State v. Gilkes

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 109,259

STATE OF KANSAS,
Appellee,

v.

DONALD GILKES,
Appellant.


SYLLABUS BY THE COURT

1.
When the classification of a defendant as an "offender" under the Kansas Offender
Registration Act (KORA), K.S.A. 22-4901 et seq., requires district court fact-finding, that
fact-finding is itself one of the statutorily defined conditions precedents. Without such
fact-finding, the defendant cannot be an offender under KORA.

2.
The absence of court-made fact-findings contemplated by the Kansas Offender
Registration Act, K.S.A. 22-4901 et seq., is not a sentencing error amenable to the
remedy of a remand. Such an absence is not error at all.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 14,
2014. Appeal from Wyandotte District Court; MICHAEL GROSKO, judge. Opinion filed April 13, 2018.
Judgment of the Court of Appeals affirming the district court is reversed as to the issue subject to our
review. Judgment of the district court is reversed as to the issue subject to our review.




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Samuel D. Schirer, of Kansas Appellate Defender Office, was on the briefs for appellant.

Alan T. Fogleman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Donald Gilkes challenges his obligation to register as an offender under
the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., following his
jury conviction for aggravated assault. The issues are whether the district court made a
finding on the record that Gilkes used a deadly weapon in the commission of the offense;
and, if the court did make that finding, whether it abused its discretion because it
incorrectly believed it was required to do so. See K.S.A. 2017 Supp. 22-4902(e)(2).

We hold that the record reflects the district court did not make the required deadly
weapon finding. The court's order for Gilkes to register as a violent offender is vacated.
See State v. Thomas, 307 Kan. 733, __ P.3d __ (No. 109,951, this day decided).

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Gilkes with two counts of aggravated assault, alleging he
knowingly placed two individuals "in reasonable apprehension of immediate bodily
harm, committed with a deadly weapon, to wit: a Lock-Blade Knife." A jury convicted
him of one count and acquitted him of the other. Consistent with the charging document,
the instructions required the jury to find Gilkes used a deadly weapon to convict him of
either count.

At the sentencing hearing, the court noted the jury found Gilkes guilty of one
aggravated assault charge. It heard arguments on a motion for new trial, in which Gilkes
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argued the evidence did not support the verdict because he was voluntarily intoxicated,
preventing him from forming the requisite intent. The court denied the motion, noting it
did not "find anything about that jury conclusion so out of line with the evidence that
their conclusion should be set aside."

The State asked the court to impose the aggravated grid-box sentence because
there were two victims and Gilkes "took no responsibility for this crime . . . and the use
of a deadly weapon." Gilkes requested the middle grid-box sentence. His counsel added,
"The fact that there was a weapon used is included in the fact that it was aggravated
assault instead of misdemeanor assault."

Before pronouncing sentence, the court told Gilkes, "And also this offense, once
you get up to the Secretary of Corrections, does require what's called registration." The
court then sentenced Gilkes to the middle grid-block sentence of 29 months'
imprisonment. It noted, "The jury determined that there were not two victims in this case.
. . . And I'm going to go along with what the jury determined in this matter."

Notably, the record reflects a 2011 Kansas Sentencing Guidelines Journal Entry of
Judgment. In its "Current Conviction Information" section, the court marked "no" next to
the item reading: "Did offender, as determined by the court, commit the current crime
with a deadly weapon?" And in the "Miscellaneous Provisions" subsection of the "Recap
of Sentence" section, the court did not indicate it had "informed [defendant] of duty to
register as an offender pursuant to [KORA], 2011 H Sub for SB 37." It also did not attach
a completed "Offender Registration Supplement" to the journal entry. That document
typically identifies the reason for which registration is required and the duration of that
obligation. See 2017 Kansas Sentencing Guidelines Desk Reference Manual, App. B, p.
15, Journal Entry of Judgment Instructions and Forms.

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Gilkes timely appealed "all and any adverse decisions by the Court made during
the proceedings conducted in the above captioned matter." His brief asserted trial errors
arising from the jury instructions and two challenges to his offender registration
requirement. As to registration, Gilkes first argued the requirement was an illegal
sentence because the "district court did not comply with K.S.A. 22-4902" by "making a
factual finding on the record that [he] used a deadly weapon in the commission of a
person felony." Second, he argued the court "erred by ordering KORA registration with
the misunderstanding that it was compelled to do so." Gilkes raised both KORA
challenges for the first time on appeal.

A Court of Appeals panel affirmed his conviction and sentence. But it remanded
the case with directions to correct the journal entry to reflect the missing registration
requirement. State v. Gilkes, No, 109,259, 2014 WL 642091, at *5 (Kan. App. 2014); see
also K.S.A. 2017 Supp. 22-3504(2) ("Clerical mistakes in judgments, orders or other
parts of the record . . . may be corrected by the court at any time.").

Gilkes petitioned for review. We granted review only for the KORA claims.
Jurisdiction is proper. See K.S.A. 20-3018(b) (petition for review of Court of Appeals
decision); see also State v. Marinelli, 307 Kan. 768, 788, __ P.3d __ (No. 111,227, this
day decided).

GILKES IS NOT A "VIOLENT OFFENDER" UNDER KORA

A preliminary matter concerns discussion by the parties and panel about whether
the registration requirement is an "illegal sentence." In Marinelli, we held KORA is not
part of a defendant's criminal sentence. 307 Kan. at 790-91. Therefore, the question is not
whether the district court imposed an illegal sentence, but whether Gilkes is a "violent
offender" who must register under KORA. See K.S.A. 2017 Supp. 22-4902(e)(2).
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Standard of Review

Whether Gilkes is an "offender" within the meaning of KORA turns on the
interpretation of K.S.A. 2017 Supp. 22-4902(e)(2), which is a question of law subject to
de novo review. Marinelli, 307 Kan. at 788.

Discussion

Individuals defined by KORA as "violent offender[s]" must register as provided in
the Act. See K.S.A. 2017 Supp. 22-4902(a) (defining "offender" to include "violent
offender"); K.S.A. 2017 Supp. 22-4906 (setting duration of registration requirement for
"offender[s]"). "'Violent offender' includes any person who . . . on or after July 1, 2006, is
convicted of any person felony and the court makes a finding on the record that a deadly
weapon was used in the commission of such person felony." (Emphasis added.) K.S.A.
2017 Supp. 22-4902(e)(2).

By KORA's plain language, Gilkes must meet the definition to be subject to
KORA's registration requirements as a violent offender. See K.S.A. 2017 Supp. 22-
4902(a)(2) ("As used in [KORA] . . . '[o]ffender' means . . . a violent offender."); K.S.A.
2017 Supp. 22-4906(a)(1)(N). In Gilkes' case, the record reflects the jury made the
deadly weapon finding. And even though use of a deadly weapon was an element of the
offense for the crime of conviction, the district court did not make the finding on the
record that Gilkes used a deadly weapon to commit the offense, as KORA plainly
specifies. K.S.A. 2017 Supp. 22-4902(e)(2).

In Marinelli, we held the district court made the requisite finding to support its
registration order when it was reflected in the Journal Entry of Judgment. Marinelli, 307
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Kan. at 788-89. Gilkes' case is different because the journal entry is silent about this and
the court made no other explicit finding anywhere else in the record at any other time. In
other words, there is no record the court made a finding that Gilkes used a deadly weapon
in committing his crime of conviction.

We hold Gilkes is not an "offender" as defined by K.S.A. 2017 Supp. 22-
4902(e)(2). See Thomas, 307 Kan. at 749 ("[W]hen the classification of a defendant as an
'offender' requires district court fact finding . . ., that fact-finding is itself one of the
statutorily defined conditions precedent. Without such a fact-finding, the defendant
cannot be an offender under KORA, and the obligation to register never springs into
existence.").

We further hold the Court of Appeals panel was without authority to remand the
case to the district court to make the required on-the-record finding. See Thomas, 307
Kan. at 750 ("[T]he absence of a court-made finding on the record that Thomas used a
deadly weapon cannot be a sentencing error amenable to the remedy of a remand. Such
an absence is not error at all . . . .").

This disposition renders Gilkes' additional KORA-related issue moot.

STEGALL, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1

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1 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 109,259
vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20-2616.
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ROSEN, J., concurring and dissenting: I concur in the result only. I disagree with
the majority's determination that registration is not a part of the criminal sentence and the
resulting constitutional infirmities. Further, I agree with the reasons set forth in Justice
Johnson's separate concurring opinion in State v. Thomas that addresses my additional
concerns with the majority's rationale in this matter. See State v. Marinelli, 307 Kan. 768,
791-96, __ P.3d __ (No. 111,227, this day decided), (Rosen, J., concurring); State v.
Thomas, 307 Kan. 733, 751-52, __ P.3d __ (No. 109,951, this day decided), (Rosen, J.,
concurring and dissenting); Thomas, 307 Kan. at 752-60, (Johnson, J., concurring).

BEIER and JOHNSON, JJ., join in the foregoing concurrence and dissent.