State v. Jones ( 2023 )

NOT DESIGNATED FOR PUBLICATION
No. 124,174
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEANTE LAPAKA WATLEY JONES,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed January 6,
2023. Appeal dismissed.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Andrew R. Davidson, assistant district attorney, Thomas Stanton, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before GARDNER, P.J., WARNER and COBLE, JJ.
PER CURIAM: After a confrontation led to the gunshot injuries of two people,
Deante Lapaka Watley Jones was charged with two counts of aggravated battery. Jones
claimed he fired his weapon in self-defense. Following an evidentiary hearing, the district
court ultimately denied Jones' motion for self-defense immunity. Jones later entered into
a plea agreement with the State in which he pleaded guilty to amended aggravated battery
charges. The district court sentenced him to 13 months in prison and ordered him to
register as a violent offender.
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Jones now challenges the district court's denial of his self-defense immunity
motion on direct appeal. But because Jones cannot challenge his conviction following a
guilty plea without first attempting to withdraw his guilty plea before the district court,
we lack jurisdiction to review this question and must dismiss this portion of his appeal.
Jones also appeals his registration requirements under the Kansas Offender
Registration Act (KORA). He asserts that KORA is unconstitutional because the
compulsory registration requirement violates the compelled speech doctrine of the First
Amendment to the United States Constitution. Because Jones did not raise this issue
before the district court, the question is not preserved for appeal and we dismiss this
issue.
FACTUAL AND PROCEDURAL BACKGROUND
The confrontation occurred between Jones and Darin Rodriguez—passengers in
separate vehicles—at a stoplight in the streets of Hutchinson, Kansas. Paula Thomas,
Rodriguez' mother, was driving her car in which Rodriguez was a passenger and was
stopped waiting for a left-turn traffic signal. Another car was stopped at the same traffic
light to the right of the car occupied by Thomas and Rodriguez, with Jones in the
backseat of the second car. Rodriguez stepped out of Thomas' vehicle and moments later,
Jones discharged his firearm towards Rodriguez hitting him in his groin. The bullet
ricocheted after passing through Rodriguez and traveled into Thomas' car, causing minor
injury to Thomas' leg.
After Jones' arrest and the State's filing of aggravated battery charges, Jones filed a
motion with the district court claiming self-defense immunity and requesting an order of
dismissal. The district court held a two-day preliminary hearing during which the court
heard witness testimony from both parties.
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Witnesses' recollections of the events varied. Defense witnesses who were in the
same car with Jones testified that Rodriguez was shouting, making threats, and trying to
open the car door behind which Jones was sitting. They also testified that Rodriguez was
lifting his shirt and appeared to be reaching for his waist, as if for a weapon. One of the
State's witnesses also testified that she saw Rodriguez trying to open the door of the other
car. But other State witnesses testified that Rodriguez did not act in a threatening way and
did not try to open the car door. Rodriguez and Thomas testified that the shot was fired
not long after Rodriguez got out of the car. At the conclusion of the hearing, the district
court denied Jones' motion for self-defense immunity.
Jones later entered into a plea agreement with the State in which he pleaded guilty
to two amended charges of aggravated battery, one severity level 7 and one severity level
8. The district court accepted the plea and, during the guilty plea hearing, ordered Jones
to register as a violent offender. The district court denied Jones' departure motion and
during a sentencing hearing on June 11, 2021, ordered concurrent standard grid sentences
of 13 months' incarceration followed by 12 months of postrelease supervision. The
journal entry of judgment noted that Jones needed to register as a violent offender
because of his conviction of a person felony with the district court finding, on the record,
that such felony was committed with a deadly weapon.
Jones timely appeals.
THIS APPELLATE COURT LACKS JURISDICTION OVER THE DISTRICT COURT'S
SELF-DEFENSE IMMUNITY RULING.
Jones first argues that the district court erred by denying his self-defense immunity
motion because it applied an incorrect legal standard. The State responds that Jones
waived this issue because he entered a guilty plea, and even if this court were to reach the
merits of the question, it argues that the district court correctly applied the appropriate
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legal standard. But because Jones challenges the district court's ruling on his self-defense
motion on direct appeal after his voluntary guilty plea, we are deprived of jurisdiction
over this issue.
As a threshold concern, we must first address our jurisdiction over—or power to
hear and decide—the self-defense immunity question on appeal. Whether this appellate
court possesses jurisdiction over a topic on appeal is a question of law over which our
scope of review is unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016).
A party's right to appeal is not constitutional but is entirely statutory. State v.
Smith, 311 Kan. 109, 112, 456 P.3d 1004 (2020). Although exceptions exist, our
appellate courts have jurisdiction to decide an appeal only if the appeal complies with
Kansas statutes. 311 Kan. at 112 ("[T]he Kansas Court of Appeals 'may exercise
jurisdiction only under circumstances allowed by statute.'").
Under K.S.A. 2021 Supp. 22-3602(a), generally, a criminal defendant in Kansas
may appeal as a matter of statutory right from any judgment against him and may seek
review of "any decision of the district court or intermediate order made in the progress of
the case . . . ." But the final sentence of this same statutory subsection bars the appeal of a
defendant's conviction following a guilty plea:
"No appeal shall be taken by the defendant from a judgment of conviction before a
district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other
grounds going to the legality of the proceedings may be raised by the defendant as
provided in K.S.A. 60-1507, and amendments thereto." K.S.A. 2021 Supp. 22-3602(a).
Applying this statute, our appellate courts have repeatedly found that a defendant
may not file a direct appeal of his conviction stemming from a guilty plea unless the
defendant first moves to withdraw the plea and the district court denies the motion. Smith,
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311 Kan. at 112; State v. Hall, 292 Kan. 862, 868, 257 P.3d 263 (2011) (finding a guilty
plea without a subsequent motion to withdraw such plea in the district court deprives the
appellate courts of jurisdiction). Our Supreme Court has found that an accused who
enters a voluntary plea of guilty waives any defects or irregularities in any of the prior
proceedings, even if the defects may reach constitutional dimensions. State v. Coman,
294 Kan. 84, 90, 273 P.3d 701 (2012) (citing State v. Melton, 207 Kan. 700, 713, 486
P.2d 1361 [1971]).
Jones argues that this same statute provides an exception for an appeal following a
guilty plea where jurisdictional grounds are raised. Specifically, he cites the language in
K.S.A. 2021 Supp. 22-3602(a) stating that "jurisdictional or other grounds going to the
legality of the proceedings may be raised by the defendant . . . ." But Jones' argument
contains a critical flaw—it fails to acknowledge the end of that same sentence in K.S.A.
2021 Supp. 22-3602(a), which concludes "as provided in K.S.A. 60-1507, and
amendments thereto." In fact, an argument identical to Jones' has been reviewed by our
Supreme Court and settled for us in Smith, 311 Kan. at 112.
In Smith, the defendant ignored the same portion of statutory language as Jones
avoids here. Our Supreme Court found ambiguity in the language of K.S.A. 2018 Supp.
22-3602(a) that was omitted "as provided in K.S.A. 60-1507, and amendments thereto,"
and considered how to correctly interpret the statute. 311 Kan. at 113. There, our
Supreme Court determined that the statute could be read in two ways. First, it could be
read to mean that appellate courts have jurisdiction over appeals from guilty pleas or nolo
contendere pleas if the defendant is challenging the jurisdictional grounds, the legality of
the proceedings, or through any claims permitted under K.S.A. 60-1507. Smith, 311 Kan.
at 113-14. Or, second, the statute could be read to prohibit appeals from guilty pleas or
nolo contendere pleas but ensure that prisoners in custody may still file K.S.A. 60-1507
motions in district court and may appeal a ruling denying K.S.A. 60-1507 relief. 311
Kan. at 115.
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The Supreme Court determined the first proposed construction to be problematic
because both K.S.A. 22-3602(a) and K.S.A. 60-1507 allow challenges based on
"'jurisdictional . . . grounds'" and reading the statutes in this way would render one or the
other statutory provisions meaningless. 311 Kan. at 114-15. The only way to read the
statute in harmony with other statutes and so it does not conflict with legislative intent is
the second reading. 311 Kan. at 119. As a result, K.S.A. 2021 Supp. 22-3602(a) prohibits
direct appeals from guilty pleas but confirms that defendants may still challenge the
conviction or sentencing by filing a motion in the district court under K.S.A. 60-1507.
See 311 Kan. at 113-19.
Here, Jones' appeal is not a collateral proceeding through a K.S.A. 60-1507
motion, nor does it follow a motion to withdraw his guilty plea. He merely raises the
jurisdictional grounds exception in K.S.A. 2021 Supp. 22-3602(a) in an attempt to bypass
a statutorily required procedure and to advance a direct appeal of his conviction after a
guilty plea. But under K.S.A. 2021 Supp. 22-3602(a) and controlling Kansas Supreme
Court precedent, this court is deprived of appellate jurisdiction to review the appeal of the
district court's ruling on Jones' self-defense immunity motion.
Because we lack jurisdiction over this question, we must dismiss this portion of
Jones' appeal.
WE DO NOT REACH WHETHER KORA VIOLATES THE COMPELLED SPEECH DOCTRINE
UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION.
Jones next argues that KORA, K.S.A. 22-4901 et seq., violates his First
Amendment protections against compelled speech under the United States Constitution.
Jones contends that his registration under K.S.A. 2021 Supp. 22-4902(e)(2) and K.S.A.
2021 Supp. 22-4906(a)(2) compels him to provide his personal information under threat
of incarceration, and then when the registration information is published by the
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government, it equates to compelled speech. He also argues K.S.A. 2021 Supp. 22-4907,
requiring specific information from an offender, denies him the ability to speak
anonymously. The State argues that KORA does not violate the First Amendment
because the publication of the information is government speech, and KORA has already
been upheld under the strict scrutiny test by various Kansas courts.
A statute's constitutionality is a question of law subject to unlimited review by the
appellate courts. State v. Bodine, 313 Kan. 378, 396, 486 P.3d 551 (2021). But before
reviewing the constitutionality of the KORA statute, we must first determine whether the
argument is properly before us. And again, we are unable to reach the merits of Jones'
argument.
This court may have jurisdiction over the legal question, but this is not determinative of
this appeal given the lack of preservation.
Both statutory authority and caselaw lack clarity on whether under these specific
circumstances the appellate court possesses jurisdiction to decide Jones' direct appeal of
the district court's order for KORA registration. As discussed above, Jones cannot appeal
his conviction without first seeking to withdraw his guilty plea, yet K.S.A. 2021 Supp.
22-3602(a) permits him to appeal his sentence. But whether the KORA registration
requirement is part of his sentence, or not, may be a fact-based inquiry.
We acknowledge that, in State v. Marinelli, 307 Kan. 768, 415 P.3d 405 (2018),
our Supreme Court considered whether the appellate courts have jurisdiction to consider
a direct appeal of the district court's KORA registration order and concluded we do. Our
Supreme Court determined that, although "within KORA, there are statutory provisions
that argue against considering registration to be part of a criminal sentence" which would
then remove it as a permitted appeal under K.S.A. 2017 Supp. 22-3602(a), the court
found that it had jurisdiction to consider Marinelli's direct appeal of the district court's
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KORA registration order, despite his earlier no-contest plea. 307 Kan. at 786-88.
Generally, the Supreme Court found the order requiring Marinelli to register was neither
a part of his sentence, nor a part of his conviction, but falls under the "more expansive
language" found in the first sentence of K.S.A. 2017 Supp. 22-3602(a) implying an
appeal is permitted from "'any judgment[,] . . . decision[,] . . . or intermediate order made
in the progress of the case.'" 307 Kan. at 787-88.
But the decision in Marinelli was not entirely comprehensive; that is, it did not
establish a bright-line rule that all challenges to KORA's duty to register are permitted
under K.S.A. 2017 Supp. 22-3602(a). Our Supreme Court recognized there exist different
categories of KORA registration—not simply an obligation that arises "'automatically by
operation of law without court involvement.'" 307 Kan. at 785. While some "aspects of
KORA appear self-executing, . . . others depend on a district court's exercise of discretion
or judicial fact-finding." 307 Kan. at 784. Marinelli argued that he had no duty to register
as a result of procedural errors by the district court—a lack of finding on the record that
his crime was committed with a deadly weapon, and the district court's failure to inform
him at the time of his conviction about his KORA registration duties. And although the
Supreme Court found the "more expansive language" of K.S.A. 2017 Supp. 22-3602(a)
covered the district court's deadly weapon finding in Marinelli's case, it noted that even
those instances where the registration requirement springs from the convicted offense
merely "should be caught up in the jurisdictional net cast by the first sentence in K.S.A.
2017 Supp. 22-3602(a)"—but "should be" does not a definitive answer make. 307 Kan. at
787.
Unlike in Marinelli, here, the facts do not provide a clear picture of the district
court's findings on Jones' KORA registration. The district court first ordered Jones to
register as a violent offender during the guilty plea hearing, two months before
sentencing. Then, during the sentencing hearing, the district court neither mentioned
registration requirements nor made any specific findings about the use of a deadly
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weapon. Only the journal entry of judgment noted that Jones needed to register as a
violent offender because of his conviction of a person felony with the district court
finding, on the record, that such felony was committed with a deadly weapon. The
location of this finding in the record is neither obvious nor argued by the parties.
But our discussion of statutory jurisdiction under K.S.A. 2021 Supp. 22-3602(a) is
not determinative, because we decline to reach the merits for another jurisdictional
reason. Also distinguishing this case from Marinelli is that Marinelli objected to his
KORA registration at his sentencing hearing, so the preservation of his claim on appeal
was not addressed by the appellate court. 307 Kan. at 408-09. Here, though, Jones never
challenged his KORA registration before the district court.
This issue was not properly preserved for appellate review.
Jones concedes that he did not raise his KORA registration argument in the district
court, and the State agrees. A longstanding credo in the appellate court is that, generally,
constitutional issues not raised before the district court cannot be raised on appeal. State
v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018) (citing State v. Godfrey, 301 Kan.
1041, 1043, 350 P.3d 1068 [2015]).
As noted by Jones, there are several exceptions to this general rule, including: (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) resolution of the question is necessary to
serve the ends of justice or to prevent denial of fundamental rights; and (3) the district
court was right for the wrong reason. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036(2019).
Kansas Supreme Court Rule 6.02(a)(5) (2022 Kan. S. Ct. R. at 36) requires an
appellant to explain why an issue that was not raised below should be considered for the
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first time on appeal. Johnson, 309 Kan. at 995. Our Supreme Court has repeatedly
warned that Rule 6.02(a)(5) would be strictly enforced, and litigants who failed to
comply with this rule risked a ruling finding the issue improperly briefed, and the issue
would be deemed waived or abandoned. See Daniel, 307 Kan. at 430 (citing Godfrey,
301 Kan. at 1043-44; State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 [2014]).
Jones does not provide any explanation or excuse as to why this issue was not
raised in the district court. Rather, he asserts that his claim on appeal meets the first two
exceptions for preservation, because he maintains there are no factual disputes, this is
simply a facial challenge to the law, and a fundamental right afforded by the First
Amendment to the United States Constitution is being denied. Jones insists that it would
be a "tragic error" if this court finds his issue was not preserved.
We disagree with Jones as to how his claim meets these exceptions. Although he
calls this a facial challenge to KORA's constitutionality, as framed it resembles an as-
applied challenge. Factual questions remain about the form and timing of the district
court's imposition of the KORA requirements. Jones also implores us to review the
government's use of 21 types of information sought under KORA in K.S.A. 2021 Supp.
22-4907(a) and whether the information sought is already held or otherwise accessible by
the government—information not readily available through the record.
As an appellate court, our decision to review an unpreserved claim under either
exception presented by Jones is a prudential one, and even if one of the exceptions were
satisfied, we are under no obligation to review the newly asserted claim. State v. Robison,
314 Kan. 246, 248, 496 P.3d 892 (2021); see also State v. Gray, 311 Kan. 164, 170, 459
P.3d 165 (2020) (Declining to reach an unpreserved claim and finding the failure to
present the argument to the district court "deprived the trial judge of the opportunity to
address the issue in the context of this case and such an analysis would have benefitted
our review.").
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Finding Jones' constitutional claim is not preserved, we decline to exercise our
appellate jurisdiction to address his KORA claim for the first time on appeal. A recent
panel of this court similarly acknowledged that it need not address the same KORA
constitutional question on appeal and that the decision to review claims under this
exception is prudential. State v. Masterson, No. 124,257, 2022 WL 3692859, at *2 (Kan.
App. 2022) (unpublished opinion) (citing Gray, 311 Kan. at 170). In Masterson, although
the panel noted it "need not address this issue" because it was not raised for first time on
appeal, the panel then declared: "[I]f we were to address this issue, it is legally and
fatally flawed." 2022 WL 3692859, at *2.
Likewise, even if we were to reach Jones' unpreserved constitutional claim, which
we decline to do, Masterson and Kansas federal courts have found, contrary to Jones'
position, that KORA does not violate the compelled speech doctrine under the First
Amendment. Masterson, 2022 WL 3692859, at *2; see United States v. Fox, 286 F. Supp.
3d 1219, 1221-24 (D. Kan. 2018) (finding that the federal Sex Offender Registration and
Notification Act did not compel speech in violation of the First Amendment; "the law
serves a compelling government interest and does so in a narrowly tailored fashion. It
does not offend the First Amendment."); Davis v. Thompson, No. 19-3051-SAC, 2019
WL 6327420, at *3 (D. Kan. 2019) (unpublished opinion) (finding "if Plaintiff is
attempting to claim that KORA offends the First Amendment as a result of compelled
speech, such claim fails"). There are no novel arguments asserted by Jones
distinguishable from those presented by the defendant in Masterson, and so were we to
reach the merits of his unpreserved argument, it is likely to be similarly flawed.
CONCLUSION
Because Jones entered a guilty plea before the district court, he may not file a
direct appeal of his conviction stemming from that plea unless he first moves to withdraw
the plea and the district court denies the motion. But Jones did not seek to withdraw his
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plea, and so under K.S.A. 2021 Supp. 22-3602(a) and controlling Kansas Supreme Court
precedent, we lack jurisdiction over the appeal of the district court's denial of Jones' self-
defense immunity motion.
Additionally, Jones failed to preserve his constitutional question on KORA
registration. We find it is not prudential to reach this issue, so because the issue is
unpreserved, we also do not consider the merits of his KORA question.
Appeal dismissed.
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