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State v. Askew

Court of Appeals of Kansas.
Oct 24, 2014
336 P.3d 921 (Kan. Ct. App. 2014)

Opinion

Nos. 108,784 108,785 108,786 108,787 108,799 108,800 108,803 108,900 108,901 109,398 109,431 109,453 109,498.

2014-10-24

STATE of Kansas, Appellee, v. Edwuan L. ASKEW, et al., Appellants.

Appeal from Sedgwick District Court; Eric A. Commer, Judge.Michael P. Whalen, of Law Offices of Michael P. Whalen, of Wichita, for appellant.Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Sedgwick District Court; Eric A. Commer, Judge.
Michael P. Whalen, of Law Offices of Michael P. Whalen, of Wichita, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., STEGALL, J., and HEBERT, S.J.

MEMORANDUM OPINION


PER CURIAM.

This appeal consists of 13 consolidated cases. Each individual defendant filed a motion challenging the retroactive application of the 2011 amendments to the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , as they applied to them individually. For simplicity purposes, Edwuan L. Askew or the phrase “the defendants” will be used as the primary representative for all the other the parties (defendants) referenced in this opinion.

Askew appeals the trial court's determination that it lacked subject matter jurisdiction to consider his filings which challenged the retroactive application of the 2011 amendments to KORA. On appeal, Askew maintains that the trial court had subject matter jurisdiction to address the merits of his claims as a motion to correct an illegal sentence. He further argues that the retroactive application of the 2011 amendments to KORA is punitive and therefore a violation of the Ex Post Facto Clause of the United States Constitution. Because we determine that the trial court lacked subject matter jurisdiction to consider the merits of the defendants' claims, we dismiss this appeal. Edwuan Askew 108,784

On July 2, 2002, Askew was charged with second-degree murder. Following a jury trial, Askew was found guilty of a lesser included offense—voluntary manslaughter. Later, Askew was sentenced to a controlling prison sentence of 107 months. When Askew was convicted, his conviction did not require registration. But in 2011, KORA was amended, and Askew was required to register. See K.S .A.2011 Supp. 22–4902(e)(1)(D). While on postrelease supervision in 2012, Askew moved to challenge the retroactive application of KORA. In addition, Askew's motion sought to join all motions exhibits, submissions, and assertions that had been filed in the trial court case of State v. Ward, 99 CR 1751, in Sedgwick County District Court, that raised the same arguments. Jeremy Fisher 108,785

On February 7, 2008, Jeremy Fisher was charged with aggravated criminal sodomy, rape, and aggravated burglary. Eventually, Fisher pled no contest to aggravated sexual battery, aggravated burglary, and aggravated intimidation of a witness or victim. Fisher was sentenced to a controlling prison term of 32 months. At sentencing, the trial court notified Fisher of his duty to register as an offender for a term of 10 years. On April 18, 2012, Fisher moved to challenge the retroactive application of KORA. In addition, Fisher's motion also sought to join all motions exhibits, submissions, and assertions that had been filed in Ward, 99 CR 1751. Fisher timely filed his notice of appeal from the denial of his motion for lack of jurisdiction. Bryan Crowe 108,786

On September 19, 2011, Bryan Crowe was charged with attempted aggravated indecent liberties with a child and possession of marijuana. Crowe pled no contest to the charges. On December 21, 2001, Crowe was granted probation with an underlying controlling prison sentence of 31 months. At sentencing, Crowe was certified as a sex offender and notified of his duty to register under KORA. On April 12, 2012, Crowe moved to challenge the retroactive application of KORA. In addition, Crowe's motion also sought to join all motions exhibits, submissions, and assertions that had been filed in Ward, 99 CR 1751. Cleveland Grayson 108,787

On March 7, 2002, Cleveland Grayson was charged with two counts of aggravated indecent liberties with a child and one count of contributing to a child's misconduct. Grayson pled guilty to the charges. On April 24, 2002, Grayson was granted probation with an underlying controlling prison sentence of 122 months. The trial court certified Grayson as a sex offender and notified him of his duty to register under KORA. On April 20, 2012, Grayson moved to challenge the retroactive application of KORA. In addition, Grayson's motion also sought to join all motions exhibits, submissions, and assertions that had been filed in Ward, 99 CR 1751. Christopher Blevins 108,799

On August 11, 2008, Christopher Blevins was charged with indecent liberties with a child. Blevins pled guilty to the charge. On January 8, 2009, Blevins was granted probation with an underlying controlling prison sentence of 32 months. At sentencing, Blevins was notified of his duty to register under KORA. On April 24, 2012, Blevins moved to challenge the retroactive application of KORA. In addition, Blevins' motion also sought to join all motions exhibits, submissions, and assertions that had been filed in Ward, 99 CR 1751. Fernando A. Faguaga 108,800

On May 13, 2003, Fernando A. Faguaga was charged with aggravated indecent liberties with a child. Faguaga pled no contest to the charge. On October 10, 2003, Faguaga was granted probation with an underlying controlling prison sentence of 12 months. Faguaga was certified as a sex offender and notified of his duty to register under KORA. On April 12, 2012, Faguaga moved to challenge the retroactive application of KORA. In addition, Faguaga's motion also sought to join all motions exhibits, submissions, and assertions that had been filed in Ward, 99 CR 1751. Shawn Haywood 108,803

On June 25, 2004, Shawn Haywood was charged with one count of aggravated indecent liberties with a child. Haywood pled guilty to the charge. On April 21, 2005, Haywood was granted probation with an underlying prison sentence of 29 months. On April 12, 2012, Haywood moved to challenge the retroactive application of KORA. In addition, Haywood's motion also sought to join all motions exhibits, submissions, and assertions that had been filed in Ward, 99 CR 1751. Mark Lankford 108,900

On July 20.2001, Mark Lankford was charged with one count of rape. Subsequently, Lankford entered an Alford plea to attempted aggravated sexual battery. Lankford was granted probation with an underlying controlling prison sentence of 23 months. At sentencing, Lankford was certified as a sex offender and notified of his duty to register under KORA. On April 12, 2012, Lankford moved to challenge the retroactive application of KORA. In addition, Lankford's motion also sought to join all motions exhibits, submissions, and assertions that had been filed in Ward, 99 CR 1751. Willie Toodle 108,901

On July 27, 2009, Willie Toodle was charged with one count of aggravated battery. Toodle pled guilty to the crime and stipulated that it was sexually motivated. Toodle was granted probation with an underlying controlling prison sentence of 18 months. Toodle was informed of his duty to register as an offender under KORA for 10 years. On August 2, 2012, Toodle moved to challenge the retroactive application of KORA. Tracy Bailey 109,398

On October 28, 1998, Tracy Bailey was charged with one count of aggravated indecent liberties with a child. Bailey pled guilty to the charge. Bailey was granted probation with the condition that he enter, and successfully complete, a program at Labette Correctional Conservation Camp. Because Bailey did not complete the program, his original sentence—which was 62 months—was imposed. Bailey was certified as a sex offender and notified of his duty to register under KORA. On April 18, 2012, Bailey moved to challenge the retroactive application of KORA. In addition, Bailey's motion also sought to join all motions exhibits, submissions, and assertions that had been filed in Ward, 99 CR 1751. Edmond Hayes 109,431

On December 30, 1997, Edmond Hayes was charged with one count of voluntary manslaughter. Following a jury trial, Hayes was found guilty of a lesser included offense—involuntary manslaughter. Hayes' conviction did not require registration when he was sentenced. On May 12, 1998, Hayes was sentenced to a controlling prison sentence of 31 months. On June 26, 2012, Hayes moved to challenge the retroactive application of KORA. In addition, Hayes' motion sought to join all motions exhibits, submissions, and assertions that had been filed in Ward, 99 CR 1751. T.P. 109,453

On October 16, 2008, T.P. was charged with 10 counts of violating the offender registration act. T.P. was required to register under a juvenile adjudication for aggravated criminal sodomy. On February 23, 2009, T.P. was granted probation with an underlying prison sentence of 34 months. On April 24, 2012, T.P. moved to challenge the retroactive application of KORA. Terry Ockert 109,498

On November 28, 2007, Terry Ockert was charged with two counts of aggravated assault. Ockert pled guilty to both charges. Ockert was granted probation with an underlying controlling prison sentence of 42 months. At sentencing, the trial court found that a deadly weapon was used during Ockert's crimes, which meant that he was required to register under KORA for 10 years. On April 24, 2012, Ockert moved to challenge the retroactive application of KORA. In addition, Ockert's motion also sought to join all motions, exhibits, submissions, and assertions that had been filed in Ward, 99 CR 1751.

After considering its rulings in Ward, the trial court similarly held that it lacked jurisdiction to consider each of the defendants' claims. As in Ward, the trial court held that it did not have jurisdiction to hear or rule on the defendants' constitutional challenges or motions in a criminal case because: (1) the trial was completed; (2) the probation was completed or terminated or a felony sentence of imprisonment had been placed into effect; (3) the appeal rights were exhausted or expired; and (4) the convictions had not been expunged. The trial court advised each defendant that its holding did not prevent them from bringing their claims in civil actions. Did the Trial Court Lack Subject Matter Jurisdiction to Address the Merits of Askew's Claims?

Askew's main argument is that amendments to the KORA—which were enacted in 2011—violate the Ex Post Facto Clause of the United States Constitution. In particular, Askew notes that his conviction originally did not require him to register, but the 2011 KORA amendments now requires him to register as an offender. Askew contends that the effects of the 2011 amendments to KORA are punitive and therefore retroactive application is a violation of the Ex Post Facto Clause. The State disagrees, arguing that the trial court properly dismissed Askew's motions for lack of subject matter jurisdiction.

For the first time on appeal, Askew argues that the trial court had jurisdiction to consider the merits of his claims under K.S.A, 22–3504 as a motion to correct an illegal sentence. In response, the State maintains that the trial court properly dismissed Askew's claims for lack of jurisdiction. Specifically, the State contends that the trial court lacked jurisdiction over claims raised regarding Askew's previously adjudicated criminal case and therefore, the case was properly dismissed for a lack of jurisdiction.

Whether jurisdiction exists is a question of law over which appellate courts exercise unlimited review. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014). Moreover, an appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, an appellate court must dismiss the appeal. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). To the extent this case will require statutory interpretation, such interpretation is a question of law over which an appellate court has unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).

First, we must consider Askew's illegal sentence argument that was not raised before the trial court. Askew maintains that this court can address his illegal sentence argument because “registration was a part of sentencing and ... the enforcement of the original sentence was raised by Mr. Askew.”

Appellate courts may consider Askew's illegal sentence arguments for the first time on appeal. Under K.S.A. 22–3504, Kansas courts have “specific statutory jurisdiction to correct an illegal sentence at any time.” State v. Scherzer, 254 Kan. 926, 930, 869 P.2d 729 (1994); see also State v. Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013) (“This court may correct an illegal sentence sua sponte.”).

Whether a sentence is illegal is a question of law over which appellate courts have unlimited review. Under K.S.A. 22–3504, an illegal sentence is defined 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 punishment authorized; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. See State v. Gilbert, 299 Kan. 797, Syl. ¶ 2, 326 P.3d 1060 (2014).

This court can quickly dispose of this argument based on this court's recent holding in State v. Simmons, 50 Kan.App.2d 448, 329 P.3d 523 (2014). In Simmons, our court held that offender registration is not part of a defendant's sentence. In reaching its decision, the Simmons court stated the following:

“Because an offender's statutory duty to register is imposed automatically by operation of law, without court intervention, as a collateral consequence of judgment with a stated objective of protecting public safety and not punishment, we necessarily conclude that the registration requirements—no matter when imposed—are not part of an offender's sentence.” 50 Kan.App. 451.
Because offender registration is not part of Askew's sentence, his illegal sentence argument fails. Consequently, this court lacks jurisdiction to address Askew's offender registration argument. The Trial Court's Jurisdiction Finding

In the alternative, we will consider the trial court's lack of subject matter jurisdiction holding. In reaching its decision, the trial court stated the following:

“[T]he district court does not have jurisdiction to hear or rule on such a constitutional challenge or other motion within a criminal case for which 1) the trial has been completed; and 2) probation has been completed or terminated or a felony sentence of imprisonment has been placed in effect; and 3) appeal rights have expired or been exhausted; and 4) for which the conviction has not been expunged.”
The trial court explained that its decision did not prevent Askew from asserting his constitutional challenges in an appropriately filed civil action, such as a declaratory judgment.

Thus, we must decide the following question: Did the trial court properly determine that it lacked jurisdiction to address the merits of Askew's case as filed under his previously adjudicated criminal case?

“Subject matter jurisdiction establishes the court's authority to hear and decide a particular action. It cannot be conferred by consent, waiver, or estoppel. Nor can parties convey subject matter jurisdiction onto a court by failing to object to the court's lack of jurisdiction. If the district court lacks subject matter jurisdiction, an appellate court cannot acquire jurisdiction over the subject matter on appeal.” Sleeth v. Sedan City Hospital, 298 Kan. 853, 868, 317 P.3d 782 (2014) (citing Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 [2009] ).

In Kansas, trial courts “have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law.” K.S.A. 20–301. Trial courts have “exclusive jurisdiction to try all cases of felony and other criminal cases arising under the statutes of the state of Kansas.” K.S.A. 22–2601. Moreover, “[s]ubject matter jurisdiction lies in the district court and follows the defendant through the process of the issuing of the complaint, arrest pursuant to a warrant, initial appearance, the setting or denial of bond at the bond hearing, and the preliminary hearing, arraignment, and trial.” State v. Hall, 246 Kan. 728, 757, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).

The trial court retains jurisdiction over a case until its order becomes final. See Sanders v. City of Kansas City, 18 Kan.App.2d 688, 692, 858 P.2d 833 (“In Kansas, the district court retains jurisdiction until an appeal is docketed with the appellate court.”), rev. denied 253 Kan. 860 (1993), cert. denied 511 U.S. 1052 (1994). A judgment becomes final in a criminal case once the defendant has been convicted and sentenced. State v. Howard, 44 Kan.App.2d 508, 511, 238 P.3d 752 (2010).

Our appellate courts have held that the Kansas Sentencing Guidelines Act does not give a trial court continuing jurisdiction after a sentencing proceeding is concluded. State v. Trostle, 41 Kan.App.2d 98, 102, 201 P.3d 724 (2009) (citing State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 [1996] ). When a lawful sentence has been imposed under the sentencing guidelines, the sentencing court loses subject matter jurisdiction to modify that sentence except to correct arithmetic or clerical errors under K.S.A. 21–4721(i), recodified as K.S.A.2013 Supp. 21–6820(i). See State v. Guder, 293 Kan. 763, 766, 267 P.3d 751 (2012). K.S.A.2013 Supp. 22–4908

Here, the parties dispute whether K.S.A.2013 Supp. 22–4908 applies in this case. K.S.A.2013 Supp. 22–4908 reads as follows:

“No person required to register as an offender pursuant to the Kansas offender registration act shall be granted an order relieving the offender of further registration under this act. This section shall include any person with any out of state conviction or adjudication for an offense that would require registration under the laws of this state.”

Initially, KORA allowed a registrant to petition for relief from registration obligations. See K.S.A.1993 Supp. 22–4908. But in 2001, the legislature amended this statute and explicitly made it clear that no registrant can be relieved of his or her registration obligations. See K.S.A.2001 Supp. 22–4908. In 2011, the legislature again amended this statute to include registrants with out-of-state convictions that would require registration in Kansas. See K.S.A.2011 Supp. 22–4908 (same as 2013 Supp.).

KORA is listed under the Kansas Code of Criminal Procedure, thus, it is presumed that the statutes listed in KORA are applicable to criminal jurisdiction. Under K.S.A.2013 Supp. 22–4908, a criminal court does not have the authority to relieve a registrant of his or her obligation to register. Nevertheless, nothing in the statute prevents a registrant from challenging his or her registration obligations in a separate civil action. Moreover, K.S.A.2013 Supp. 22–4908 is inapplicable to Askew's constitutional challenge to his registration requirement. Askew is not seeking to simply be relieved of his registration duties early. Instead, Askew seeks a declaration that the 2011 amendments are unconstitutional. As a result, he argues registrant's offender registration time period could not be extended after originally imposed.

Although not controlling authority, an Idaho court has addressed whether a criminal trial court has jurisdiction to hear an appeal under the Idaho sex offender registration act in a previously dismissed or fully adjudicated criminal case. In State v. Johnson, 152 Idaho 41, 266 P.3d 1146 (2011), an adult sex offender filed a petition in his previously dismissed criminal case seeking an exemption from his duty to register as a sex offender. The trial court denied his petition.

On appeal, the Idaho Supreme Court held that it had no jurisdiction to decide the appeal because sex offenders seeking exemption from filing under the Idaho act must file their petitions as new civil actions if their criminal cases have been dismissed or Hilly adjudicated and the time for appeal had run. 152 Idaho at 48. The Johnson court held that the plain language of the statute made it “clear that the Legislature did not extend the district court's jurisdiction to entertain petitions as part of a criminal action.” 152 Idaho at 48. The court focused on the language in the statute that required an offender convicted out of state to file his or her petition in the county in which he or she resides. The Johnson court reasoned that a person convicted out of state could not petition for relief in the criminal proceeding that resulted in the conviction. 152 Idaho at 48. Further, the court held that the registration requirement was regulatory in nature rather than criminal; thus, it followed that a challenge to the registration requirement should be a civil proceeding. 152 Idaho at 48.

The reasoning used in Johnson applies to this case. For example, K.S.A.2013 Supp. 22–4908 states that “[n]o person required to register as an offender pursuant to the Kansas offender registration act shall be granted an order relieving the offender of further registration under this act.” Also, K.S.A.2013 Supp. 22–4908 states that any person who has an out-of-state conviction or adjudication for an offense that would require registration under Kansas law is included under this statute for registration.

Here, Askew filed this action in the 18th Judicial District of Kansas, where he was charged with second-degree murder but was convicted of voluntary manslaughter. If Askew and the other defendants are correct and the 18th Judicial District of Kansas would continue to have jurisdiction over their cases because it involves a part of their sentence, what judicial district of Kansas would have jurisdiction over a person who has an out-of-state conviction that requires registration in Kansas?

It is obvious that a person convicted of an out-of-state crime that requires registration in Kansas would be unable to petition in a Kansas criminal proceeding for relief concerning his or her out-of-state conviction. Thus, from the plain language of K.S.A.2013 Supp. 22–4908, it is clear that the Kansas Legislature did not extend to the 18th Judicial District of Kansas jurisdiction to entertain petitions challenging the registration requirements of KORA as part of a criminal action.

Accordingly, we dismiss this appeal for lack of jurisdiction.


Summaries of

State v. Askew

Court of Appeals of Kansas.
Oct 24, 2014
336 P.3d 921 (Kan. Ct. App. 2014)
Case details for

State v. Askew

Case Details

Full title:STATE of Kansas, Appellee, v. Edwuan L. ASKEW, et al., Appellants.

Court:Court of Appeals of Kansas.

Date published: Oct 24, 2014

Citations

336 P.3d 921 (Kan. Ct. App. 2014)