Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., POWELL, J., and MERLIN G. WHEELER, District Judge, assigned.
Jesse Villa appeals the district court's factual finding that Villa committed a crime with a deadly weapon, resulting in the requirement that he register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. Villa argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution when it made this factual finding because such a fact should have been proven to a jury beyond a reasonable doubt. We disagree and affirm.
In January 2014, Villa was charged with severity level 4 aggravated battery after Villa struck Lawrence Butler with a wrench. As part of his plea agreement with the State, Villa pled guilty to a reduced charge of severity level 7 aggravated battery.
At Villa's sentencing and over his objection, the district court made a factual finding that Villa used the wrench as a deadly weapon, triggering the KORA requirement that he register as a violent offender. The district court sentenced Villa to a 24–month term of probation, subject to an underlying 27–month prison sentence, and ordered him to register as an offender for a period of 15 years.
Villa timely appeals.
Did the District Court Violate Villa's Sixth and Fourteenth Amendment Rights?
For the first time on appeal, Villa alleges the district court violated Apprendi by making a factual finding which requires him to register as a violent offender, resulting in an increased punishment and violating his rights under the Sixth and Fourteenth Amendments to the United States Constitution. Villa concedes he did not object to the district court's factual finding that the wrench used in the commission of the crime was a deadly weapon on the basis that it violated Apprendi but argues we should consider it now because it presents a question of law which implicates a denial of his fundamental rights. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). We agree.
Villa's argument requires interpretation of KORA and an examination of its constitutionality, both of which are questions of law over which we exercise unlimited review. See State v. Cheeks, 298 Kan. 1, 4, 310 P.3d 346 (2013) ( “We engage in a de novo review of the constitutionality of a statute.”).
Under Apprendi, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The policy rationale behind Apprendi is that a court violates the United States Constitution if it invades the jury's territory by finding facts at sentencing. See Shepard v. United States, 544 U.S. 13, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (“[T]he Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence.”).
KORA requires a “violent offender” to register. KORA defines a violent offender, in part, as any person who “is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony.” K .S.A.2014 Supp. 22–4902(e)(2). The district court found Villa used the wrench as a deadly weapon in the commission of his crime; therefore, KORA required Villa to register as an offender for 15 years. K.S.A.2014 Supp. 22–4906(a)(1)(M).
Villa claims the district court violated his rights under Apprendi when it made a factual finding that the wrench used in the commission of his crime was a deadly weapon, triggering the requirement that he register as a violent offender under KORA. Villa argues that ordering him to register as a violent offender increased the penalty for his crime and the fact that he used a deadly weapon in committing the crime should have been submitted to a jury and proven beyond a reasonable doubt. Unfortunately for Villa, as both parties note, this court has previously rejected such an argument many times. See, e.g., State v. Weis, 47 Kan.App.2d 703, 719, 280 P.3d 805 (2012), petition for rev. filed July 16, 2012; State v. Unrein, 47 Kan.App.2d 366, 372, 274 P.3d 691 (2012), rev. denied 297 Kan. 1256 (2013); State v. Franklin, 44 Kan.App.2d 156, 160–62, 234 P.3d 860 (2010), rev. denied 297 Kan. 1250 (2013); State v. Chambers, 36 Kan.App.2d 228, 235–39, 138 P.3d 405, rev. denied 282 Kan. 792 (2006); State v. Huey, No. 109,690, 2014 WL 1707807, at *3–6 (Kan.App.2014) (unpublished opinion); State v. Byers, No. 108,564, 2013 WL 3867862, at *6 (Kan.App.2013) (unpublished opinion); State v. McCall, No. 107,112, 2013 WL 1149682, at *2 (Kan.App.) (unpublished opinion), rev. denied 297 Kan. 1253 (2013); State v. Hall, No. 106,903, 2013 WL 646482, at *4 (Kan.App.) (unpublished opinion), rev. denied 297 Kan. 1250 (2013); State v. Dobyns, No. 106,228, 2012 WL 3289968, at *1–2 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1249 (2013); State v. Fields, No. 105,543, 2012 WL 3171795, at *8 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1250 (2013); State v. Everett, No. 103,067, 2011 WL 3250559, at *4–5 (Kan.App.2011) (unpublished opinion), rev. denied 297 Kan. 1250 (2013). Villa argues these cases were wrongly decided and points out that the Kansas Supreme Court has not yet ruled on the issue.
Villa repeats similar arguments raised by the defendants in many of the cases cited above, including Chambers and Unrein, all of which have been rejected by our court. Accordingly, we see no reason to itemize all the arguments again other than to reaffirm our rejection of them as well. Notably, Villa focuses on the punitive and burdensome nature of registration and the stigma attached to it. However, “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.” State v. Simmons, 50 Kan.App.2d 448, 458, 329 P.3d 523 (2014) (citing Smith v. Doe, 538 U.S. 84, 105–06, 123 S.Ct. 1140, 155 L.Ed.2d 164  ; State v. Myers, 260 Kan. 669, 671, 681, 695–96, 923 P.2d 1024 , cert. denied 521 U.S. 1118  ). In particular, concerning Villa's argument that the stigma of registration constitutes punishment, we agree with the panel in Unrein when it observed: “If the stigma attached to public registration as a sex offender is not punishment, the notoriety that [one] might experience for being listed as an individual who used a deadly weapon during the commission of ... crimes is also not punishment.” 47 Kan.App.2d at 371.
Villa also complains that if a defendant does not register as ordered or otherwise violates the conditions of KORA, then that defendant may face additional imprisonment. The implication is that this potential imprisonment makes KORA punitive. However, the Unrein court addressed this argument too, finding that an offender's “exposure to further criminal liability if he would violate KORA is necessary for the efficacy of the regulatory scheme. The purpose of registration is public safety, [citation omitted], and the threat of criminal liability is not punishment but a means to this end.” 47 Kan.App.2d at 372. We agree.
Finally, Villa disagrees with the Unrein court's characterization of KORA's registration fee as nonpunitive. The Unrein court held that
“the $20 fee is not punishment but a way to reimburse sheriffs offices for services provided in the regulatory scheme. See K.S.A.2010 Supp. 22–4904(e) (‘All funds retained by the sheriff ... shall be credited to a special fund ... which shall be used solely for law enforcement and criminal prosecution ... and which shall not be used as a source of revenue to reduce the amount of funding otherwise made available to the sheriff's office.’); State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006) (characterizing BIDS fees as ‘recoupment’ and ‘not fines or, indeed, any part of the punishment or sanction’).” 47 Kan.App.2d at 372.
Villa alleges Unrein's reasoning is flawed, stating the way the State chooses to use the fee does not necessarily reflect the purpose of the fee and providing as authority Southern Union Company v. United States, 567 U.S. ––––, 132 S.Ct. 2344, 2357, 183 L.Ed.2d 318 (2012), which held that criminal fines are penalties to which Apprendi applies. We remain unpersuaded. Southern Union has no bearing on the instant case given our court's repeated holdings that KORA's registration fee is not a criminal fine and that the fee is for recoupment, not punitive purposes. See Weis, 47 Kan.App.2d at 719 ; Byers, 2013 WL 3867862, at *6 ; Hall, 2013 WL 646482, at *4.
Accordingly, because neither registration under KORA nor the imposition of the KORA registration fee constitute punishment implicating Apprendi, the district court did not violate Villa's Sixth and Fourteenth Amendment rights by making a factual finding that triggered Villa's obligation to register as a violent offender.