State v. Borst ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,839
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CHRISTINA MICHELLE BORST,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opinion filed December
10, 2021. Affirmed.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before BUSER, P.J., POWELL and HURST, JJ.
PER CURIAM: Christina Borst pled guilty to two counts of aggravated assault
without entering into a plea agreement. At sentencing, the district court found that Borst
used a deadly weapon in the commission of her crime which required her to register for
15 years under the Kansas Offender Registration Act (KORA). Borst appeals, asserting
for the first time that the district court violated her United States and Kansas
constitutional rights by determining she had to register under KORA.
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FACTUAL AND PROCEDURAL BACKGROUND
In January 2020, Borst pled guilty to two counts of aggravated assault
related to an incident on November 17, 2019. Unlike most instances of pleas,
Borst did not enter into a plea agreement with the State in exchange for her plea.
The complaint alleged Borst "unlawfully, feloniously, and knowingly place[d]"
her parents "in reasonable apprehension of immediate bodily harm with a deadly
weapon, a severity level 7 person felony, which constitutes a domestic violence
offense . . . ." (Emphasis added).
At the plea hearing, Borst confirmed she understood the charges against her
and wanted to plead guilty. The district court explained that by entering into a plea
she was giving up her presumption of innocence and her right to contest the
charges through a trial. She also stated that she received no promises in exchange
for her pleas.
The district court asked the State to provide a factual basis to support the
charges. The State asserted its evidence would show that police officers responded
to multiple calls at Borst's parents' house and were told that Borst was having a
mental health crisis. The officers responded for a final time and learned Borst
picked up two large kitchen knives, pointed them at her parents in a threatening
manner and told them, "'I will fight you.'"
The district court asked Borst whether she heard and understood the State's
factual basis. Borst said, "Yes." The district court then asked Borst whether, to the
best of her recollection, the State's factual basis was "an accurate statement of the
facts of [the] case." Again, Borst said, "Yes." Finally, the district court asked Borst
to think about the rights she was giving up by entering her pleas and asked, "[I]s it
still your desire to plead guilty to Counts I and II of the Complaint?" Borst
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responded, "Yes." The court accepted Borst's pleas, and Borst provided no other
information for the court to consider.
The court held a sentencing hearing in March 2020 and determined, through the
presentence investigation (PSI) report, that Borst had a criminal history score of H as to
Count I and a criminal history score of I as to Count II, and that both counts were severity
level 7 person felonies. Borst's parents gave statements regarding their daughter's history,
her reported psychological problems, and her actions that led to the charges; and they
requested that she receive help. The State requested a litany of orders from the court,
including:
• Borst be required to take her medication as prescribed;
• attend substance use treatment;
• have a mental health and domestic violence evaluation; and
• she be ordered to live in a residential placement facility.
The State also requested the district court make a "deadly weapon finding" and order
Borst to register as a violent offender because of the "knives in this case." The State also
cited Borst's prior assault convictions and noted that she had a pending case for returning
to her parents' house and attempting to enter the premises while she was out on bond for
the current charges.
The district court allowed Borst to respond, whereupon her attorney requested
probation in the community and agreed that a mental health evaluation and compliance
with treatment recommendations should be required. Her attorney explained that Borst's
limited criminal history did not warrant residential placement, but conceded that it could
be an option in the future if necessary. Her attorney also pointed out that Borst has served
109 days in custody awaiting her plea and sentencing. Her attorney then said, "The final
thing that I would request is that there not be a finding of a deadly weapon in this case."
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After hearing the testimony, the district court sentenced Borst to 12 months on
Count I and 11 months on Count II, and ordered the sentences to run consecutively. In
lieu of imprisonment, the district court ordered Borst to serve 24 months of probation at
an adult residential center followed by 90 days at a substance use treatment center. The
district court also ordered that Borst have mental health, substance abuse, and domestic
violence evaluations and follow any recommendations. Finally, the district court stated
that it "does make the deadly weapon finding in this case and is going to require
registration." Borst did not object or provide any further statement or testimony regarding
the sentence.
Borst appealed.
DISCUSSION
The district court's deadly weapon finding requires Borst to register under
KORA for a period of 15 years. K.S.A. 2020 Supp. 22-4901 et seq; see K.S.A.
2020 Supp. 22-4902(a)(2), (e)(2); K.S.A. 2020 Supp. 22-4906(a)(1)(N). Borst
appeals her KORA registration requirements alleging, for the first time on appeal,
that the district court erred by: (1) engaging in judicial fact-finding in violation of
her constitutional right to a jury trial to determine she was required to register
under KORA; (2) requiring KORA registration because it violates her
constitutional due process rights; and, (3) engaging in judicial fact-finding to
determine Borst's criminal history score in violation of the United States and
Kansas Constitutions.
I. Borst Failed to Preserve her Claims
As a preliminary matter, this court does not typically entertain claims not properly
preserved for its consideration. State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020).
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The district court is in the best position to engage in fact-finding, and this court will not
reweigh the evidence and relitigate the matter. State v. Butler, 307 Kan. 831, 844-45, 416
P.3d 116 (2018).
Borst acknowledges she failed to raise any of her now-asserted constitutional
violations to the district court. Despite this failure, Borst encourages this court to address
the merits of her claims for the first time on appeal because (1) the issues involve a pure
question of law arising on proven or admitted facts and are finally determinative of the
case; and (2) consideration of the issues is necessary to prevent a denial of her
fundamental rights. See, e.g., State v. Northern, 304 Kan. 860, 864-65, 375 P.3d 363(2016) (explaining the exceptions to the preservation requirement).
II. Borst's Claims
Borst pled guilty to the charges without an assurance of leniency or charge
reduction, and she now asserts for the first time that the district court violated her United
States and Kansas constitutional rights.
Borst alleges the district court violated her right to a jury trial when it
found she used a deadly weapon in commission of the two aggravated assaults. Borst
failed to preserve this claim. The complaint alleged that Borst used a deadly weapon and
at the plea hearing the State requested that finding. Although Borst's attorney requested
the court find otherwise, neither the attorney nor Borst contested the district court's
deadly weapon finding. Borst failed to object to the court's determination or allege any
constitutional violations at the plea hearing or sentencing. Moreover, Borst acknowledges
that the Kansas Supreme Court has found that KORA's registration requirements do not
violate the constitutional requirement of a right to a jury trial. See State v. Huey, 306 Kan.
1005, Syl. ⁋ 2, 399 P.3d 211 (2017) ("Because the legislature intended KORA to be a
regulatory scheme that is civil and nonpunitive, only the clearest proof will suffice to
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override legislative intent and transform what has been denominated a civil remedy into a
criminal penalty."). Borst merely argues that Huey was wrongly decided, and this court
should upend that precedent and entertain her unpreserved claims.
Borst alleges that KORA unconstitutionally violates her due process rights
because it does not identify the burden of proof required or provide a mechanism for
defendants to contest a discretionary finding. Borst failed to make this claim to the
district court. Borst also acknowledges that a panel of this court previously addressed a
similar case and held contrary to her argument. See State v. Ford, No. 119,328, 2019 WL
3242420, at *4-6 (Kan. App. 2019) (unpublished opinion). Borst argues the panel erred in
Ford and this court should review her unpreserved claim to find the same.
Borst alleges that the district court violated her rights under the Sixth and
Fourteenth Amendments to the United States Constitution and section 5 of the Kansas
Constitution Bill of Rights when it determined her criminal history score pursuant to the
KSGA. Borst did not assert these claims to the district court. Once again, Borst
acknowledges that more than one panel of this court has found that the KSGA criminal
history calculation procedure does not violate section 5 of the Kansas Constitution Bill of
Rights. See State v. Albano, 58 Kan. App. 2d 117, 129-30, 464 P.3d 332 (2020), aff'd 313
Kan. 638, 487 P.3d 750 (2021); State v. Valentine, No. 119,164, 2019 WL 2306626, at *6
(Kan. App. 2019) (unpublished opinion). Additionally, Borst failed to mention that the
Kansas Supreme Court affirmed Albano and found: "Section 5 of the Kansas
Constitution Bill of Rights does not guarantee defendants the right to have a jury
determine the existence of sentence-enhancing prior convictions under the [KSGA]."
Albano, 313 Kan. 638, Syl. ¶ 4.
Borst does acknowledge that the Kansas Supreme Court has held that the KSGA
does not violate the Sixth and Fourteenth Amendments to the United States Constitution.
See State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 (2002). Borst does not expect this
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court to overrule Ivory, but merely asserts these United States constitutional violations to
preserve the issue for further appeal.
III. Appellate Review of Unpreserved Claims is Prudential
Assuming Borst is correct, and her claims all fit within the exceptions permitting
review of unpreserved claims—this court is not obligated to do so. See Gray, 311 Kan. at
170. Borst failed to assert any of these claims to the district court and allow it to engage
in any necessary fact-finding. Borst could have asserted her right to a jury trial, and even
if she wanted to avoid a jury trial—she could have contested the State's evidence at her
plea hearing regarding her use of a deadly weapon, objected to the district court's
determination at the hearing or sentencing, or objected to its right to impose KORA
requirements or evaluate her prior convictions for sentencing purposes. Borst's failure
deprived the district court of its ability to evaluate her claims.
Borst also appears well aware of the existing precedent related to her claims.
Appellate review of unpreserved claims is prudential, not mandatory. This court declines
to extend any exception to Borst and will not review her unpreserved claims.
CONCLUSION
Borst failed to preserve her claims for review and the district court's decision is
affirmed.
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