Opinion
No. 111054.
03-13-2015
STATE of Kansas, Appellee, v. David KILPATRICK, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, SJ.
MEMORANDUM OPINION
PER CURIAM.
David Kilpatrick appeals from the district court's denial of his motion to correct the illegal sentence he claims he received for his 2009 conviction of failure to register under the Kansas Offender Registration Act (KORA). In a prior 2006 case, Kilpatrick had been convicted of two counts of possession of precursors with intent to manufacture a controlled substance. At the time of sentencing for those prior offenses KORA did not designate him as an “offender” subject to registration. However, amendments to KORA enacted in 2007 included him as an offender and required that he register. He breached his duty to register, which resulted in the current conviction. Kilpatrick contends that the district court lacked jurisdiction to convict and sentence him for his KORA violation because (1) the KORA requirement that he register as an offender could not legally be applied to him, since registration was not part of his original drug-crime sentences and (2) that retroactively requiring him to register violated the Ex Post Facto Clause of the United States Constitution. We disagree, affirm in part, dismiss in part, and remand with directions.
Factual and Procedural Background
The facts pertinent to this appeal are not in dispute. Police determined that in August 2004 Kilpatrick was involved in the manufacture of methamphetamine. In January 2006, the State charged Kilpatrick with several drug offenses related to that manufacturing. In March 2007, pursuant to a plea agreement, Kilpatrick pled no contest to three offenses: one count of possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance, a severity level 1 drug felony; one count of possession of lithium metal with intent to manufacture a controlled substance, a severity level 1 drug felony; and one count of possession of methamphetamine, a severity level 4 drug felony. On June 1, 2007, the district court sentenced Kilpatrick to a controlling term of 26 months in prison and granted the agreed-upon dispositional departure to probation. On June 29, 2007, the district court revoked that probation and remanded Kilpatrick to prison.
At the time of Kilpatrick's drug sentencing, KORA did not define Kilpatrick as an “offender” who was required to register. However, effective July 1, 2007, the legislature amended KORA. In relevant part, K.S.A. 22–4902(a)(11)(B) then provided that “(a) ‘Offender’ means: ... (11) any person who has been convicted of: ... (B) possession of ephedrine, pseudoephedrine, ... [or] lithium metal ... with intent to use the product to manufacture a controlled substance....” Kilpatrick has acknowledged that, if the amendments to the statute could legally be applied to him, he was then included as an offender with a duty to register.
As Kilpatrick's prison-release date approached, an official at Ellsworth Correctional Facility informed Kilpatrick of his duty to register. Kilpatrick was released from that facility June 6, 2008, having served his sentence. Kilpatrick timely registered as an offender with the Reno County Sheriff's Office pursuant to K.S.A 22–4906(a).
On August 19, 2009, the State charged Kilpatrick with four counts of failure to comply with KORA, all severity level 5 felonies. Kilpatrick and the State again reached a plea agreement. Kilpatrick was convicted of one count of failure to register, sentenced to a controlling term of 49 months in prison, and granted an agreed-upon dispositional departure to probation to be supervised by Community Corrections for 36 months.
In 2011 and 2012, the district court revoked and reinstated Kilpatrick's probation on three occasions and also extended the term of his probation. On August 12, 2013, the State filed its fourth motion to revoke Kilpatrick's probation.
While the State's probation revocation motion was pending, Kilpatrick filed a motion to correct an illegal sentence under K.S.A. 22–3504. Kilpatrick pointed out that at the time he was sentenced for his drug crimes in June 2007, the applicable KORA did not classify him as an offender. Thus, he had no duty to register as a result of those convictions and sentences. He claimed that any duty to register was a part of the sentence for the offense that mandated registration. Since a duty to register could not have been imposed under the KORA in place at the time of his sentencing, he contended that the 2007 KORA amendments could not lawfully retroactively apply to require him to register. From that premise, he then argued that the district court had no jurisdiction to convict and sentence him for violating a duty to register he did not lawfully have. He also argued that imposition of a duty to register after he was sentenced for the drug crimes added a sentencing sanction to his drug offenses in violation of the Ex Post Facto Clause of the United States Constitution.
The State responded, arguing that “[t]he issue was controlled by State v. Cook, 286 Kan. 766, 187 P.3d 1283 (2008), in which the Kansas Supreme Court found that amendments to KORA are lawfully retroactively applied without violating the Ex Post Facto Clause of the United States Constitution.”
The district court denied Kilpatrick's motion. Kilpatrick filed a motion to reconsider. On October 18, 2013, the district court denied the motion to reconsider in all respects. It revoked Kilpatrick's probation, reduced his sentence in this case and a newer case not subject to this appeal to a total controlling term of 24 months, and remanded Kilpatrick to prison. Kilpatrick appeals from the denial of his motion to correct an illegal sentence.
The District Court Had Jurisdiction to Enforce the Registration Requirements of Kora Against Kilpatrick
On appeal, Kilpatrick argues that the district court erred when it denied his motion to correct an illegal sentence. Specifically, Kilpatrick contends:
“When ... Kilpatrick entered his no contest plea in 06 CR 14 [the drug case], the district court ordered him to complete probation. Later ... Kilpatrick was informed he must also register as a drug offender. However, offender registration was not part of ... Kilpatrick sentence in 2006 [sic], and not specifically part of the Kansas sentencing guidelines for his criminal history and the offense's severity level. Therefore, ... Kilpatrick should not have been subject to offender registration.”
Thus, Kilpatrick argues that because KORA did not require that he register at the time of his drug crime sentencing, he could not lawfully be required to register under the subsequently amended KORA. He points out that our Supreme Court has long held that a defendant is sentenced in accordance with the sentencing provisions in effect at the time the crime was committed, citing State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010). He contends that the district court did not have jurisdiction to sentence him for violating a duty to register that he did not lawfully have. The issue, then, is whether the district court had jurisdiction to enforce the relevant 2007 amendments to KORA by convicting and sentencing Kilpatrick for his 2009 failure to register.
Whether a sentence is illegal is a question of law over which we exercise unlimited review. State v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 (2014). 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.” Gilbert, 299 Kan. at 801.
Whether jurisdiction exists is also a question of law over which we exercise unlimited review. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014).
We note that Kilpatrick's position that he cannot be retroactively required to register is not without support. He directs our attention to State v. Dandridge, No. 109,066, 2014 WL 702408, at *3 (Kan.App.2014) (unpublished opinion). There, a panel of this court held that the duty to register was part of a sentence and could not be retroactively imposed. Dandridge was convicted of aggravated incest in 2012 for acts he had committed in 1989. The district court ordered Dandridge to register because he fit the definition of an offender under K.S.A.2013 Supp. 22–4902. Dandridge appealed, claiming that the district court had no authority to order him to register because the statute in effect at the time he committed his crime did not provide for registration. The Dandridge court agreed with Dandridge and held as follows:
“Kansas appellate courts have referred to offender registration as part of sentencing. See State v. Mishmash, 295 Kan. 1140, 1144–45, 290 P.3d 243 (2012) (finding that the district court erred in ordering offender registration, and Vacat[ing] that portion of the sentence requiring Mishmash to register as a drug offender'); State v. Denmark–Wagner, 292 Kan. 870, 884, 258 P.3d 960 (2011) (finding that ‘[t]he lifetime offender registration requirement of [the defendant's] sentence does not conform to the statute and is illegal’); State v. Jackson, 291 Kan. 34, 37, 238 P.3d 246 (2010) (“[T]he statutorily required imposition of lifetime registration is an incident of sentencing, akin to restitution.... Because the defendant has constructive notice of the registration requirement, it is implicit in every sentence that falls within the scope of K.S.A. 22–4906.').
“Moreover, our Supreme Court has elaborated upon what constitutes a sentence: ‘ “Ordinarily, in a legal sense, ‘sentence’ is synonymous with ‘judgment’ and denotes the action of a court of criminal jurisdiction formally declaring to the defendant the legal consequences of the guilt to which he has confessed or of which he has been convicted. [Citation omitted.]' “ Jackson, 291 Kan. at 36. Offender registration is a legal consequence of aggravated incest; therefore, under this definition, it is part of a criminal sentence.
“At the time Dandridge committed his offense, there was no offender registration requirement in Kansas. Because offender registration is part of a criminal sentence and because Dandridge must be sentenced based on the law in effect at the time he committed his crime, we conclude the district court erred by ordering Dandridge to register as a sex offender. Accordingly, we vacate Dandridge's sentence and remand for resentencing with directions that the district court refrain from imposing registration requirements under KORA.” Dandridge, 2014 WL 702408, at *3.
The State argues that Dandridge is an unpublished opinion that we should not follow. Rather, it urges us to follow State v. Simmons, 50 Kan.App.2d 448, 329 P.3d 523 (2014), petition for rev. filed July 25, 2014.
The facts in Simmons are similar to those here. In 2005, Simmons was convicted of and sentenced for a count of possession of cocaine with intent to distribute and a count of sale of cocaine. KORA did not then classify her as an offender, and she had no duty to register. Then, just like Kilpatrick's circumstance, the 2007 amendments to KORA designated Simmons as an offender with a duty to register. Simmons failed to register in 2011, for which she was charged. Simmons defended, arguing that the KORA amendment illegally modified her 2005 drug sentence and violated the Ex Post Facto Clause. Ultimately the case was tried to the district court on stipulated facts. Simmons was convicted. Simmons appealed her KORA violation conviction, raising the same issues on appeal.
The Simmons panel of this court comprehensively analyzed the relevant statutes and judicial precedents to determine whether the offender registration requirement under the amended KORA was in fact an impermissible modification to Simmons' original drug crime sentence. The court determined that it was not. 50 Kan.App.2d at 453. The court confirmed that Simmons was an offender under the definition in K.S.A.2013 Supp. 22–4902(a) applicable at the time of her prosecution for her failure to register. It also acknowledged that when she was convicted of her drug crimes she did not fit the definition of an offender under the 2005 version of KORA. 50 Kan.App.2d at 454. The Simmons court framed the issue in the following:
“Thus, unlike most offenders who object to retroactive application of legislative amendments to KORA, there is no court order or journal entry in this case imposing any registration requirement on Simmons at all. In the absence of a court order, the question of whether the requirement to register is part of an offender's sentence turns on whether there is a statutory procedure for imposing the registration requirement on an offender like Simmons, who has never been subject to a court order to register.” 50 Kan.App.2d at 454.
The Simmons court determined that KORA did provide a statutory procedure to impose the registration requirement on offenders that was not dependent on a court order. It found that the key to the propriety of KORA's retroactivity was in its numerous provisions regarding the giving of notice to the offender of the duty to register, whether by prison officials, sheriffs, or district courts. In fact, the statute only requires that the district court inform or notify, at conviction, KORA-defined offenders of the duty to register. The district court's duty to inform an offender of KORA's requirements does not mean that the requirements of KORA registration constitute a part of an offender's sentence. The Simmons court noted:
“Significantly, there is no provision in this statute or the offender registration act as a whole that refers to, let alone authorizes, the court to order offender registration as a criminal sentence as punishment for an offender's conviction. This affirmative obligation imposed by statute on the court to inform an offender of the duty to register at the time of conviction is not an indication that the legislature intended offender registration as part of a criminal sentence. The Kansas law relating to sentencing is codified in the [Revised] Kansas Sentencing Guidelines Act (KSGA), K.S.A.2013 Supp. 21–6801 et seq. , and the offender registration statutory scheme is wholly separate and distinct from the KSGA.” 50 Kan.App.2d at 457.
Ultimately, Simmons held that KORA's registration requirements are not a part of any sentence. They are independent obligations imposed directly on the offender by statute. They specifically are not a part of the sentence for the crime that legislatively gave rise to the duty to register. 50 Kan.App.2d at 457–58. The Simmons court stated:
“Although the registration requirement is a legal consequence of a conviction for designated crimes, both the United States Supreme Court and the Kansas Supreme Court have held that the duty to register is a civil penalty that is remedial in nature and intended to protect public safety, not to impose punishment. Smith v. Doe, 538 U.S. 84, 105–06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) ; State v. Myers, 260 Kan. 669, 671, 681, 695–96, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997). And the Kansas offender registration statutory scheme itself specifically makes clear that the requirement to register need not be imposed by court order at all, let alone imposed by the court in open proceedings. As such, the registration requirements simply are not part of an offender's sentence.” 50 Kan.App.2d at 458.
“After careful review of the relevant provisions of the applicable statutes, the unambiguous language therein readily establishes that the legislature intended the KORA registration requirements to be imposed automatically by operation of law without court involvement and to represent nonpunitive collateral consequences of judgment that are distinct from, and not a part of, a criminal sentence. Because the registration requirement is not part of her sentence, we necessarily conclude there is no merit to Simmons' claim that her sentence was illegally modified. ” (Emphasis added.) 50 Kan.App.2d at 463.
We agree with the analysis and the conclusion of the court in Simmons, and we apply the holdings in that case here. We have considered Dandridge but decline to follow it. See Supreme Court Rule 7.04(g)(2)(A). (2014 Kan. Ct. R. Annot. 62); Graham v. Herring, 297 Kan. 847, 861, 305 P.3d 585 (2013).
In 2007, the legislature amended KORA in a way that required Kilpatrick to register as an offender. He was duly notified of that duty upon his release from prison, pursuant the statute, and he did in fact initially registered after his release from prison. KORA did not permit, let alone require, that a district court impose that duty. The legislature itself imposed that duty on Kilpatrick in its 2007 amendments to KORA, which duty remained in place when Kilpatrick subsequently failed to register. Kilpatrick's duty to register was not an aspect of his drug crime sentences added retroactively; it was not a part of the sentences at all. Rather, it was a collateral, separate consequence of those prior convictions. The district court had jurisdiction to enforce the 2007 amendments to KORA that required Kilpatrick to register. The district court did not err when it rejected Kilpatrick's claim that he could not lawfully be required to register. The district court properly denied his motion to correct an illegal sentence on that claim.
This Court Lacks Jurisdiction Over Kilpatrick's Ex Post Facto Claim
Kilpatrick also claims that his sentence was illegal because application of KORA's registration requirements to him violates the Ex Post Facto Clause of the Constitution of the United States. He submits that the amendments to KORA requiring him to register increased his punishment for his drug convictions beyond what was prescribed when the crime was consummated, citing State v. Cook, 286 Kan. 766, 770–71, 187 P.3d 1283 (2008). He also contends that the registration scheme in KORA has become so punitive that it can no longer be deemed “civil” and remedial, citing Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).
As a threshold matter, we note that we have a duty to question our jurisdiction over these constitutional issues on our own initiative. See State v. Harp, 283 Kan. 740, 746, 156 P.3d 1268 (2007). The right to an appeal is purely statutory. Kansas appellate courts only have jurisdiction to consider appeals taken in the manner prescribed by statute. State v. Gill, 287 Kan. 289, 293–94, 196 P.3d 369 (2008). Whether jurisdiction exists is a legal question over which this court exercises de novo review. State v. Williams, 37 Kan.App.2d 404, 406, 153 P.3d 566, rev. denied 284 Kan. 951 (2007).
These constitutional claims come to us as a part of Kilpatrick's motion to correct an illegal sentence. An illegal sentence under K.S.A. 22–3504, as we noted above, is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served.
The Kansas Supreme Court has repeatedly held that K.S.A. 22–3504 has very limited applicability. Makthepharakv. State, 298 Kan. 573, 581, 314 P.3d 876 (2013). Under K.S.A. 22–3504, a sentence is illegal only if it fits within the statutory definition. “Because the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision, a defendant may not file a motion to correct an illegal sentence based on constitutional challenges to his or her sentence.” State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007). Thus, we have no jurisdiction over Kilpatrick's constitutional claims. See 284 Kan. 377; see also, e.g., State v. Denney, No. 105,681, 2012 WL 402012 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. 1132 (2013), where a panel of this court dismissed an appeal involving an Ex Post Facto claim advanced in a motion to correct an illegal sentence.
Even if we had jurisdiction, we would once again rely on Simmons and the cases it cites to deny Kilpatrick's Ex Post Facto claims. Simmons made similar claims to those Kilpatrick makes, but her issues were properly before the Simmons court on direct appeal.
Again, Kilpatrick's sentence for violating the KORA registration provisions did not add punishment to his prior drug offense sentence. Rather, his sentence for violating KORA was punishment for that subsequent, separate crime. As such, any punishment imposed under KORA for failing to register is irrelevant to an ex post facto analysis. See Simmons, 50 Kan.App.2d at 464.
We would also reject Kilpatrick's claim that KORA has become too punitive to be remedial, in violation of the Ex Post Facto Clause. Regarding Simmons' nearly identical claim, the Simmons court held:
“Although Simmons acknowledges the holdings in Smith [, 538 U.S. 84,] and Myers [260 Kan. 669,] she suggests that both the United States Supreme Court and the Kansas Supreme Court might now reach a different result in analyzing the current version of KORA. Specifically, Simmons points to the expanded scope of the offenders who are required to register, the heightened reporting obligations, and the more aggressive public notification provisions implemented since the court in Myers considered the constitutionality of KSORA in 1996. Although the changes Simmons points out between KSORA as it was upheld in Myers and the KORA version applied to her are significant, ultimately they are matters of degree rather than differences of kind. Thus, absent some indication the Kansas Supreme Court intends to retreat from its decision in Myers, it remains controlling authority. Likewise, many of the registration features challenged by Simmons were included in the Alaska sex offender registration act upheld by the United States Supreme Court in Smith. See 538 U.S. at 90–91, 105–06.” Simmons, 50 Kan.App.2d at 464–65.
Again, though, we have no jurisdiction over Kilpatrick's constitutional claims, and we dismiss this part of his appeal.
Kilpatrick's Sentence Was Final When It Was Pronounced
In his appeal brief, Kilpatrick contended that the district court had never finalized his 2009 sentencing because the journal entry of judgment showed that restitution was “TBD,” i.e., to be determined. Kilpatrick submitted that the district court could not properly revoke a probation granted at a sentencing that had never become final because restitution had never been determined. See State v. Hall, 298 Kan. 978, 986–97, 319 P.3d 506 (2014).
At oral argument, though, Kilpatrick's appellate counsel abandoned this claim. Here, the State did not request any restitution. The district court announced its sentence from the bench without mentioning restitution. It certainly did not state that restitution would remain open to be determined later. Counsel was satisfied that the “TBD” indication on the journal entry was a curable clerical error in completing the journal entry rather than an indication that the district court was leaving the case open in order to determine restitution. We note that a journal entry that imposes a sentence at variance with the sentence pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed. State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012). We understand that the parties will see to the correction of the journal entry in this regard. We affirm the sentence imposed from the bench and remand with directions to the district court to issue a nunc pro tunc correcting the journal entry.
Affirmed in part, dismissed in part, and remand with directions.