State v. Arnold

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NOT DESIGNATED FOR PUBLICATION

No. 112,461

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHAD ARNOLD,
Appellant.


MEMORANDUM OPINION

Appeal from Rice District Court; MIKE KEELEY, judge. Opinion filed November 20, 2015.
Affirmed.

Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.

Amanda G. Voth, assistant solicitor general, for appellee.

Before POWELL, P.J., PIERRON and LEBEN, JJ.

Per Curiam: After entering a plea to aggravated battery and two counts of child
abuse, Chad Arnold now appeals his sentence, arguing the district court's finding that his
crimes were sexually motivated, which then triggered Arnold's duty to register as a sex
offender, violated his constitutional rights pursuant to Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Apprendi requires any fact that increases
the penalty for a crime beyond the statutory maximum to be proven to a jury beyond a
reasonable doubt. Because offender registration is not a penalty that increases a
defendant's sentence, we find no Apprendi violation and affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

On September 24, 2013, Arnold entered a plea pursuant to North Carolina v.
Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to one count of
aggravated battery and two counts of abuse of a child. The State proffered evidence based
on the affidavit of probable cause and the transcript of the preliminary hearing. At the
preliminary hearing, the court heard testimony that M.J., Arnold's step-daughter, reported
that Arnold rubbed and penetrated her vagina with his hands on multiple occasions
throughout M.J.'s fifth-, sixth-, and seventh-grade years. These allegations against Arnold
were in addition to various instances of alleged physical abuse of M.J. and other members
of Arnold's family.

At the plea hearing, the prosecutor addressed the issue of sex offender registration,
stating:

"[I]t is contemplated by this [plea] negotiation that the parties will litigate at an
evidentiary sentencing whether or not these offenses were sexually motivated for a Court
determination beyond a reasonable doubt.
"So I think it is contemplated by the parties that the defendant is waiving a jury
trial determination as to whether or not sexual motivation has been determined beyond a
reasonable doubt and proceed to Court trial on that issue alone."

The defense attorney, after conferring with Arnold, stated, "[Arnold's] understanding was
there would—it would be to the Court, as opposed to a jury."

At the sentencing hearing, the district court made a finding that based upon the
proffered evidence, the evidence at the preliminary hearing, and the information in the
affidavit, Arnold's acts were sexually motivated. As a result of its finding, the district
court required Arnold to register as a sex offender for 15 years. Finally, the district court
sentenced Arnold to a controlling term of 137 months' incarceration.
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Arnold timely appeals.

DID THE DISTRICT COURT ERR BY FINDING
ARNOLD'S CRIMES WERE SEXUALLY MOTIVATED?

Arnold argues the district court violated his constitutional rights pursuant to
Apprendi when it made a finding that his crimes were sexually motivated, thus triggering
an obligation to register according to the Kansas Offender Registration Act (KORA),
K.S.A. 22-4901 et seq. He contends that offender registration constitutes an increase in
punishment and, therefore, a jury should have decided whether his crimes were sexually
motivated. A constitutional challenge to KORA is a question of law subject to our
unlimited review. State v. Chambers, 36 Kan. App. 2d 228, 232, 138 P.3d 405, rev.
denied 282 Kan. 792 (2006).

At the outset, we note the State concedes that Arnold may bring this appeal despite
failing to raise this issue before the district court because our Supreme Court has held that
Apprendi arguments may be raised for the first time on appeal. See State v. Gould, 271
Kan. 394, 404-05, 23 P.3d 801 (2001). We also decline to address the State's argument
that Arnold waived his right to a jury trial because, as we explain below, even if Arnold
had not waived his jury trial rights, his Apprendi rights were not violated.

In Apprendi, the United States Supreme Court held: "Other than the fact 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. In applying Apprendi, our Supreme Court stated: "[I]t does not matter how the
required finding is labeled, but whether it exposes the defendant to a greater punishment
than that authorized by the jury's verdict." (Emphasis added.) Gould, 271 Kan. at 410.
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Thus, Arnold's appeal turns on whether sex offender registration is a punishment under
Apprendi.

Kansas courts have consistently ruled that offender registration does not constitute
a more severe sentence. In Chambers, 36 Kan. App. 2d at 239, our court decided this
question under similar circumstances:

"We conclude that the punitive aspects inherent in the KORA do not implicate
Apprendi's essential focus—prohibiting a sentencing judge from imposing 'a more severe
sentence than the maximum sentence authorized by the facts found by the jury.' Gould,
271 Kan. 394, Syl. ¶¶ 2, 4. This determination results because our Supreme Court
consistently has applied Apprendi's constitutional guarantees in cases involving increased
sentences (Gould and [State v.] Anthony[, 273 Kan. 726, 45 P.3d 852 (2002]), while
declining to apply those same guarantees where the court found that the subject matter
did not relate to a sentencing judge's imposition of a more severe sentence than the
maximum sentence entitled by the jury's verdict (Carr, [274 Kan. at 444, State v.]
Garcia, [274 Kan. 708, 711, 56 P.3d 797 (2002),] and [State v.] Beasley[, 274 Kan. 718,
722, 56 P.3d 803 (2002)]).

"We uphold the constitutionality of the KORA. Apprendi does not apply to a
sentencing judge's finding beyond a reasonable doubt that an offense was sexually
motivated which results in imposition of the provisions of the KORA, K.S.A. 2005 Supp.
22-4901 et seq.

"We hold the 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."

Arnold counters by asserting that Chambers was wrongly decided because it
incorrectly interpreted Apprendi by holding that its protections should be applied only in
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cases of increased sentences as opposed to increased punishments. Specifically, Arnold
argues that Chambers failed to consider the stigmatization that follows sex offender
registration and that Apprendi's procedural protections are therefore required to reduce
the risk of erroneously imposing such a deprivation. Arnold also relies upon Southern
Union Co. v. United States, 567 U.S. ___, 132 S. Ct. 2344, 2357, 183 L. Ed. 2d 318
(2012), where the United States Supreme Court concluded that "the rule of Apprendi
applies to the imposition of criminal fines." Arnold reasons that because registering as a
sex offender is objectively worse than being fined, Apprendi must apply under the
circumstances in this case. However, our court previously rejected the assertion that
registration constitutes punishment in State v. Unrein, 47 Kan. App. 2d 366, 371, 274
P.3d 691 (2012), rev. denied 297 Kan. 1256 (2013).

The panel in Unrein relied upon the reasoning of the United States Supreme Court
in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003):

"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)." 47 Kan. App. 2d at 371.

Smith's rationale is persuasive. Sex offender registration, although stigmatizing, is
not a punishment because its purpose is to inform the public for its own safety. Thus,
Arnold is not entitled to Apprendi's protections in this instance.

Affirmed.