State v. Unrein

1

No. 104,824

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PATRICK W. T. UNREIN,
Appellant.


SYLLABUS BY THE COURT

Under the facts of this case, the district court's factual finding that the defendant
used a deadly weapon in the commission of two attempted aggravated assaults, which
resulted in the court's order for the defendant to register under the Kansas Offender
Registration Act, K.S.A. 2010 Supp. 22-4902(a)(7), did not violate the Sixth and
Fourteenth Amendments to the Constitution of the United States.

Appeal from Sedgwick District Court; CLARK V. OWENS II, judge. Opinion filed April 20, 2012.
Affirmed.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., GREEN and BUSER, JJ.

BUSER, J.: Patrick Unrein appeals an order of the district court requiring him to
register as an "[o]ffender" under the Kansas Offender Registration Act (KORA), K.S.A.
2010 Supp. 22-4902(a)(7), because he used a deadly weapon in the commission of two
attempted aggravated assaults. Unrein contends he entered guilty pleas pursuant to North
2

Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). As a result, he
claims the sentencing court's finding of fact that he used a deadly weapon without
submitting the matter to a jury for determination violated his right to a jury trial as
provided by the Sixth and Fourteenth Amendments to the Constitution of the United
States.

We hold that any stigma which may attach to Unrein because he was required to
register as an offender for his use of a deadly weapon in the commission of two attempted
aggravated assaults is not punishment or an increase in the penalty for his crimes beyond
the prescribed statutory maximum terms of incarceration. Accordingly, the district court's
finding of fact regarding the use of a deadly weapon did not violate Unrein's
constitutional right to a jury trial. We also find no error in the sentencing court's use of
Unrein's prior criminal history without requiring the State to prove it to a jury beyond a
reasonable doubt. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Unrein was charged with two counts of aggravated assault, K.S.A. 21-3410(a), one
count of criminal threat, K.S.A. 21-3419(a)(1), and one count of criminal possession of a
firearm, K.S.A. 21-4204(a)(4)(A). The State alleged that Unrein had committed the
aggravated assaults "with a deadly weapon, to-wit: Stevens Brand .410 gauge single
shotgun." The State cited K.S.A. 21-3410(a) for the aggravated assault charges, which
defined that crime as assault "[w]ith a deadly weapon."

Ultimately, Unrein signed a plea agreement stating he would "enter a plea of
guilty" to two counts of attempted aggravated assault and one count of criminal threat. At
the plea hearing, when the district court asked Unrein for his pleas, Unrein replied: "I
plead guilty to them [sic] three counts." The district court asked: "Are you pleading
guilty because you [are] guilty or are you pleading guilty for some other reason?" Unrein
3

responded: "I'm pleading guilty because I'm taking advantage of a plea agreement
offered to me." After a colloquy between the district court and Unrein about his right to
plead guilty and take advantage of a plea agreement without admitting that he was guilty,
the prosecutor noted: "I'm assuming we're entering an Alford plea at this point." There
was no further mention that the guilty pleas were based on Alford, 400 U.S. 25.

The prosecutor next proffered the facts the State would prove at trial. These facts
included that Unrein "picked up [a] shotgun, put [in] a bullet [sic], cocked the gun, put it
to the back of [one victim's] head," and that when another victim "arrived home . . .
[Unrein] was pointing the shotgun at him." The district court accepted Unrein's guilty
pleas, found there was a factual basis for the pleas, and found him guilty.

In keeping with the plea agreement, the State filed an amended information
charging two counts of attempted aggravated assault, K.S.A. 21-3301 and K.S.A.21-
3410(a), and one count of criminal threat, K.S.A. 21-3419(a)(1). In the amended charging
document, the State alleged Unrein committed the attempted aggravated assaults by
"grabbing the shotgun, with the intention to commit said crime," and by "picking up and
loading the shotgun, with the intention to commit said crime."

At the sentencing hearing, Unrein's counsel asked the district court not to impose
KORA's registration requirement, claiming the intention of the State and defense was that
Unrein would not have to register as an offender. The State denied there was any
agreement regarding the registration requirement. The district court found Unrein had
used a deadly weapon in the commission of the two attempted aggravated assaults and
ordered him to register as an offender under K.S.A. 2010 Supp. 22-4902(a)(7).

Later, Unrein filed a motion "to reconsider the finding that a firearm was used
during the commission of this offense." At the hearing on the motion, Unrein asserted the
"intent of the parties when negotiating this case . . . was to not have the firearm be
4

involved in the commission of the offense. And therefore, Mr. Unrein is not having to
register [sic]." The State responded that it was the State's "intention . . . he did have to
register." The State also noted that during the plea hearing "the gun was clearly
mentioned during the giving of the factual basis by the State since it was an Alford plea."

The district court observed that Unrein could move to withdraw his pleas because
of the dispute. Short of that, however, the district court stated that the use of a "deadly
weapon . . . [was] part of the crime," as defined by K.S.A. 21-3410(a). It also noted the
charging documents had alleged use of a deadly weapon. The district court concluded it
lacked "authority to disregard the statute and the facts that are in front of it." Unrein's
motion to reconsider the registration requirement was denied. Unrein filed a timely
appeal.

DID THE DISTRICT COURT'S FINDING THAT UNREIN USED A DEADLY WEAPON WHICH
RESULTED IN AN ORDER TO REGISTER UNDER KORA VIOLATE HIS CONSTITUTIONAL
RIGHT TO A TRIAL BY JURY?

KORA requires district courts to order particular offenders to register with the
state. K.S.A. 2010 Supp. 22-4904. In the present case, Unrein was ordered to register as
an offender upon the sentencing court's finding that he used a deadly weapon in the
commission of the two attempted aggravated assaults.

Unrein does not reprise his argument below that registration as an offender under
KORA was contrary to his plea agreement. Instead, he contends based on Blakely v.
Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi
v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), that the
district court violated his constitutional rights by ordering registration without either
Unrein's admission to the use of a deadly weapon or a jury determination of that fact.
This is a new issue on appeal, but we will consider it because it involves fundamental
rights. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Because the issue
5

presented is a question of law, our review is unlimited. See McComb v. State, 32 Kan.
App. 2d 1037, 1041, 94 P.3d 715, rev. denied 278 Kan. 846 (2004).

Preliminarily, the State does not dispute Unrein's contention that his guilty pleas
were entered pursuant to Alford. Given this concession and the evidence in support of it,
we agree that by pleading guilty, Unrein did not admit to using a deadly weapon in the
commission of the two attempted aggravated assaults. See State v. Case, 289 Kan. 457,
Syl. ¶ 2, 213 P.3d 429 (2009) ("An Alford plea is a plea of guilty to a criminal charge but
without admitting to its commission, i.e., to the truth of the charge and every material fact
therein.").

Unrein's argument on appeal is predicated on Apprendi's holding: "Other than the
facts of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490. According to Unrein, because by his Alford pleas he
did not explicitly admit to the use of a deadly weapon, the district court's finding that
resulted in the imposition of the offender registration requirement impermissibly
increased the penalty without having the finding proven to a jury beyond a reasonable
doubt.

As a result, the issue presented on appeal is: Did the district court violate Unrein's
constitutional right to a jury trial by finding that he used a deadly weapon during the
commission of the offenses without submitting the matter to a jury for determination
before ordering registration pursuant to KORA? Critical to answering this question is
whether KORA's offender registration requirement is an increased penalty under
Apprendi.

Unrein acknowledges the same argument he raises on appeal was "rejected" in a
prior KORA case, State v. Chambers, 36 Kan. App. 2d 228, 239, 138 P.3d 405, rev.
6

denied 282 Kan. 792 (2006). In Chambers, the sentencing court ordered registration
pursuant to KORA after finding that a burglary conviction was sexually motivated. This
finding that the defendant committed a sexually violent crime made the defendant an
offender under a separate subsection of the registration law. See 36 Kan. App. 2d 231-32
(quoting K.S.A. 2005 Supp. 22-4902[c][14]).

Similar to the present case, in Chambers the defendant contended the registration
requirement was an increased punishment that implicated Apprendi's constitutional
protections. Our court, however, held:

"[T]he sentencing judge's finding of sexual motivation in the present case did not increase
the terms of Chambers' underlying prison sentences beyond the maximum sentence
provided for burglary. The sentencing judge's determination of sexual motivation did not,
therefore, implicate Apprendi's guarantee of rights under the Sixth and Fourteenth
Amendments to the Constitution of the United States." 36 Kan. App. 2d at 239.

Unrein contends, however, "[t]he Chambers decision was wrong because it
narrowly interpreted the rule in Apprendi by holding that it should only be applied to
increased sentences, not increased punishment." In fact, Chambers distinguished an
increased sentence (that implicates Apprendi) from increased punishment (that does not
implicate Apprendi) based, in part, on Kansas Supreme Court precedent. See 36 Kan.
App. 2d at 237-39. We are bound to follow this precedent absent an indication our
Supreme Court is departing from its previous position. State v. Jones, 44 Kan. App. 2d
139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). We are unaware of any
indication our Supreme Court is departing from prior precedent in this matter.

Moreover, we are not persuaded by Unrein's argument that registration under
KORA and under these circumstances is necessarily punishment. Unrein alleges there is a
"certain stigma attached" to offender registration. But Unrein does not define, explain, or
quantify the notoriety he alleges results from the simple act of registration. We can only
7

assume Unrein means a general stigma of social disapproval. While we are willing to
consider the issue for the first time on appeal, Unrein still bears the burden to designate a
record affirmatively showing error, which he has not done. See State v. Paul, 285 Kan.
658, 670, 175 P.3d 840 (2008).

If we were to assume a general stigma from KORA registration, we would turn for
guidance to Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), which
was also cited in Chambers. The question in Smith was whether posting sex offender
registration on the Internet was punishment for ex post facto purposes. The United States
Supreme Court held it was not punishment despite the "adverse consequences for the
convicted defendant, running from mild personal embarrassment to social ostracism."
538 U.S. at 99. The Court reasoned the "purpose and principal effect of notification are to
inform the public for its own safety, not to humiliate the offender." 538 U.S. at 99; see
also United States v. Hinckley, 550 F.3d 926, 937-38 (10th Cir. 2008) (applying Smith). If
the stigma attached to public registration as a sex offender is not punishment, the
notoriety that Unrein might experience for being listed as an individual who used a
deadly weapon during the commission of two crimes is also not punishment.

Unrein also mentions that he must perform duties related to registration or face
prosecution under K.S.A. 22-4903, and that he must pay a $20 fee whenever reporting to
a sheriff's office. See K.S.A. 2010 Supp. 22-4904(e). Unrein cites no authority holding
these requirements are punishment, and he provides no reasoning or evidence supporting
that conclusion. This is akin to waiving or abandoning an issue on appeal. See State v.
Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).

If we were to consider these registration requirements, Smith again provides
guidance. The United States Supreme Court noted the "[w]idespread public access"
caused by posting sex offender registration on the Internet was "necessary for the efficacy
of the scheme." 538 U.S. at 99. Based on the record before us, we would similarly
8

conclude that Unrein's exposure to further criminal liability if he would violate KORA is
necessary for the efficacy of the regulatory scheme. The purpose of registration is public
safety, see State v. Cook, 286 Kan. 766, 774, 187 P.3d 1283 (2008), and the threat of
criminal liability is not punishment but a means to this end. We also would conclude the
$20 fee is not punishment but a way to reimburse sheriff's offices for services provided in
the regulatory scheme. See K.S.A. 2010 Supp. 22-4904(e) ("All funds retained by the
sheriff . . . shall be credited to a special fund . . . which shall be used solely for law
enforcement and criminal prosecution . . . and which shall not be used as a source of
revenue to reduce the amount of funding otherwise made available to the sheriff's
office."); State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006) (characterizing
BIDS fees as "recoupment" and "not fines or, indeed, any part of the punishment or
sanction").

For all of these reasons, we hold the district court's factual finding that Unrein
used a deadly weapon in the commission of two attempted aggravated assaults which
resulted in the court's order for Unrein to register under KORA did not violate his
constitutional right to a jury trial.

On a related matter, Unrein also contends the sentencing court's determination of
his criminal history score without submission of the matter to a jury violated his
constitutional right to a jury trial. Unrein acknowledges, however, our Supreme Court's
holding that a district court's determination of a defendant's criminal history score at
sentencing does not violate a defendant's constitutional right to a jury trial. See State v.
Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). Unrein raises this issue only to preserve it
for federal review. Our Supreme Court has declined to "retreat" from Ivory, and we are
again bound by that precedent. See State v. McCaslin, 291 Kan. 697, 731-32, 245 P.3d
1030 (2011).

Affirmed.