State v. Divine

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,907

STATE OF KANSAS,
Appellee,

v.

ANTHONY DIVINE,
Appellant.


SYLLABUS BY THE COURT


1.
The general effect of an expungement order is that the person petitioning for
expungement shall thereafter be treated as not having been arrested, convicted, or
diverted of the crime.

2.
Exceptions to the general effect of an expungement order are specifically set forth
in the expungement statute, K.S.A. 2010 Supp. 21-4619(f). The expungement statute
does not provide an exception which would require disclosure of an expunged conviction
through the Kansas Offender Registration Act.

3.
The duty to register under the Kansas Offender Registration Act is imposed upon
those persons who fit within the definition of an "offender," as set forth in K.S.A. 2010
Supp. 22-4902. If a person's status as an offender under the Kansas Offender Registration
Act is dependent upon a conviction which is subsequently expunged, the effect of the
expungement is to terminate that person's obligation to register as an offender.
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Appeal from Montgomery District Court; FREDERICK WILLIAM CULLINS, judge. Opinion filed
January 28, 2011. Reversed and remanded with directions.

Sara S. Beezley, of Beezley Law Office, of Girard, argued the cause and was on the brief for
appellant.

Ruth Ritthaler, assistant county attorney, argued the cause, and Steve Six, attorney general, was
with her on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Anthony Divine directly appeals from the district court's
determination that he must continue to register as a sex offender despite an expungement
of the conviction for which he was required to register. Finding that the expungement
provisions of K.S.A. 2010 Supp. 21-4619 do not provide for the disclosure of the
expunged offense through sex offender registration, we reverse.

FACTUAL OVERVIEW

In 2003, Divine pled guilty to lewd and lascivious behavior. The district court
convicted Divine and placed him on probation. Thereafter, pursuant to the Kansas
Offender Registration Act (KORA), K.S.A. 22-4901 et seq., Divine was required to
register as a sex offender for 10 years. In addition, the registration requirement was made
a condition of Divine's probation. Ultimately, Divine successfully completed his
probation in 2005. He continued to register as a sex offender.

Some 3 years after completing probation, Divine filed a petition for expungement
of the lewd and lascivious conviction. Apparently, the court did not conduct a formal
hearing on the petition but rather it accepted and executed a journal entry which had been
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approved by the prosecutor and defense counsel. The expungement order was filed
November 26, 2008.

Thereafter, Divine filed a motion to lift the registration requirement, arguing that
the expungement had erased the conviction for which he was required to register. The
State responded that the district court lacked jurisdiction to address the issue because
Divine was statutorily required to register because of the conviction, rather than as a
condition of probation. The district court found that K.S.A. 22-4908 prevented the court
from granting Divine's motion. Divine was ordered to continue registering as a sex
offender until July 8, 2013.

Divine filed a timely notice of appeal to the Court of Appeals. This court
transferred the appeal on its own motion, pursuant to K.S.A. 20-3018(c).

SEX OFFENDER REGISTRATION AFTER EXPUNGEMENT

A. Standard of Review

Resolution of this appeal will require us to interpret the expungement provisions
of K.S.A. 2010 Supp. 21-4619, as well as various provisions of the KORA. The
interpretation of a statute is a question of law over which this court has unlimited review.
State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010); Unruh v. Purina Mills, 289 Kan.
1185, 1193, 221 P.3d 1130 (2009).

B. Analysis

Divine acknowledges that his conviction for lewd and lascivious behavior
triggered the requirement that he register as a sex offender. See K.S.A. 2010 Supp. 22-
4902. Likewise, he does not contest that the initial period of required registration was 10
years from the conviction date. See K.S.A. 2002 Supp. 22-4906. However, Divine argues
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that, after the expungement, he no longer has a conviction which would make him an
offender under the KORA.

Divine focuses on the expungement statute. Specifically, he points to the language
in K.S.A. 2010 Supp. 21-4619(f), which provides that "[a]fter the order of expungement
is entered, the petitioner shall be treated as not having been arrested, convicted or
diverted of the crime." The suggestion is that if he is to be treated as not having been
convicted of lewd and lascivious behavior then he is not an offender required to register
under the KORA definitions. See K.S.A. 2010 Supp. 22-4902(a) (defining the crimes
which make an offender subject to the sex offender registry). A plain reading of the
statute's statement of the general effect of expungement supports that argument.

Divine acknowledges that the expungement directive—that he shall be treated as
not having been convicted—is followed by a list of exceptions describing the
circumstances under which the expunged conviction may be considered or where the
petitioner must disclose that the conviction occurred. Divine correctly points out that the
list does not include an exception for disclosure to the sexual offender registry. He
contends that our decision in State v. Riedel, 242 Kan. 834, 752 P.2d 115 (1988), stands
for the proposition that an expunged conviction may only be used for the very specific
and express purposes listed within the expungement statute.

Divine may be reading too much into the holding in Riedel. That case considered
the specific exception in K.S.A. 1987 Supp. 21-4619(f)(4), which allows disclosure of the
expunged conviction in a subsequent prosecution for an offense which requires as an
element a prior conviction of the type expunged. Riedel simply clarified that the 21-
4619(f)(4) exception does not permit the State to use an expunged conviction for K.S.A.
60-455 prior crimes purposes if a prior conviction is not an element of the crime being
prosecuted. Nevertheless, we agree that we should not read a KORA registration
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exception into K.S.A. 2010 Supp. 21-4619(f) when such an exception is not readily found
in the expungement statute. See State v. Trautloff, 289 Kan. 793, 796-97, 217 P.3d 15
(2009) (appellate court will not read into plain and unambiguous statute something not
readily found in it; criminal statutes strictly construed in favor of accused).

In response, the State focuses on the Offender Registration Act. It specifically
points to the provision in K.S.A. 22-4908, which states: "No person required to register
as an offender pursuant to the Kansas offender registration act shall be granted an order
relieving the offender of further registration under this act." Previously, K.S.A. 2000
Supp. 22-4908(d) had provided a procedure for registrants to seek relief from the
registration requirement through the district court. In a 2001 amendment, the legislature
deleted the relief provision, suggesting a legislative intent to deny a district court the
authority to reduce the 10-year registration period once it had been triggered by the
qualifying conviction. See L. 2001, ch. 208, sec. 15. Accordingly, when the motion to lift
the registration requirement is viewed in isolation, the State is correct in asserting that the
district court did not have the authority, acting alone, to grant Divine relief from the
registration requirement.

However, the question is whether Divine's registration requirement was
extinguished as a matter of law when his conviction was expunged, prior to the filing of
his motion for relief. If so, Divine was not relying on the good graces of the district court
to obtain relief. The district court's declaration of the legal consequences of expungement
would not have been a proscribed "order relieving the offender of further registration
under [KORA]." K.S.A. 22-4908. Relief would have flowed from the expungement
statute, not from a court order.

The State does not rely on an argument challenging the concept that an
expungement of the conviction which invoked KORA effects a termination of the
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registration requirement. Instead, the State collaterally attacks the expungement order
entered in this case. Specifically, the State complains that Divine's expungement petition
did not contain all of the statutorily required information, e.g., the date of conviction; that
Divine failed to give notice to law enforcement; that the court failed to conduct a public
hearing; and that Divine did not raise the registration issue in the expungement
proceedings.

The short answer to the State's expungement order challenge is that the issue is not
properly before this court. The State did not timely appeal the expungement order. See
K.S.A. 60-2103(a) (appeal from judgment effected by filing notice of appeal within 30
days of entry of judgment). Likewise, the State did not file a cross-appeal in this
proceeding. See K.S.A. 60-2103(h) (appellee must file notice of cross-appeal within 20
days after service of appellant's notice of appeal). Additionally, the State participated in
any procedural errors in the district court by agreeing to submit the matter on an
approved journal entry. See Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64
P.3d 357 (2003) (party may not invite error and then complain of that error on appeal);
but cf. In re Tax Appeal of Professional Engineering Consultants, 281 Kan. 633, 639, 134
P.3d 661 (2006) (invited error rule inapplicable where error is jurisdictional). The State's
attempt to circumvent these impediments by characterizing the technical errors as
jurisdictional is unavailing; the district court had jurisdiction to enter the expungement
order even if the alleged errors occurred.

The State's argument that Divine should have raised the registration issue in the
expungement proceeding is contradicted by the structure of the expungement statute.
Pursuant to K.S.A. 2010 Supp. 21-4619(f), the general rule is that an expungement order
results in the petitioner being treated as not having been convicted. The exceptions to that
general rule are specifically set forth in the statute. The legislature could have, but did
not, specify an exception for KORA registration. However, the legislature did provide
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that "the court, in the order of expungement, may specify other circumstances under
which the conviction is to be disclosed." K.S.A. 2010 Supp. 21-4619(f)(3). If the State
wanted Divine to continue to disclose his expunged conviction through the sex offender
registry, it was free to request that additional exception under K.S.A. 2010 Supp. 21-
4619(f)(3). It is counterintuitive to expect a petitioner to request that the court add a
special exception to the general effect of the requested expungement order.

The State attempts to justify its failure to request a special exception by suggesting
that the prosecutor approving the expungement order simply did not realize the general
effect of that order on Divine's registration requirement. That argument does not advance
the State's cause. As the State asserts in its own brief, citing to State v. Anderson, 40 Kan.
App. 2d 69, 71, 188 P.3d 88 (2008), "ignorance of the law is no excuse."

In conclusion, we find that the expungement of Divine's lewd and lascivious
conviction terminated his status as an offender required to register under KORA. The
expungement statute does not provide an exception for the disclosure of the expunged
conviction through KORA registration, and the expungement order in this case did not
make such disclosure a special exception under K.S.A. 2010 Supp. 21-4619(f)(3). The
district court should have found that Divine's registration requirement terminated as a
matter of law, and such an order would not have run afoul of K.S.A. 22-4908.

The district court is reversed. The matter is remanded with directions to the district
court to rescind its order that Divine must register until July 8, 2013, and to enter an order
that Divine's registration requirement has terminated as a matter of law.

Reversed and remanded with directions.

MIKE KEELEY, District Judge, assigned.
1
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1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court by art. 3, § 6(f)
of the Kansas Constitution, Judge Keeley was appointed to hear case No. 102,907 to fill the
vacancy on the court created by the retirement of Chief Justice Robert E. Davis.