State v. Stuart ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,455
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TAYLOR P. STUART,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed March 5, 2021.
Affirmed.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Thomas R. Stanton, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., GARDNER, J., and BURGESS, S.J.
PER CURIAM: Taylor P. Stuart appeals the Reno County District Court's order
requiring Stuart to register as a violent offender under the Kansas Offender Registration
Act (KORA). Stuart contends the district court failed to make an adequate finding on the
record that he committed aggravated battery with a deadly weapon. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The nature of the issues presented on appeal do not require this court to recite the
facts underlying Stuart's conviction in painstaking detail. During the early morning hours
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of March 27, 2018, Stuart stabbed Daniel Gerard Rivera II nine times in the head and
neck.
Based on the circumstances surrounding the stabbing, the State originally charged
Stuart with attempted intentional second-degree murder of Rivera. An aggravated assault
charge relating to the same incident was later dismissed.
The parties negotiated a plea agreement. Stuart agreed to enter a guilty or no-
contest plea to an amended charge of aggravated battery. In exchange, the parties would
jointly recommend a prison term of 72 months. This sentencing recommendation
reflected the belief that Stuart possessed a criminal history score of B. The district court
accepted Stuart's no-contest plea based on the State's recitation of facts that closely
resembled Rivera's preliminary examination testimony. The district court made no
findings regarding Stuart's use of a deadly weapon for purposes of KORA at the plea
hearing.
On January 3, 2020, the district court sentenced Stuart. The parties concurred with
the presentence investigation report's finding that Stuart possessed a criminal history
score of D. In presenting its sentencing recommendations, the State sought a judicial
determination requiring Stuart to register as a violent offender under KORA. The district
court ordered Stuart to serve 66 months in prison, which was a presumptive sentence
within the applicable grid box. The court ordered Stuart to pay $6,346.20 in restitution
and $193 in court costs but waived all other costs and fees.
At the end of the hearing, the district court asked the parties if the court needed to
consider anything else. The State questioned whether Stuart had been advised about
registering under KORA at a different hearing. The court replied, "I'm not sure if that was
done or not. But since he's in custody the sheriff will see that it's done." The district court
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later filed its journal entry of sentencing, requiring Stuart to register as a violent offender
because of his use of a deadly weapon in the commission of the aggravated battery.
Stuart has timely appealed from sentencing.
ANALYSIS
The district court did not fail to make an adequate finding that Stuart used a deadly
weapon in the commission of aggravated battery.
On appeal, Stuart challenges the district court's order requiring him to register
under KORA as a violent offender on two grounds. First, he contends the district court
failed to make adequate findings that he used a deadly weapon. Second, he argues that
KORA is punitive and warrants procedural protections available to criminal proceedings.
K.S.A. 2020 Supp. 22-4904(a)(1)(A) requires the district court to "[i]nform an
offender, on the record, of the procedure to register and the requirements of" K.S.A. 2020
Supp. 22-4905 "[a]t the time of conviction or adjudication for an offense requiring
registration as provided in K.S.A. 22-4902, and amendments thereto." If a district court
fails to comply with the notification requirements, the defendant need not register; an
appellate court will not remand the case for the district court to correct the omission of
requisite findings. See State v. Thomas, 307 Kan. 733, 749-50, 415 P.3d 430 (2018)
(refusing to remand a case for KORA findings after the district court lost jurisdiction on
direct appeal).
As K.S.A. 2020 Supp. 22-4904(a)(1)(A) has been interpreted by the Kansas
Supreme Court, however, the notice requirement is limited to "informing a defendant of
the fact of his duty to register." State v. Juarez, 312 Kan. 22, 25, 470 P.3d 1271(2020);
see also State v. Marinelli, 307 Kan. 768, 790-91, 415 P.3d 405 (2018) (no consequence
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for district court's failure to inform defendant of KORA obligations at the statutorily
appropriate time).
A criminal defendant comes under the auspices of KORA if one or more of three
statutorily defined conditions are satisfied: (1) The conviction of certain enumerated
convictions classifies the defendant as an offender; (2) the existence of a conviction plus
a judicial finding authorized by statute classifies the defendant as an offender; and (3) the
court exercises its discretion to issue an order determining the defendant to be an
offender. Thomas, 307 Kan. at 748-49; Marinelli, 307 Kan. at 783-85.
The district court ordered Stuart to register as a violent offender because he had
been convicted of a person felony and had used a deadly weapon in the commission of
the offense. See K.S.A. 2020 Supp. 22-4902(e)(2). The district court did not order
registration at the plea hearing or at the sentencing hearing. The only reference to the
conviction of a person felony and the use of a deadly weapon appeared in the journal
entry of sentencing.
The State contends that the district court's ambiguous statement at the close of the
hearing—"since [Stuart is] in custody the sheriff will see that it's done"—constitutes a
finding that Stuart was required to register. Even if the court accepts this dubious
proposition, the district court's finding requiring Stuart to register under KORA is
insufficient to comply with K.S.A. 2020 Supp. 22-4902(e)(2) because the findings do not
specifically address Stuart's use of a deadly weapon. If the district court's order requiring
registration is to be upheld, the findings made in the journal entry are the only possible
basis to satisfy the requirements of the statute. Stuart contends that this court should not
consider those findings because they do not reflect what occurred at the sentencing
hearing.
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Under similar facts, the Kansas Supreme Court recently held that findings in a
written journal entry sufficiently comply with the notice and fact-finding requirements of
KORA. State v. Carter, 311 Kan. 206, 211, 459 P.3d 186 (2020) ("In the absence of any
other argument from Carter to the contrary, we hold that the journal entry included in the
record of this case shows the district judge made the necessary finding under K.S.A. 2019
Supp. 22-4902[e][2]."). In reaching this conclusion, the Kansas Supreme Court
specifically rejected the argument that discrepancies between the sentencing hearing
transcript and the sentencing journal entry must be resolved based on the transcript
because KORA determinations are not part of the criminal sentence. See Carter, 311
Kan. at 210 ("Although Carter might have asserted that a sentence pronounced from the
bench typically controls over a differing journal entry, see Abasolo v. State, 284 Kan.
299, Syl. ¶ 3, 160 P.3d 471 (2007), that rule is not applicable here because of the majority
holding in Thomas that registration is not part of a defendant's sentence.").
Stuart first argues that this reasoning in Carter is invalid because KORA is
punitive and that its registration requirements should be considered part of criminal
sentencing. Stuart advocates the adoption of the reasoning of the dissenting opinion in
Carter and the reasoning of Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016), which
was immediately overruled by State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127(2016). Stuart nevertheless recognizes that this court cannot overrule the Kansas Supreme
Court. See State v. Vrabel, 301 Kan. 797, 809, 347 P.3d 201 (2015) (Kansas Court of
Appeals bound by Kansas Supreme Court precedent). Given the recency of the Carter
decision, this court has no basis to conclude that the Kansas Supreme Court intends to
depart from this precedent. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014) ("[T]he
Court of Appeals panel was duty bound to follow this court's precedent absent some
indication that this court intended to depart from its prior position.").
As an alternative argument, Stuart seeks to distinguish Carter because the issue he
raises was not fully litigated in that case. In trying to more fully address the argument
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rejected in Carter, Stuart notes that KORA is imposed in criminal proceedings, which are
governed by K.S.A. 2020 Supp. 22-3424(a) ("The judgment shall be rendered and
sentence imposed in open court."). However, the Kansas Supreme Court has held that not
all provisions of a judgment in a criminal proceeding are part of a criminal sentencing
and therefore do not need to be announced in open court. See State v. Phillips, 289 Kan.
28, 29-30, 210 P.3d 93 (2009) (rejecting argument that a district court cannot impose fees
and costs in the journal entry when the imposition of those fees and costs were not
announced in open court at sentencing).
In Phillips, the Kansas Supreme Court recognized an ambiguity in the language of
K.S.A. 2008 Supp. 22-3424(a), but the court declined to resolve the ambiguity in that
case because another statute supported the imposition of fees and costs outside a
proceeding in open court.
"There is ambiguity relating to whether the legislature intended to refer to
'judgment' and 'sentence' as separate concepts or whether the reference is to a single
concept where judgment and sentence are the same. In [State v.] Royse, 252 Kan. [394,]
397, [845 P.2d 44 (1993),] this court stated that '[o]rdinarily, in a legal sense, "sentence"
is synonymous with "judgment" and denotes the action of a court of criminal jurisdiction
formally declaring to the defendant the legal consequences of the guilt to which he has
confessed or of which he has been convicted.' This conclusion is further supported by the
allocution statute, K.S.A. 22-3422 . . . .
....
"This statute has been interpreted to apply to the sentencing proceeding. See, e.g.,
State v. Valladarez, 288 Kan. 671, 206 P.3d 879 (2009). Nevertheless, a different reading
could be given in light of K.S.A. 2008 Supp. 22-3426(a) because it differentiates between
the judgment and the sentence by separating the two terms with a disjunctive and by
placing them separately in a series of items to be recorded in a journal entry, stating in
part: 'When judgment is rendered or sentence of imprisonment is imposed, upon a plea
or verdict of guilty, a record thereof shall be made upon the journal of the court,
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reflecting, if applicable, conviction or other judgment, the sentence if imposed, and the
commitment.'
"We need not resolve this ambiguity, however, because the fees at issue are
costs, and K.S.A. 22-3803 specifically addresses the manner in which costs are to be
assessed . . . ." Phillips, 289 Kan. at 39-40.
The language of K.S.A. 2020 Supp. 22-4902(e)(2)—"the court makes a finding on
the record"—tends to support the notion that the Kansas Legislature intended the court to
make its findings in open court, but that conclusion is not inevitable. See Kansas
Supreme Court Rule 3.02 (2020 Kan. S. Ct. R. 20) (defining the contents of the record on
appeal in a criminal case to include the journal entry of judgment). The ambiguity
inherent in K.S.A. 22-3424(a) recognized in Phillips does not assist Stuart in his attempts
to convince this court that the Kansas Supreme Court would have reached a different
conclusion in Carter if it had been presented with the language of K.S.A. 2020 Supp. 22-
3424(a). Stuart has not successfully distinguished the binding authority of Carter.
Stuart also tries to argue that KORA must be considered part of a criminal
proceeding based on the inclusion of KORA within the Kansas Code of Criminal
Procedure. In City of Shawnee v. Adem, 58 Kan. App. 2d 560, 472 P.3d 123 (2020), rev.
granted 312 Kan. ___ (November 20, 2020), the parties asked this court to decide
whether KORA applied to municipal convictions that otherwise met the definitional
criteria for offender registration under KORA. The defendant contended that KORA did
not apply because K.S.A. 22-2102 provided that the Kansas Code of Criminal Procedure
did not apply to municipal court proceedings unless specifically provided by law. In
rejecting the defendant's argument, this court concluded that the language of the Code of
Criminal Procedure and KORA did not support a conclusion that the Legislature intended
KORA to be a subset of the Code of Criminal Procedure. The court specifically rejected
the notion that KORA was part of the Code of Criminal Procedure merely because the
Revisor of Statutes included KORA in Chapter 22. 58 Kan. App. 2d at 566-67.
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Adem is not precedential authority because the Kansas Supreme Court has granted
review. See Kansas Supreme Court Rule 8.03(k)(2) (2020 Kan. S. Ct. R. 59) ("If a
petition for review is granted, the Court of Appeals decision has no force or effect, and
the mandate will not issue until disposition of the appeal on review."). The reasoning
behind the opinion, however, may be adopted by this court. KORA's inclusion within
Chapter 22 does not necessarily make KORA a criminal statute. Rather, despite its
physical location within the Kansas Statutes Annotated, the Kansas Supreme Court has
repeatedly characterized KORA as a civil regulatory scheme. See Carter, 311 Kan. at
210; State v. Perez-Medina, 310 Kan. 525, 539-40, 448 P.3d 446 (2019); State v. Huey,
306 Kan. 1005, 1009-10, 399 P.3d 211 (2017).
The district court's order requiring Stuart to register as a violent offender under
KORA is affirmed.
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