State v. Ohrt

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NOT DESIGNATED FOR PUBLICATION

No. 114,516

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RONALD J. OHRT
Appellant.


MEMORANDUM OPINION

Appeal from Butler District Court; CHARLES M. HART, judge. Opinion filed July 15, 2016.
Affirmed.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., GREEN and GARDNER, JJ.

Per Curiam: Ronald J. Ohrt appeals his sentence following his conviction of one
count of failure to register a change of employment as required by the Kansas Offender
Registration Act (KORA), K.S.A. 22-4901 et seq. Ohrt argues that the district court erred
by classifying his two prior Delaware convictions for failure to register as a sex offender
as person felonies for criminal history purposes. Ohrt also argues that the district court
erred by calculating his sentence based in part on his criminal history without first
requiring the State to prove his criminal history beyond a reasonable doubt to a jury. For
the reasons stated herein, we affirm the district court's judgment.

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The facts are straightforward. On March 20, 2015, pursuant to a plea agreement,
Ohrt pled guilty to one count of failure to register a change of employment within 3
business days of change of employment status, as required by KORA. See K.S.A. 2015
Supp. 22-4905(g). The district court ordered a presentence investigation (PSI) report,
which calculated Ohrt's criminal history score as B, based in part upon the classification
as person felonies of two prior Delaware convictions for failure to register as a sex
offender as required by the Delaware Sex Offender Registration Act (DSORA). At the
sentencing hearing on June 25, 2015, Ohrt did not object to his criminal history score,
and the district court imposed the standard presumptive sentence of 39 months'
imprisonment, with 24 months' postrelease supervision. Ohrt timely appealed.

Ohrt first argues that the district court erred by classifying his Delaware
convictions as person felonies for criminal history purposes. In support, Ohrt cites
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and
Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013),
arguing that Descamps requires the KORA and DSORA provisions to be identical to
justify classifying the Delaware convictions as person offenses. In response, the State
contends that Descamps is inapplicable and that the district court correctly determined
that the Delaware convictions should be classified as person offenses. In the alternative,
the State argues that if Descamps does apply, this court should remand for further
proceedings to determine whether the Delaware convictions should be classified as
person or nonperson offenses.

Ohrt acknowledges that he did not raise this argument in the district court. As he
asserts, however, he may raise a legal challenge to the classification of a prior conviction
for the purposes of lowering his criminal history score for the first time on appeal under
K.S.A. 22-3504(1), which authorizes courts to correct an illegal sentence at any time.
See State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015).

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"Whether a defendant's constitutional rights as described under Apprendi were
violated by a district court at sentencing raises a question of law subject to unlimited
review. [Citation omitted.]" Dickey, 301 Kan. at 1036. In addition, "[w]hether a prior
conviction or adjudication was properly classified as a person or nonperson crime for
criminal history purposes raises a question of law subject to unlimited review. [Citations
omitted.]" 301 Kan. at 1034. Finally, questions of statutory interpretation and whether a
sentence is illegal are questions of law subject to unlimited review. State v. Morrison,
302 Kan. 804, 813, 359 P.3d 60 (2015); Dickey, 301 Kan. at 1034.

K.S.A. 2015 Supp. 21-6811(e) explains how a district court shall designate a prior
out-of-state conviction as a person or nonperson offense for criminal history purposes:

"(1) Out-of-state convictions and juvenile adjudications shall be used in
classifying the offender's criminal history.
. . . .
"(3) The state of Kansas shall classify the crime as person or nonperson. In
designating a crime as person or nonperson comparable offenses shall be referred to. If
the state of Kansas does not have a comparable offense, the out-of-state conviction shall
be classified as a nonperson crime.
. . . .
"(5) The facts required to classify out-of-state adult convictions and juvenile
adjudications shall be established by the state by a preponderance of the evidence."
(Emphasis added.)

Under State v. Keel, 302 Kan. 560, 590, 357 P.3d 251 (2015) cert. denied 136
S. Ct. 865 (2016), "the classification of a prior conviction or juvenile adjudication as a
person or nonperson offense for criminal history purposes . . . is determined based on the
classification in effect for the comparable Kansas offense at the time the current crime of
conviction was committed." (Emphasis added.) The prior convictions at issue here are
violations of DSORA's registration requirements. Therefore, the first step is determining
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whether Kansas has a comparable offense. According to the PSI, both of Ohrt's DSORA
violation convictions—one in 2006 and one in 2009—were under Del. Code Ann. tit. 11,
§ 4120 (2006 and 2008).

Del. Code Ann. tit. 11, § 4120 addresses registration requirements for Delaware
sex offenders. It requires sex offenders to register within a certain time after completion
of a sentence imposed for a sex offense; to register no later than the time of sentencing if
the sex offender is sentenced to home confinement, probation, or a fine; and to register as
a sex offender in Delaware if a Delaware resident is convicted of an equivalent sex
offense in another state or United States territory. See Del. Code Ann. tit. 11, § 4120(a)-
(e). The statute also identifies subsequent events, such as changing one's name, residence
address, or place of employment, that require reregistration and explains the requirements
for periodic verification of a registered offender's address. See Del. Code Ann. tit. 11, §
4120(f)-(g). Finally, Del. Code Ann. tit. 11, § 4120(h)-(m) addresses petitions for release
from registration, promulgation of regulations to implement the statute, civil immunity
for certain public agencies involved, consequences for violating the statute, and privacy
of information collected.

It is not clear from the PSI which subsection of the Delaware statute Ohrt violated.
Even without this information, however, we may address Ohrt's argument on appeal. Ohrt
contends that because the elements of KORA and DSORA are not identical, Descamps
prevents factfinding he claims is necessary to determine that KORA is the most
comparable statute. Ohrt's argument is based on two major premises: (1) determining
whether there is a comparable Kansas statute in order to apply K.S.A. 2015 Supp. 21-
6811(e) requires factfinding, and (2) Descamps controls that factfinding.

Ohrt begins by pointing out that in Apprendi, 530 U.S. at 490, 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
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jury, and proved beyond a reasonable doubt." The Apprendi Court recognized that its
decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L.
Ed. 2d 350 (1998), created something of "an exceptional departure from the historic
practice" on which the Court based its holding in Apprendi. Apprendi, 530 U.S. at 487.
As the Apprendi Court noted, Almendarez-Torres "had admitted the three earlier
convictions for aggravated felonies—all of which had been entered pursuant to
proceedings with substantial procedural safeguards of their own—no question concerning
the right to a jury trial or the standard of proof that would apply to a contested issue of
fact was before the Court." 530 U.S. at 488. Ohrt contends that the Almendarez-Torres
exception does not apply here and the district court did more than merely use the
existence of the Delaware convictions to enhance his sentence.

Ohrt argues that because DSORA is broader than KORA in both its registration
requirements and the underlying crimes that require an offender to comply with those
registration requirements, DSORA "criminalizes conduct beyond that of any specifically
identifiable Kansas person felony." He concludes:

"Because not all of the acts criminalized by Del. Code Ann. [t]it. 11, § 4120 can
be tied to a specific Kansas person felony with elements criminalizing the identical
conduct, the district court necessarily engaged in additional factfinding outside the facts
proven by the existence of the prior Delaware convictions, and the Almendarez-Torres
exceptions do not apply. This additional fact-finding raised the maximum possible
sentence. In this case, it raised the applicable sentencing grid box from 'F' to 'B.' Because
those facts were never heard by a jury nor [sic] admitted via guilty pleas[] and Mr. Ohrt
did not waive his right to have those facts heard by a jury, their use in his criminal history
violated Apprendi."

Ohrt's argument is firmly grounded in his belief that determining whether there is
a comparable Kansas offense under K.S.A. 2015 Supp. 21-6811(e) to determine whether
prior out-of-state convictions should be classified as person or nonperson offenses
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requires factfinding in instances where there is not a Kansas statute "identical" to the out-
of-state statute. However, Ohrt's argument is contrary to well-established Kansas
caselaw.

Our Supreme Court has repeatedly and "explicitly ruled the crimes need not have
identical elements to be comparable for making the person or nonperson designation."
State v. Williams, 299 Kan. 870, 873, 326 P.3d 1070 (2014) (citing State v. Vandervort,
276 Kan. 164, 179, 72 P.3d 925 [2003]), overruled in part on other grounds by Dickey,
301 Kan. 1018. For purposes of identifying a comparable Kansas crime in the context of
K.S.A. 2015 Supp. 21-6811(e), the Kansas crime that is "'the closest approximation' of
the out-of-state crime [is] a comparable offense." Williams, 299 Kan. at 873. Instead of
requiring identical elements, "[t]he essential question is whether the offenses are similar
in nature and cover similar conduct. [Citations omitted.]" State v. Martinez, 50 Kan. App.
2d 1244, 1249, 338 P.3d 1236 (2014). See also State v. Barajas, 43 Kan. App. 2d 639,
643, 230 P.3d 784 (2010).

Ohrt undertakes a lengthy, complicated analysis of whether the Delaware crime
that required registration under DSORA was a crime that also would have required
registration under KORA. It is not clear how this analysis is germane to the issue before
this court—whether his DSORA violation convictions were properly classified as person
felonies for criminal history purposes. The concern is with the classification of the
registration violations, not whether the crime that prompted the DSORA registration
requirement is comparable to a Kansas crime that would require registration in Kansas.

Ohrt does not argue that KORA and DSORA do not cover the same type of
conduct. Clearly, they do: both are aimed at requiring sex offenders to register and
identify themselves and verify that information periodically or upon certain events. For
example, Del. Code Ann. tit. 11, § 4120(a)-(e) sets forth sex offender registration
timelines, while Del. Code Ann. tit. 11, § 4120(f)-(g) identifies subsequent events that
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require reregistration and explains the requirements for periodic verification of a
registered offender's address. Similarly, K.S.A. 2013 Supp. 22-4905, part of KORA in
effect at the time of Ohrt's current crime of conviction, sets forth an offender's duty to
register, explaining initial and subsequent deadlines for incarcerated, released, and
transient sex offenders. Like Del. Code Ann. tit. 11, § 4120(h), K.S.A. 2013 Supp. 22-
4908 deals with relief from further registration, and Del. Code Ann. tit. 11, § 4120(k) and
K.S.A. 2013 Supp. 22-4903 address consequences for violation of the respective acts.
KORA and DSORA are similar enough in nature and the type of conduct they prohibit
that they are comparable offenses for the purposes of K.S.A. 2015 Supp. 21-6811(e).

K.S.A. 2015 Supp. 21-6811(e) explicitly states that in designating a prior out-of-
state conviction as a person or nonperson crime, courts should look to the comparable
Kansas offense. Under K.S.A. 2013 Supp. 22-4903(c)(1), most violations of KORA are
person felonies. The only exception is if the offender violated KORA by failing to remit
required payments to the sheriff's office within 15 days of registration; that type of
KORA violation is a class A misdemeanor. K.S.A. 2013 Supp. 22-4903(c)(3)(A). Del.
Code Ann. tit. 11, § 4210 does not require payment by sex offenders upon registration, so
Ohrt could not have been convicted of violating DSORA by failing to remit required
payment to the sheriff's office within 15 days of registration as a sex offender. All other
violations of KORA at the time Ohrt committed his current crime of conviction were
classified as person offenses. Thus, under K.S.A. 2015 Supp. 21-6811(e), the district
court correctly classified Ohrt's prior Delaware convictions of violating DSORA as
person felonies.

Ohrt argues that Descamps applies here and precludes classifying his Delaware
convictions as person offenses. Our Supreme Court examined and applied Descamps in
Dickey, 301 Kan. at 1036-38:

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"In Descamps, the United States Supreme Court held that a defendant's prior conviction
for burglary under California law could not be counted as a predicate offense for burglary
under [the Armed Career Criminal Act (ACCA)], which increases the sentences of
defendants who have three prior convictions for violent felonies. Unlike the ACCA's
'generic burglary' definition, the California burglary statute at issue did not require a
'breaking and entering'; it provided that a 'person who enters' certain locations 'with intent
to commit grand or petit larceny or any felony is guilty of burglary.' [Citation omitted.]
Consequently, in order to determine whether the defendant's California burglary
conviction qualified as a predicate offense under the ACCA, the sentencing court
reviewed the underlying facts of the prior conviction to determine whether the facts
showed that the defendant accomplished the burglary by breaking and entering. The
Descamps Court held that this examination violated Apprendi because the sentencing
court engaged in factfinding to determine whether the defendant's actions satisfied an
element not contained within the California burglary statute. [Citation omitted.]
"To determine whether a prior conviction qualifies as a predicate offense under
the ACCA without violating Apprendi, the Descamps Court held that a sentencing court
must use one of two approaches—the categorical approach or the modified categorical
approach. [Citation omitted.] A sentencing court applies the categorical approach when
the statute forming the basis of the defendant's prior conviction contains a single set of
elements constituting the crime. A sentencing court simply compares 'the elements of the
statute forming the basis of the defendant's conviction with the elements of the "generic"
crime.' [Citation omitted.] If the elements of the prior conviction are the same as, or
narrower than, the elements of the corresponding crime under the ACCA, then the prior
conviction may be counted as a predicate offense for sentence-enhancement purposes
under the ACCA. [Citation omitted.]
"The modified categorical approach applies when the statute forming the basis of
the prior conviction is a 'divisible statute,' i.e., a statute which includes multiple,
alternative versions of the crime[,] and at least one of the versions matches the elements
of the generic offense. [Citation omitted.] Naturally, when a defendant's prior conviction
arises under a divisible statute, a sentencing court cannot determine whether a defendant's
prior conviction constitutes a predicate offense under the ACCA by merely examining the
elements of the statute. Thus, without running afoul of Apprendi, a sentencing court is
permitted to look beyond the elements of the statute and examine a limited class of
documents to determine 'which of a statute's alternative elements formed the basis of the
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defendant's prior conviction.' [Citation omitted.] Such documents include charging
documents, plea agreements, jury instructions, verdict forms, and transcripts from plea
colloquies as well as findings of fact and conclusions of law from a bench trial. [Citation
omitted.]"

In Dickey, our Supreme Court applied the principles from Descamps to determine
whether a 1992 Kansas burglary adjudication should be classified as a person or
nonperson offense for criminal history purposes. 301 Kan. at 1039. Under K.S.A. 2015
Supp. 21-6811(d), whether a prior burglary is classified as a person or nonperson offense
hinges upon the determination of whether the prior burglary involved a dwelling. As our
Supreme Court determined in Dickey, in order to classify the 1992 burglary adjudication
as a person felony, the sentencing judge was required to find that the burglary involved a
"dwelling." 301 Kan. at 1022. Because this is a finding of fact beyond the existence of a
prior conviction, it implicated Apprendi and "the methods Descamps outlined for making
this determination in a constitutionally valid manner necessarily apply to determining
whether a prior burglary conviction should be classified as a person or nonperson felony
under the [Kansas Sentencing Guidelines Act (KSGA)]." Dickey, 301 Kan. at 1039.

As the State points out, the instant case is distinguishable from Dickey and
Descamps because determining whether Ohrt's prior convictions of violating DSORA
should be classified as person or nonperson offenses does not require a factual
determination. Instead of being classified under K.S.A. 2015 Supp. 21-6811(d), like
burglaries, Ohrt's prior convictions are classified under K.S.A. 2015 Supp. 21-6811(e),
which controls classification of out-of-state offenses. Under K.S.A. 2015 Supp. 21-
6811(e), crimes need not have identical elements to be comparable for making the person
or nonperson designation. We decline to read Dickey and its application of Descamps as
broadly as Ohrt proposes. The KORA is the Kansas crime most comparable to DSORA
and because violating the KORA was a person felony at the time Ohrt committed his
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current crime of conviction, we conclude the district court properly classified Ohrt's prior
Delaware convictions for violating DSORA as person offenses.

Next, Ohrt argues that the district court violated his constitutional rights under the
Sixth and Fourteenth Amendments to the United States Constitution as recognized in
Apprendi when it sentenced him based in part on his criminal history without requiring
the State to allege the criminal history in the complaint and prove it beyond a reasonable
doubt to a jury. Ohrt did not raise this argument in the district court, but the Kansas
Supreme Court has held that no objection is necessary where the issue presents a question
of law and this Court considers the application of Apprendi. See State v. Anthony, 273
Kan. 726, 727, 45 P.3d 852 (2002).

Ohrt concedes that the Kansas Supreme Court previously has rejected his
argument; he merely raises it to preserve it for federal review. See State v. Ivory, 273
Kan. 44, 46-48, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme
court precedent absent some indication that the court is departing from its earlier position.
See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). There is no such indication
here. Thus, Ohrt's argument fails.

Affirmed.