State v. Davis

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NOT DESIGNATED FOR PUBLICATION

No. 114,524

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT DAVIS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed June 10, 2016.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h).

Before BUSER, P.J., HILL, J., and WALKER, S.J.

Per Curiam: This is a summary disposition appeal of an order directing Robert
Davis to register as a sex offender. After his conviction for electronic solicitation of a
child, Davis contends the district court's failure to impose the registration requirement at
sentencing and in his presence rendered his sentence illegal and mandated resentencing.
Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Davis and the State entered into a plea agreement in which he pled guilty to one
count of electronic solicitation of a child, a severity level 3 person felony, in violation of
K.S.A. 21-3523(a)(1), (b). When Davis committed this crime, on March 27, 2009, the
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Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., was applicable. The
plea agreement signed by Davis and his attorney acknowledged that Davis was informed
of the requirement that he register as a sex offender. In particular, Paragraph No. 2 (e)
read: "The Defendant is aware that this offense requires him to register as a Sex
Offender." Davis also signed a "Defendant's Acknowledgement of Rights and Entry of
Plea" form, although this document did not mention KORA registration.

At the plea hearing on November 18, 2009, the district court read the terms of the
plea agreement and asked Davis if he understood them. The district court specifically
read aloud Paragraph No. 2 (e) of the agreement in which Davis acknowledged his
understanding that he was required to register as a sex offender because of his conviction
for a sex crime. Following the plea colloquy, a reading of the information, and Davis'
agreement that he understood the terms of the plea agreement, the district court accepted
Davis' guilty plea and found him guilty of electronic solicitation of a child.

On December 23, 2009, the district court sentenced Davis to a presumptive term
of 89 months' imprisonment, followed by 36 months' postrelease supervision. At
sentencing, the district court informed Davis of his "duty to register under the Kansas
Offender Registration Act."

The sentencing journal entry filed after Davis' sentencing did not memorialize that
Davis was subject to the KORA requirements. On May 11, 2010, the district court, at the
State's request, issued a nunc pro tunc order correcting the journal entry to state that
Davis had been informed of his duty to register under KORA, and the term of registration
was 10 years, as provided by K.S.A 22-4906.

Four years later, on September 15, 2014, Davis filed a pro se motion to correct an
illegal sentence under K.S.A. 22-3504(1). In his motion, Davis alleged, in part, that the
district court violated his rights when it imposed the offender registration requirement in
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the nunc pro tunc order outside his presence. Subsequently, defense counsel moved to
have the district court resentence Davis and impose the registration requirement in Davis'
presence to remedy the claimed due process violation under K.S.A 22-3405.

On January 23, 2015, the district court summarily denied both motions, ruling that
its failure during sentencing to discuss the offender registration requirements did not
render Davis' sentence illegal or require resentencing because registration is not part of
sentencing. In particular, the district court found that "[r]egistration is not part of the
sentence, it is merely part of the sentencing proceeding."

Davis appeals and asks us to proceed without briefing under Supreme Court Rule
7.041A (2015 Kan. Ct. R. Annot. 67). The State does not object to summary disposition.

ANALYSIS

On appeal, Davis "contends he has a right to be present at sentencing pursuant to
K.S.A. 22-3405, and that the district court violated his right to be present at sentencing."
Davis candidly concedes, however, that his argument is contrary to our court's precedent
in State v. Simmons, 50 Kan. App. 2d 448, 329 P.3d 523 (2014), petition for rev. filed
July 25, 2014. In response, the State also cites Simmons and argues that Davis "is not
entitled to any relief as the registration requirement is not considered part of his
sentence."

A defendant in a criminal case has the right to be present at every critical stage of
the trial. K.S.A 22-3405(1); State v. Herbel, 296 Kan. 1101, 1106, 299 P.3d 292 (2013).
"That right emanates from the Sixth Amendment right to confront witnesses and from the
right to due process guaranteed under the Fifth and Fourteenth Amendments to the
United States Constitution. [Citations omitted.]" State v. Davis, 284 Kan. 728, 731, 163
P.3d 1224 (2007).
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Sentencing is a critical stage of a criminal proceeding. State v. Bristor, 236 Kan.
313, 317-18, 691 P.2d 1 (1984); see also State v. Hall, 298 Kan. 978, 987-88, 319 P.3d
506 (2014) ("[A]ny completion of sentencing must take place in the defendant's presence
in open court."). Thus, sentences imposed without the presence of a defendant are void
and have no legal effect. See State v. Arrocha, 42 Kan. App. 2d 796, Syl. ¶ 1, 217 P.3d
467 (2009) ("A [felony] sentence imposed outside the presence of the defendant is void
unless the defendant has waived this right.").

Whether a sentence is illegal within the meaning of K.S.A. 22-3504(1) is a
question of law over which our court has unlimited review. State v. Taylor, 299 Kan. 5, 8,
319 P.3d 1256 (2014). When a district court summarily denies a motion to correct illegal
sentence—as in the case here—our court applies a de novo standard of review because
we have the same access to the motion, records, and files as the district court. See
Makthepharak v. State, 298 Kan. 573, 577, 314 P.3d 876 (2013).

As noted earlier, Davis was informed in the written plea agreement and at the plea
and sentencing hearings that his guilty plea and conviction mandated that he register
under KORA. Although the district court did not specify the length of the registration
period, the court remedied this oversight in its nunc pro tunc order by clarifying that
Davis had a duty under KORA to register for a period of 10 years. Given these unique
facts we are persuaded that Davis was personally informed at sentencing of the
requirement that he register under KORA but was not told of the duration of the
registration requirement.

Any failure of the district court to specify the exact term of KORA registration at
sentencing or the court's correction of the nunc pro tunc order without the presence of
Davis, however, does not affect the legality of Davis' sentence. Our court's holding in
Simmons is dispositive of Davis' offender registration arguments.

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In Simmons, our court held that offender registration is not part of a defendant's
sentence. In reaching this holding, the Simmons court stated:

"Because an offender's statutory duty to register is imposed automatically by operation of
law, without court intervention, as a collateral consequence of judgment with a stated
objective of protecting public safety and not punishment, we necessarily conclude that
the registration requirements—no matter when imposed—are not part of an offender's
sentence." (Emphasis added.) 50 Kan. App. 2d at 451.

Because offender registration was not part of Davis' sentence, his arguments
relating to an illegal sentence and his right to be present at sentencing are without merit
under these circumstances. See State v. Rice, No. 112,778, 2015 WL 7434701, at *1
(Kan. App. 2015) (unpublished opinion), petition for rev. filed December 18, 2015; State
v. Hill, No. 111,226, 2015 WL 2342392, at *2 (Kan. App. 2015) (unpublished opinion),
petition for rev. filed June 5, 2015; State v. Kilpatrick, No. 111,055, 2015 WL 1123021,
at *2-3 (Kan. App. 2015) (unpublished opinion), petition for rev. filed April 2, 2015;
State v. Ward, No. 109,325, 2014 WL 5610212, at *2-3 (Kan. App. 2014) (unpublished
opinion), petition for rev. filed November 21, 2014.

Affirmed.