Opinion
109,692.
10-31-2014
STATE of Kansas, Appellee, v. Richard Joseph WILSON, Appellant.
Kevin P. Shepherd, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Kevin P. Shepherd, of Topeka, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Richard Joseph Wilson appeals the portion of his sentence requiring him to register under the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , for the remainder of his life. Wilson contends that this part of his sentence violates the Ex Post Facto Clause of the United States Constitution. But Kansas courts have consistently held that the KORA is a nonpunitive law. Moreover, Wilson contends that the district court erred by failing to announce the length of registration at sentencing. Because the KORA expressly mandates lifetime registration, however, we find that the district court was not required to pronounce the duration of the registration from the bench. Thus, we affirm.
Facts
On October 19, 2010, Wilson pled no contest to a reduced charge of attempting to promote prostitution. At sentencing, the district court determined that Wilson had a criminal history score of A, and it sentenced him to 16 months in the custody of the Kansas Secretary of Corrections. Because Wilson had previously been convicted of a crime requiring registration, the district court advised Wilson at the sentencing hearing that he would “be required to register as an offender as a result of this conviction.” Although the district court did not mention the length of Wilson's obligation to register at the sentencing hearing, the journal entry indicated that “Lifetime Registration” would be required.
Analysis
Preservation of Ex Post Facto Issue for Appeal
At the outset, we note the State argues that Wilson failed to properly preserve the ex post facto issue for appeal. It does not appear based on our review of the record that Wilson argued that lifetime registration violates the Ex Post Facto Clause of the United States Constitution before the district court. As a general rule, constitutional grounds asserted for the first time on appeal are not properly before us for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012).
Under the following circumstances, however, we may consider an issue raised for the first time on appeal. Such circumstances include:
“(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;
“(2) Questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and
“(3) That a judgment of a trial court may be upheld on appeal even though that court may have relied on the wrong ground or assigned a wrong reason for its decision.” State v. Puckett, 230 Kan. 596, 598–99, 640 P.2d 1198 (1982).
Here, Wilson fails to explain in his brief why he should be allowed to raise the ex post facto issue for the first time on appeal. Nevertheless, whether lifetime offender registration violates the Ex Post Facto Clause of the United States Constitution is a question of law, and we believe a ruling on this issue would serve the ends of justice. Thus, we will address the ex post facto issue on the merits.
Ex Post Facto Clause
On appeal, Wilson argues that the 2011 amendments to the KORA have transformed the law into a punitive requirement. As such, he contends that the law violates the Ex Post Facto Clause of the United States Constitution. Whether a statute is constitutional is a question of law over which we exercise unlimited review. See State v. Gaona, 293 Kan. 930, 957, 270 P.3d 1165 (2012). We must presume that a statute is constitutional, and we must reasonably construe statutory language without violating the legislature's intent to the extent that it can be determined. See State v. Cummings, 297 Kan. 716, 722, 305 P.3d 556 (2013).
The Ex Post Facto Clause prohibits legislative enactments that impose a punishment for an act that was not punishable when it was committed or that imposes additional punishments to those previously prescribed. See State v. Jaben, 294 Kan. 607, 612, 277 P.3d 417 (2012). The Ex Post Facto Clause, however, only applies to laws that are punitive in nature. State v. Myers, 260 Kan. 669, 695–96, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997) ; see State v. Cook, 286 Kan. 766, 774–76, 187 P.3d 1283 (2008). In fact, both the United States Supreme Court and the Kansas Supreme Court have held that the Ex Post Facto Clause does not apply to offender registration laws because they are not punitive.
In Myers, our Supreme Court conducted an extensive analysis of the Kansas Sex Offender Registration Act (KSORA)—the predecessor to KORA, the sex offender registration laws of other states, the federal sex offender registration law, and ex post facto challenges to offender registration laws in other jurisdictions. 260 Kan. at 673–94. It concluded that the KSORA serves a nonpunitive purpose—public safety. 260 Kan. at 681, 695–96. Our Supreme Court further found that the statute was not so punitive in effect that it overrode its nonpunitive purpose. 260 Kan. at 694–96. Using a similar analysis, the United States Supreme Court came to the same conclusion after reviewing the Alaska Sex Offender Registration Act in Smith v. Doe, 538 U.S. 84, 105–06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).
Wilson's argument relies on a laundry list of added requirements, codified in K.S.A.2013 Supp. 22–4907, which he contends makes the current version of the offender registration law punitive in nature. In particular, Wilson points to the requirement under the current statute that an offender must provide a wide variety of information to the State, including samples of his or her DNA. K.S.A.2013 Sup. 22–4907(b). Furthermore, Wilson points out that under the current version of the statute, an offender must report four times each year. K.S.A.2013 Supp. 22–4905(b).
A panel of this court recently considered the same argument as that being made by Wilson in this appeal. In doing so, the panel found that the current version of the statute is constitutional despite its added requirements:
“Although Simmons acknowledges the holdings in Smith and Myers, 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. [Citation omitted.]” (Emphasis added.) State v. Simmons, 50 Kan.App.2d 448, 464–65, 329 P.3d 523 (2014), petition for rev. filed July 25, 2014.
Unless the Kansas Supreme Court indicates that it is departing from a previous decision, lower courts must follow its precedent. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). In accord with this directive, various panels of our court have upheld the constitutionality of KORA through several amendments. See State v.. Evans, 44 Kan.App.2d 945, 948, 242 P.3d 220 (2010) ; State v. Legg, 28 Kan.App.2d 203, 207, 13 P.3d 355 (2000), rev. denied 270 Kan. 901 (2001); State v. Lammert, 104,040, 2011 WL 4440206, at *4 (Kan.App.2011) (unpublished opinion). Thus, for the reasons set forth in Simmons, we conclude that the current version of the KORA does not violate the Ex Post Facto Clause of the United States Constitution.
Failure to Announce Length of Required Registration
Wilson also argues that the district court erred in failing to announce the length of his registration requirement at the sentencing hearing. In order to resolve this issue, we must interpret K.S.A. 22–4906(a)(2) and/or K.S.A.2013 Supp. 22–4906(c). Interpretation of a statute is a question of law over which we have unlimited review. See Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). Although we are to strictly construe criminal statutes in favor of an accused, judicial interpretation of such statutes must be reasonable to achieve legislative intent. State v. Trautloff, 289 Kan. 793, 796–97, 217 P.3d 15 (2009).
In Kansas, sentencing occurs when the district court pronounces the sentence from the bench. State v. Garcia, 288 Kan. 761, 765, 207 P.3d 251 (2009). And, in a criminal case, a “journal entry is merely a record of the sentence imposed, and the district court has no jurisdiction to change the sentence once the court pronounces the sentence.” State v. Jackson, 291 Kan. 34, 35, 238 P.3d 246 (2010).
K.S.A.2013 Supp. 22–4906(c), requires lifetime registration if an offender receives a second or subsequent conviction for an offense that requires registration. See K.S.A. 22–4906(a)(2). As the panel in Simmons found, the unambiguous language of the statute “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 part of, a criminal sentence.” 50 Kan.App.2d at 463. We agree with the analysis expressed in Simmons as well as with the view that offender registration is not a part of sentencing. See 50 Kan.App.2d at 461–63.
Wilson analogizes offender registration requirements to special conditions of probation, which must be pronounced at sentencing in order to be effective. In support of this argument, Wilson cites to State v. Baldwin, 37 Kan.App.2d 140, 150 P.3d 325 (2007). But it is important to recognize that the panel in Baldwin reasoned that the standard conditions of probation—unlike special conditions—need not be pronounced at sentencing because defendants have constructive notice of such conditions. 37 Kan.App.2d at 144 ; accord Jackson, 291 Kan. at 37. Similarly, we find that the terms of K.S.A.2013 Supp. 22–4906(c) —and K.S.A. 22–4906(a)(2) which was in effect at the time Wilson committed his 2008 crime and at his sentencing-clearly and unambiguously provide constructive notice to defendants that if they are convicted of a subsequent crime requiring offender registration, they shall be subject to lifetime registration.
In summary, we do not find a violation of the Ex Post Facto Clause of the United States Constitution. Furthermore, although it would be better to announce the length of the required offender registration at sentencing, we do not find that the failure to do so constitutes reversible error. We, therefore, affirm Wilson's sentence and the KORA requirement of lifetime registration.
Affirmed.