitive collateral consequence of judgment that is distinct from, and not part of, a criminal sentence.” Simmons, 50 Kan.App.2d at 457. Because the registration requirement was not a part of Simmons' sentence, the Simmons panel found there was no merit to Simmons' claim her sentence was illegally modified. Simmons, 50 Kan.App.2d at 463.
The Simmons panel acknowledged the decision directly conflicts with an unpublished decision reached by another panel of the Kansas Court of Appeals in State v. Dandridge, No. 109,066, 2014 WL 702408, at *3 (Kan.App.2014) (unpublished opinion). Simmons, 50 Kan.App.2d at 459. Kilpatrick relies on Dandridge to make his arguments; however, an unpublished opinion cited by a party in an appellate brief is not binding precedent per Supreme Court Rule 7.04(g)(2)(A) (2014 Kan. Ct. R. Annot. 64). Graham v. Herring, 297 Kan. 847, 861, 305 P.3d 585 (2013).
The panel in Dandridge found that because the offender registration was not a legal consequence of Dandridge's original crime, it could not now be a part of Dandridge's criminal sentence. The Dandridge panel found the district court erred in ordering him to meet registration requirements not in effect at the time his crime of conviction was committed. Dandridge, 2014 WL 702408, at *3. Even though Dandridge supports Kilpatrick's argument, we choose to follow the rationale of Simmons.
In Simmons, after determining KORA's registration requirements were not part of Simmons' sentence, the panel next looked at Simmons' argument that applying the 2007 KORA legislation retroactively to persons who already had been convicted of drug crimes amounted to unconstitutional punishment in violation of the Ex Post Facto Clause of the United States Constitution.
The Ex Post Facto Clause forbids legislative enactments which impose a punishment for an act which was not punishable when it was committed or which impose additional punishments to those then prescribed. A law is ex post facto if two critical elements are present: (1) the law is retrospective, and (2) the law disadvantages the offender affected by it. State v. Prine, 297 Kan. 460, 469, 303 P.3d 662 (2013). Simmons found the Kansas Supreme Court decision in State v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996), essentially controlled the ex post facto issue.
“The court in Myers engaged in a lengthy analysis of state and federal offender registration laws and of the legislative purpose behind the Kansas Sex Offender Registration Act (KSORA), which is the sex offender component of the offender act at issue here. The court concluded that the duty to register served a sound public safety interest, was enacted to further that public interest, and did not impose obligations so onerous as to be punitive in their effect. 260 Kan. at 681, 695–96. The court ultimately held that the requirements were not a form of punishment triggering ex post facto protections.” Simmons, 50 Kan.App.2d at 463–64.
Furthermore, in Simmons, the panel clarified that the punishment triggered by failing to register is not a factor to be considered in the ex post facto determination because a prosecution for failure to register is a separate proceeding from the individual's original offense. Simmons, 50 Kan.App.2d at 464.
Kilpatrick claims KORA's registration requirements violate the Ex Post Facto Clause, but his argument is misplaced. The registration requirements under KORA are imposed automatically by operation of law and, as reflected here, were not a part of Kilpatrick's original drug sentence in 2006. Thus, there is no merit to Kilpatrick's claim his original sentence in 2006 was modified. The requirement to register pursuant to KORA did not modify Kilpatrick's original 2006 drug-related sentence.
Now that we have determined the requirement to register under KORA was not a part of his 2006 drug-related sentence and does not violate the Ex Post Facto Clause, we turn to consider the district court's decision to deny Kilpatrick's motion to correct an illegal sentence.
Motion to Correct an Illegal Sentence
Kilpatrick's motion to correct an illegal sentence under K.S.A. 22–3504 is premised on his argument the requirement to register was an ex post facto modification of his 2006 drug-related conviction and sentence. As we previously discussed, we have determined the requirement to register under KORA is a statutory requirement imposed separate from the original sentence and does not violate the Ex Post Facto Clause.
A motion to correct an illegal sentence may be raised at any time. See K.S.A. 22–3504(1).
“An appellate court reviews a district court's summary denial of a motion to correct an illegal sentence under K.S.A. 22–3504 de novo because the reviewing court has the same access to the motions, records, and files. [Citation omitted.] ...
“... [The Kansas Supreme Court] has defined an ‘illegal sentence’ under K.S.A. 22–3504 as (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. [Citation omitted.]” State v. Gilbert, 299 Kan. 797, 801, 326 P .3d 1060 (2014).
K.S.A. 22–3504(1) provides that a court may correct an illegal sentence at any time. A defendant may challenge his or her sentence even after failing to challenge the sentence on direct appeal. State v. Williams, 298 Kan. 1075, 1077, 319 P.3d 528 (2014). K.S .A. 22–3504(1) has very limited applicability. Makthepharak v. State, 298 Kan. 573, 581, 314 P.3d 876 (2013). K.S.A. 22–3504 is solely a vehicle to correct a sentence. It is not a mechanism to reverse a conviction. State v. Trotter, 296 Kan. 898, 902, 295 P .3d 1039 (2013); State v. Williams, 283 Kan. 492, 495–96, 153 P.3d 520 (2007) (stating K.S.A. 22–3504 is “not a vehicle for a collateral attack on a conviction”). Because the definition of an illegal sentence does not encompass violations of constitutional provisions, a defendant may not challenge a sentence on constitutional grounds under K.S.A. 22–3504. State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007).
Here, Kilpatrick's argument fails. Kilpatrick challenges his sentence as being illegal, claiming the district court never had jurisdiction. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014). “Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion.” State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010). If the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
Clearly, the district court had jurisdiction to preside over the charges pending against Kilpatrick for violating his registration requirements under KORA. He was convicted for failing to register in February 2011 as a condition of KORA. He was not convicted for any violation of his original 2006 drug-related conviction and sentence. With the district court's jurisdiction established, it also retained jurisdiction to supervise the conditions of probation imposed. Kilpatrick has failed to show how his 2011 sentence was illegal. Kilpatrick's sentence in 11CR148 is not illegal, and the district court did not err in denying his motion to correct an illegal sentence.
Now that we have determined Kilpatrick's sentence was not illegal, we will turn to consider whether the district court's revocation of his probation without imposing intermediate sanctions was proper.
Revocation of Probation Without Imposing Intermediate Sanctions
Kilpatrick argues the district court erred when it failed to consider intermediate sanctions under K.S.A.2013 Supp. 22–3716 at the time it was considering the revocation of his probation and ordering Kilpatrick to serve his underlying prison sentence. Kilpatrick acknowledges the district court is not required to impose intermediate sanctions “if the court finds, and sets forth with particularity, the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by such sanction.” Kilpatrick argues the district court erred by not stating with particularity its reasons for finding public safety would be jeopardized or why his welfare would not be served by continuing probation.
Standard of Review
This issue requires the appellate court to interpret the provisions of K.S.A.2013 Supp. 22–3716. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Williams, 298 Kan. at 1079. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014). 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. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014). Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent. Phillips, 299 Kan. at 495. As a general rule, criminal statutes are strictly construed in favor of the accused. This rule is constrained by the rule that the interpretation of a statute must be reasonable and sensible to effect the legislative design and intent of the law. Phillips, 299 Kan. at 495. The rule of lenity arises only when there is any reasonable doubt of the statute's meaning. State v. Beaman, 295 Kan. 853, 868, 286 P.3d 876 (2012).
Proper Sanctions Upon Revocation of Probation
Kilpatrick argues that before the district court could revoke his probation and send him to prison based on the State's first motion to revoke his probation in 11CR148 for technical violations, it had to make specific findings he presented a danger to himself or others pursuant to K.S.A.2013 Supp. 22–3716(c)(9). If the district court failed to make these findings, then it needed to consider intermediate or nonprison sanctions to reestablish the conditions of his probation. Kilpatrick contends the district court did not make particularized findings or impose an intermediate sanction, so “this Court must remand [his] case for further proceedings so that the district court can reinstate probation or make the statutory required findings on the record.”
K.S.A.2013 Supp. 22–3716(c)(1)(A)–(E) generally provides the district court a list of options to consider when it has determined the defendant has violated the terms of his or her probation, unless the district court makes a specific finding under K.S.A.2013 Supp. 22–3716(c)(9).
“But the guarantee of an intermediate sanction for a first probation violation is not absolute: A district court may order a felon to serve the underlying sentence for his crime if it relies with specific findings on one of the reasons provided by statute—for example, that the felon is a danger either to himself or to public safety.” State v. Harding, No. 110,677, 2014 WL 3843473, at *3 (Kan.App.2014) (unpublished opinion), petition for rev. filed August 15, 2014.
“The court may revoke the probation ... of an offender ... without having previously imposed a sanction pursuant to subsection (c)(1)(B), (c)(1)(C) or (c)(1)(D) if the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by such sanction.” K.S.A.2013 Supp. 22–3716(c)(9).
As a threshold issue, the State argues that Kilpatrick failed to raise this issue at the time of sentencing and, as such, it has not been preserved for appeal. Issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Even constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). There are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following:
“(1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the district court is right for the wrong reason.” Phillips, 299 Kan. at 493.
We find this issue should be addressed on appeal for the first time given the clear statutory intent not to do so would be the denial of a fundamental right.
Here, the district court noted Kilpatrick was listed as a battery suspect in multiple cases, had admitted to the use of Percocet not prescribed to him, and had admitted to using methamphetamine. The district court did not, however, specifically discuss how these reasons would jeopardize the public's safety or how Kilpatrick's welfare would not be served by an assignment to community corrections. It appears to be implicit in the district court's reasoning that being a suspect in multiple battery cases and admitting to drug use would pose a threat to the public's safety and endanger his welfare if Kilpatrick was assigned to community corrections. However, an implicit determination is not enough when particularized findings are required by statute. Thus, we reverse the revocation of Kilpatrick's probation and remand the case for a hearing before the district court to either make the particularized findings required by K.S.A.2013 Supp. 22–3716(c)(9), or to consider its other statutory options to manage Kilpatrick's probation.
Conclusion
Kilpatrick's conviction for failing to register as a drug offender under KORA is a separate and distinct crime from the crime that triggered the obligation to register. We find the district court had jurisdiction to convict and sentence Kilpatrick for violating the registration requirements of KORA. The district court's jurisdiction to convict for violating KORA provides the district court with jurisdiction to revoke probation when the conditions of probation have been violated. The jurisdiction to revoke probation is not without conditions, and one of these conditions is to follow the statutory requirement to make specific findings if the intermediate sanctions for violating probation are not going to be used. Here, the district court failed to make specific findings for not utilizing the intermediate sanctions upon revoking Kilpatrick's probation.
Affirmed in part, reversed in part, and remanded with directions.