State v. Deist

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No. 102,960

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

THARIN DEIST,
Appellant.

SYLLABUS BY THE COURT

The Kansas Offenders Registration Act is analyzed and applied.

Appeal from Reno District Court, JOSEPH L. MCCARVILLE III, judge. Opinion filed October 1,
2010. Affirmed.

Michelle Davis, of Kansas Appellate Defender Office, for appellant.

Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and
Steve Six, attorney general, for appellee.

Before MALONE, P.J., PIERRON, J., and BUKATY, S.J.

PIERRON, J.: Tharin Deist appeals the district court's determination of his criminal
history score following his conviction of failure to register as a sex offender in violation
of K.S.A. 22-4903. Deist contends that his prior conviction for aggravated indecent
liberties with a child must be excluded from his criminal history because it was an
element of his current conviction for failure to register as a sex offender. We affirm.

Deist pled no contest to one count of failure to register as a sex offender, a level 5
felony pursuant to K.S.A. 22-4903. The State originally charged Deist with three counts
of failure to register as a sex offender, but dismissed the remaining two counts in
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exchange for Deist's plea of no contest to Count 1 as alleged in the complaint. Count 1 in
the complaint alleged that Deist was required to register as a sex or violent offender after
being convicted of aggravated indecent liberties with a child in Reno County case No.
97CR596 and that he intentionally failed to give written notice of his change of
residence.

The presentence investigation (PSI) report classified Deist's criminal history score
as B. The PSI report indicated that he had been convicted previously of two counts of
aggravated indecent liberties with a child on October 6, 1997 in case No. 97CR596.
Those two previous convictions/counts were listed as entries 1 and 2 on Deist's criminal
history worksheet. Entry 1 on the criminal history worksheet was unscored and not used
in calculating Deist's criminal history score. Entry 2, however, was used in calculating
Deist's criminal history score.

At sentencing, Deist objected to entry 2 on the criminal history worksheet. He
contended that entry 1 was presumably not scored because it was an element of the
current offense. He argued that entry 2 on the criminal history worksheet—the second
conviction of aggravated indecent liberties with a child—also could not be used in
calculating his criminal history because it too was an element of the current offense. The
district court overruled Deist's objection, finding that entries 1 and 2 on the criminal
history worksheet were each counted separately and that only one of the counts was an
element of the current offense.

The district court sentenced Deist to a prison term of 120 months. However, the
court dispositionally departed from the presumptive prison sentence and sentenced Deist
to community corrections for a period of 36 months.

Deist contends the district court erred in excluding only one of his aggravated
indecent liberties convictions from his criminal history. He argues that because both
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convictions required him to register as a sex offender, both are necessarily elements of
the current offense and should be excluded from his criminal history score.

Under the sentencing guidelines, "all convictions, whether sentenced
consecutively or concurrently, shall be counted separately." K.S.A. 21-4710(c). The
sentencing guidelines also specifically provide that all prior convictions are to be
considered in a defendant's criminal history score unless otherwise excluded. One
statutory exception prohibits including prior convictions of any crime if the prior
convictions "enhance the severity level or applicable penalties, elevate the classification
from misdemeanor to felony, or are elements of the present crime of conviction." K.S.A.
21-4710(d)(11). (Emphasis added.)

Here, the precise issue is whether both prior convictions of aggravated indecent
liberties are elements of Deist's current conviction of failing to register. Resolution of this
issue calls for interpretation of the sentencing statutes and is subject to unlimited review.
As a general rule, a criminal statute should be strictly construed in favor of the accused,
meaning the court must construe any ambiguity in the statute's language in favor of the
accused. This rule of strict construction, however, is subordinate to the rule that judicial
interpretation must be reasonable and sensible to effect legislative design and intent. State
v. Gracey, 288 Kan. 252, 257-58, 200 P.3d 1275 (2009). Under the fundamental rule of
statutory construction, the intent of the legislature governs when that intent can be
ascertained from the statute. When a statute is plain and unambiguous, we must give
effect to the intention of the legislature, rather than determine what the law should or
should not be. State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995).

Deist relies on State v. Pottoroff, 32 Kan. App. 2d 1161, 96 P.3d 280 (2004), in
support of his argument that both convictions should be excluded from his criminal
history. In Pottoroff, the defendant pled no contest to one count of failure to register. The
presentence investigation (PSI) report indicated that the defendant had been convicted
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previously of one count of attempted aggravated indecent liberties with a child. The issue
before the court was whether the conviction for aggravated indecent liberties was an
element of failure to register. After a thorough analysis of the sentencing guidelines, this
court held that the conviction that creates the need for registration as a sex offender under
the statutory sentencing scheme is necessarily an element of the offense of failure to
register cannot be counted in determining criminal history score. 32 Kan. App. 2d at
1164-65.

The Pottoroff court reasoned that under the statutory scheme a defendant is not an
"offender" and has no duty to register unless he or she has been convicted of or has been
adjudicated a juvenile offender for committing one of the offenses listed in K.S.A. 22-
4902(a). Under 22-4902(b) and (c), an "offender" includes a person who is convicted of
aggravated indecent liberties with a child. Because the defendant's conviction of
aggravated indecent liberties created the defendant's duty to register, it was an element of
the offense and could not be counted in his criminal history. 32 Kan. App. at 1166-67.

Deist argues that both convictions of aggravated indecent liberties created a duty
to register and so he was guilty of failing to register as a result of each of those counts.
He contends that, under Pottoroff, both should be excluded from his criminal history.
Pottoroff offers little assistance on this particular issue. In Pottoroff, the defendant was
required to register as a result of only one count of aggravated indecent liberties. Here,
Deist had been convicted previously of two counts of aggravated indecent liberties in one
case. Because the defendant in Pottoroff pled no contest to only one count of aggravated
indecent liberties, Pottoroff does not answer the question of whether when two
convictions each require a defendant to register, they are both elements of the failure to
register offense.

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The State suggests that because only one of the convictions was necessary to
create Deist's need to register, the remaining conviction can be used in Deist's criminal
history. We agree.

The State cites State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997), in support of
its argument. In Taylor, our Supreme Court held that prior convictions used as an element
of the present offense cannot be counted when calculating criminal history, but all other
convictions can be used unless prohibited by statute. 262 Kan. at 479. Taylor also offers
little guidance. In Taylor, the State specifically alleged that the defendant escaped from
custody while being held for his conviction in case No. 95CR1353. Only one count was
charged in that case. 262 Kan. at 472-73. Here, as discussed above, Deist had been
convicted previously of two counts of aggravated indecent liberties within the same
complaint.

The State relies heavily on State v. Armstrong, 29 Kan. App. 2d 822, 33 P.3d 246,
rev. denied 272 Kan. 1420 (2001). In Armstrong, the defendant entered pleas of no
contest to two counts of attempted aggravated indecent liberties with a minor. The PSI
report reflected that the defendant had seven prior convictions for statutory rape. The
State argued that two of the defendant's prior convictions could be used to classify the
defendant as a persistent sex offender under K.S.A. 2000 Supp. 21-4704(j) and the
remaining five convictions should be included in his criminal history. The defendant
objected, arguing his prior convictions were being used to enhance his sentence as a
persistent sex offender and therefore could not also be included in his criminal history
score. The district court overruled the objection and used the remaining five convictions
in calculating the defendant's criminal history score. 29 Kan. App. 2d at 822-23.

The issue on appeal was whether the district court was barred under K.S.A. 2000
Supp. 21-4704(j) and K.S.A. 21-4710(d)(11) from including any of the defendant's prior
sex crimes in his criminal history because he was found to be a persistent sex offender.
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29 Kan. App. 2d at 823-24. Applying the rationale from Taylor, the Armstrong court
affirmed the district court's determination to use the remaining five prior convictions in
calculating the defendant's criminal history. 29 Kan. App. 2d at 825.

Quoting K.S.A. 2000 Supp. 21-4704(j), the Armstrong court determined that a
defendant may be sentenced as a persistent sex offender if he or she "'has at least one
conviction for a sexually violent crime.'" 29 Kan. App. 2d at 825. The court reasoned that
"[b]y the plain terms of the statute, only one prior conviction of a sexually violent crime
is necessary to support an enhanced sentence as a persistent sex offender." 29 Kan. App.
2d at 825. Reading 2000 Supp. K.S.A. 21-4704(j) in conjunction with K.S.A. 21-4710(c)
and (d)(11), the court concluded that the district court is required to include in the
criminal history any other convictions beyond that necessary to trigger the persistent sex
offender enhancement. 29 Kan. App. 2d at 825.

The court held that where a defendant has multiple prior convictions for sexually
motivated crimes, one conviction can be used to classify the defendant as a persistent sex
offender and the other convictions can be applied to the defendant's criminal history
score. 29 Kan. App. 2d at 825. Therefore, the five remaining convictions were not used to
enhance the severity level or applicable penalties and so were not excluded from the
defendant's criminal history score under K.S.A. 21-4710(d)(11). 29 Kan. App. 2d at 825.

Under the Kansas Offender Registration Act (KORA), an offender is required to
inform law enforcement of a change of address within 10 days. K.S.A. 22-4904(b).
KORA defines "offender" as any person who is convicted of any sexually violent crime
listed in subsection (c) of the statute. K.S.A. 2008 Supp. 22-4902(b). (Emphasis added.)
Aggravated indecent liberties with a child is considered a "sexually violent crime" under
the statute. K.S.A. 2008 Supp. 22-4902(c)(3). Under the plain language of the statute,
only one prior conviction of a sexually violent crime is necessary to categorize a
defendant as an offender under KORA and trigger the registration requirement. Both of
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Deist's convictions of aggravated indecent liberties do not need to be counted together in
order for Deist to be considered an offender. One of Deist's convictions was sufficient to
create his duty to register under KORA.

In State v. Carrell, No. 91,801, unpublished Court of Appeals opinion filed Feb.
18, 2005, the defendant pled guilty to aggravated escape from custody. The complaint
alleged that at the time of escape, the defendant had been placed in custody after being
found guilty of two counts of unlawful sexual relations. The defendant argued that
because the two prior felony cases were in a single case, both prior offenses became an
element in the escape case. The Carrell court disagreed and determined, based on the
aggravated escape from custody statute, that at least one crime for which an alleged
escapee was convicted or charged must serve as an element of aggravated escape. The
court concluded that because one prior conviction was used as an element of the current
offense, the second prior conviction was available for calculating the defendant's criminal
history. Slip op. at 3.

In conclusion, KORA only requires one prior conviction of a sexually violent
crime in order to classify a defendant as an offender and impose the registration
requirement. K.S.A. 2008 Supp. 22-4902(b). Because KORA requires only one
conviction of a sexually violent crime to create a duty to register, it follows that Deist can
be guilty for failing to register based on only one prior conviction of a sexually violent
crime. Accordingly, only one of Deist convictions of aggravated indecent liberties is an
element of failing to register, and his other conviction is available for calculating criminal
history. Therefore, the district court correctly determined Deist's criminal history.

Affirmed.