State v. McCraw

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NOT DESIGNATED FOR PUBLICATION

No. 115,146

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

REGINALD D. MCCRAW,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed March 31, 2017.
Affirmed and remanded with directions.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

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

Per Curiam: Reginald D. McCraw was charged with attempted second-degree
murder and aggravated robbery from an incident in which he backed over Michael
Scriven with his Cadillac and then beat and robbed him. Following jury selection, and the
State's presentation of three witnesses at the jury trial, McCraw decided to enter into a
plea agreement. In exchange for McCraw's guilty plea, the State amended the charges to
two counts of aggravated battery. Count I identified McCraw's Cadillac as a deadly
weapon. Count II did not identify any deadly weapons. At the plea hearing, the district
court identified on the record that the first count of aggravated battery was committed
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with a deadly weapon. McCraw was subsequently sentenced to 47 months in prison and
12 months of postrelease supervision and was required to register as a violent offender
for 15 years.

McCraw appeals. He argues there was ambiguity surrounding his plea agreement,
and the district court abused its discretion when it required him to register as a violent
offender.

On the morning of January 28, 2014, McCraw got into a confrontation with
Scriven in the parking lot of a shopping center. Scriven began to walk away from the
confrontation. McCraw, driving his Cadillac, chased down Scriven. McCraw put the car
in reverse and backed over Scriven. McCraw then got out of the Cadillac and punched
Scriven as he lay on the ground. Witnesses stated that McCraw indicated Scriven had
broken the back window out of the Cadillac and had stolen money from him. McCraw
went through Scriven's pockets as he lay injured on the ground, got back in the Cadillac,
and quickly drove away. In his rush, McCraw hit another car as he drove out of the
parking lot. McCraw left the scene of the accident. Witnesses were able to give police
both a description of McCraw's Cadillac and the license plate number. The police located
and apprehended McCraw later that day. Scriven had been severely injured in the
incident. One witness could not identify Scriven's race because his face was covered in a
large amount of blood. Scriven required a ventilator and was sedated. His hip was
shattered, his scalp was torn loose, and he had multiple broken bones.

On January 31, 2014, McCraw was charged with attempted second-degree murder
and aggravated robbery. At the preliminary hearing on April 3, 2014, the State presented
11 witnesses. McCraw was bound over for jury trial on both attempted second-degree
murder and aggravated robbery. A jury was selected June 22 and 23, 2015, and the State
presented three witnesses on June 23, 2015. The following day, June 24, 2015, McCraw
entered into a plea agreement with the State. He agreed to plead guilty to two counts of
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aggravated battery, a level 7 person felony. Count I was "with a deadly weapon,"
specifically McCraw's Cadillac. Count II was not "with a deadly weapon," but "in a
[manner] whereby great bodily harm, disfigurement or death can be inflicted" from
McCraw punching Scriven. At the conclusion of the plea hearing, the judge asked,
"There's no registration requirements I need to be aware of on this, are there?" McCraw's
counsel replied, "Not that I'm aware of, Your Honor." The State filed an amended
information on June 26, 2015, reflecting the charges to which McCraw had pled.
Specifically, Count 1 was aggravated battery "with a deadly weapon, to wit: a Cadillac"
and Count 2 was aggravated battery "in a manner whereby great bodily harm,
disfigurement or death can be inflicted, to wit: beating."

A presentence investigation (PSI) report was filed on November 24, 2015. The PSI
report indicated that offender registration was required for both of the counts of
aggravated battery. At the sentencing hearing on December 1, 2015, McCraw's counsel
objected to the "Offender Registration Required" box being checked on the PSI report.
McCraw's counsel maintained that the offender registration requirement was not part of
any of the plea discussion with the State:

"The rule as far as registration goes states here each conviction, person felony with a
court finding on the record that such a felony was committed by a deadly weapon.
"We did not agree for that finding to be made. There is nothing in the plea
agreement where the State was going to be asking for that finding to be made. That
finding was not part of our negotiation on the case, and the Court's not obligated to make
that finding. Now, I understand a car can be considered a deadly weapon. That's a
possibility. There's times where it's absolutely appropriate."

The State responded that the amended information specifically said "with a deadly
weapon." Furthermore, "[t]here was an admittance of guilt to that being the crime [that]
was committed with a deadly weapon, a Cadillac." The district court sentenced McCraw
to 34 months on count 1 and 13 months on count 2 for a total of 47 months in prison and
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12 months of postrelease supervision and required McCraw to register as a violent
offender for 15 years. Looking to the notice of duty to register, the district court listed
both counts of aggravated battery as the basis for the registration requirement.

On appeal, McCraw first argues it was an abuse of discretion when the district
court ordered him to register as a violent offender for 15 years. McCraw cites State v.
Gant, 288 Kan. 76, 201 P.3d 673 (2009), for the standards regarding abuse of discretion
by a trial court. He maintains that ambiguity surrounded whether he and the State were
proceeding "on a deadly weapon course as opposed to simply great bodily harm" as
evidenced by his counsel's colloquy with the district court at sentencing. McCraw
concedes the issue of his Cadillac being considered a deadly weapon was brought up by
the district court during the plea hearing. However, in light of this, McCraw asserts that
"taken as a whole," an examination of the documents surrounding the plea agreement and
his trial counsel's arguments during the sentencing hearing reveal an ambiguity. McCraw
maintains the ambiguity is further evident from the district court and his counsel being
unaware during the plea hearing of any requirements to register. McCraw contends that if
the parties did proceed on a deadly weapon theory on Count 1, the district court made
insufficient findings at the sentencing hearing to order registration. McCraw argues the
ambiguity surrounding the case resulted in the district court abusing its discretion.

The State argues statutory construction is necessary to resolve this appeal,
specifically statutory interpretation regarding the Kansas Offender Registration Act
(KORA). The State maintains district courts requiring offender registration when the
offense is not specified as a registrable offense under the KORA is a discretionary act.
The State then outlines the abuse of discretion standard citing State v. Ward, 292 Kan.
541, 256 P.3d 801 (2011). The State contends there was no ambiguity surrounding
McCraw's case. The State points out that KORA specifically requires violent offender
registration when "the court makes a finding on the record that a deadly weapon was used
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in the commission of a person felony." K.S.A. 2015 Supp. 22-4902(e)(2). The State is
clear that McCraw pled guilty to two aggravated battery counts.

The State argues the record is not ambiguous in this case. The State indicates the
district court clarified that Count 1 of aggravated battery was done with a deadly weapon,
specifically McCraw's Cadillac. Furthermore, the amended information clearly states
"'with a deadly weapon'" in Count 1, referencing the Cadillac. The State further maintains
the sentencing hearing did not contain any ambiguity. McCraw's counsel argued that
McCraw had never discussed registration with the State and McCraw had never agreed to
a deadly weapon finding being made. The State asserts McCraw fully understood his plea
and no allegations have been made that he did not understand that Count 1 concerned the
use of a deadly weapon.

Finally, the State contends the district court made a deadly weapon finding at the
sentencing hearing. While the district court may not have used the exact words "deadly
weapon," looking to the hearing in its full context, the court clearly made the finding. The
State maintains there is no other reasonable way to interpret the court's comments and
KORA does not require the use of any magic words. The court issued its finding
immediately after both the State and McCraw's counsel's arguments regarding the deadly
weapon issue. The State argues that McCraw's argument on this point fails.

"'Judicial discretion can be abused in three ways: (1) if no reasonable person
would have taken the view adopted by the trial court; (2) if the judicial action is based on
an error of law; or (3) if the judicial action is based on an error of fact.' [Citation
omitted.]" State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). Contrary to what
the State claims, this is not an issue of statutory interpretation, the applicable statute in
this case is quite clear. The statute reads: "'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."
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K.S.A. 2015 Supp. 22-4902(e)(2). Essentially three elements must be present in order for
an individual to be found a violent offender under this statute. First, the conviction must
occur "on or after July 1, 2006." K.S.A. 2015 Supp. 22-4902(e)(2). Second, the
individual must be convicted of a person felony. K.S.A. 2015 Supp. 22-4902(e)(2).
Finally, the court must make a finding "that a deadly weapon was used in the commission
of" the felony on the record. K.S.A. 2015 Supp. 22-4902(e)(2). All three factors are
present in this case.

First, McCraw's conviction occurred after July 1, 2006. He pled guilty and was
convicted on June 24, 2015. Second, McCraw was convicted of two person felonies,
specifically two counts of aggravated battery. The first two elements of the statute are
unmistakably present, and neither of the parties dispute that fact. The dispute lies in the
third element.

McCraw claims the district court made insufficient findings at the sentencing
hearing to order registration. However, McCraw fails to see that this is not what the
statute requires. Instead, the statute requires a court to make "a finding on the record that
a deadly weapon was used." K.S.A. 2015 Supp. 22-4902(e)(2). The statute does not say
that such a finding needs to be made at the sentencing hearing, just that the court needs to
make the "finding on the record." K.S.A. 2015 Supp. 22-4902(e)(2). This happened at
McCraw's plea hearing:

"THE COURT: That's fine. In Count 1, Mr. McCraw, it's alleged that on or
about January 28th, 2014, here in Sedgwick County, Kansas, you knowingly caused
bodily harm to another person, that being Michael Scriven, with a deadly weapon, which
was your automobile, in a manner whereby great bodily harm, disfigurement or death can
be inflicted. Is that true?
"THE DEFENDANT: Yes, sir." (Emphasis added.)

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Clearly, the district court made the deadly weapon finding on the record. The district
court was correct in requiring McCraw to register as a violent offender at sentencing.
K.S.A. 2015 Supp. 22-4902(e)(2).

With all of the statutory elements present for requiring violent offender
registration, the district court never had to use discretion in making its registration
decision. However, even if the court's decision was discretionary, none of the ways abuse
of discretion presents itself exist in this case. Looking to the first abuse of discretion
instance, a reasonable person would most certainly "have taken the view adopted by the
trial court" as all of the elements of the statute were met. Marshall, 303 Kan. at 445.
Looking to the second instance, the judicial decision in this case was not "based on an
error of law." 303 Kan. at 445. Last, looking to the third instance, the judicial decision in
this case was not "based on an error of fact." 303 Kan. at 445. Abuse of discretion is not
present in this case.

The majority of McCraw's argument, besides the brief point addressed above,
revolves around an allegation that ambiguity existed as to the violent offender registration
requirement, therefore causing the district court to abuse its discretion. McCraw was
apparently not aware the registration requirement would be part of the plea agreement.
McCraw cites no caselaw to support this premise, besides outlining the abuse of
discretion standard at the beginning of his argument. McCraw is never clear how this
ambiguity may have led to the court abusing its discretion because he never references to
the abuse of discretion standard in his argument. Instead, McCraw goes straight from the
alleged ambiguity to a broad claim that "the district court abused its discretion." All
elements of the statute have been met, and this was not even a discretionary decision. The
district court did not abuse its discretion.

Finally, a point brought up by McCraw, and perhaps the best argument that the
district court never made a deadly weapon finding, was the colloquy between McCraw's
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counsel and the court at the end of the plea hearing. The district court asked at the end of
the plea setting, "There's no registration requirements I need to be aware of on this, are
there?" McCraw's counsel replied, "Not that I'm aware of, Your Honor." Regardless of
this colloquy, the court did make a finding on the record that McCraw had committed the
aggravated battery with a deadly weapon. While the court might not have had KORA in
mind when it made this finding, the finding was made nonetheless. Nothing in the statute
requires the district court to make the deadly weapon finding in contemplation of a
KORA requirement. K.S.A. 2015 Supp. 22-4902(e)(2). This colloquy does not change
the abuse of discretion analysis from above. Abuse of discretion is simply not present in
this case.

One issue not addressed by the parties is that the district court listed both counts of
aggravated battery as the basis for KORA requirement on the notice of duty to register. A
deadly weapon finding was only found by the district court as to Count 1 and was
expressly rejected as to Count 2. While this does not change the fact that McCraw still
has to register as a violent offender, it is a bit concerning due to the lifetime registration
requirement for any "second or subsequent conviction of an offense requiring
registration" as outlined in K.S.A. 2015 Supp. 22-4906(c). The journal entry of judgment
specifically says McCraw only has to "register for 15 [years]"; however, the notice of
duty to register should be corrected to note that there was only one conviction of an
offense requiring registration to prevent any negative consequences it could have on
McCraw.

Affirmed and remanded with directions.