State v. Rice

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NOT DESIGNATED FOR PUBLICATION

Nos. 112,778
112,779

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JUSTIN RICE,
Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; DAVID B. DEBENHAM, judge. Opinion filed November 20,
2015. Affirmed.

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

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before LEBEN, P.J., MCANANY and BUSER, JJ.

Per Curiam: In accordance with his plea agreement with the State, Justin Rice
pled guilty to six counts of solicitation to commit aggravated robbery. The State
presented factual bases for the crimes that consisted of Rice's meetings with Andrew
Hogue to plan robberies at a laundromat and at Club New Orleans, both located in
Shawnee County. Rice urged Hogue to bring a handgun. Hogue did so and discharged the
gun during both robberies. The State also presented evidence supporting these charges at
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a preliminary hearing. After Rice admitted he had committed the acts the State alleged,
the district court accepted Rice's guilty pleas and found him guilty.

At the sentencing hearing, the court sentenced Rice to prison. At the State's
request, and with no objection from Rice, the court ordered him to register as a violent
offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq.,
for 15 years after his release from prison. This was based on the court's determination
that a deadly weapon had been used in the commission of the crimes.

Rice appeals, arguing that the district court violated his constitutional rights under
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when
the court, rather than a jury, determined that a deadly weapon was used in the
commission of the crimes. In Apprendi, the Court held that "[o]ther 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.

Rice's argument raises an issue of law over which we have unlimited review. See
State v. Cheeks, 298 Kan. 1, 4, 310 P.3d 346 (2013).

Rice failed to object to the registration requirement before the district court. This
usually would preclude him raising the issue on appeal. See State v. Bowen, 299 Kan.
339, 354, 323 P.3d 853 (2014). But our appellate courts traditionally have addressed
Apprendi issues raised for the first time on appeal, so we will do so here.

Under K.S.A. 2011 Supp. 22-4902a(a)(7), registration is required of "any person
who . . . 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." Here, the
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person felony was aggravated robbery. Rice claims this registration requirement
increased the penalty for his crime. Thus, he contends, Apprendi required that the finding
that a deadly weapon was used in the commission of these crimes had to be proven to a
jury, not merely to the sentencing judge.

In State v. Chambers, 36 Kan. App. 2d 228, 238-39, 138 P.3d 405, rev. denied 282
Kan. 792 (2006), this court held that KORA does not implicate Apprendi because
offender registration does not constitute a sentence enhancement. In State v. Simmons, 50
Kan. App. 2d 448, Syl. ¶ 13, 329 P.3d 523 (2014), petition for rev. filed July 25, 2014,
our court reiterated that KORA registration requirements are not part of a defendant's
sentence: "The offender registration requirements set forth in KORA arise automatically
by operation of law without court involvement and represent nonpunitive collateral
consequences of judgment; thus, a duty to register under KORA is distinct from, and not
part of, an offender's criminal sentence."

In several other cases this court has held that Apprendi does not apply to a
sentencing judge's finding that a deadly weapon was used in the commission of a crime.
See State v. Weis, 47 Kan. App. 2d 703, 717-19, 280 P.3d 805 (2012), petition for rev.
filed July 15, 2012; State v. Franklin, 44 Kan. App. 2d 156, 160-62, 234 P.3d 860 (2010),
rev. denied 297 Kan. 1250 (2013); State v. Villa, No. 112,107, 2015 WL 1784358, at *2-
3 (Kan. App. 2015) (unpublished opinion), petition for rev. filed May 7, 2015.

Rice argues that Chambers and the cases that rely on Chambers were wrongly
decided. But in State v. Unrein, 47 Kan. App. 2d 366, 370-72, 274 P.3d 691 (2012), rev.
denied 297 Kan. 1256 (2013), which also involved registration for using a deadly weapon
in the commission of the crime, the court rejected many of the same arguments that Rice
raises here. Like Rice, Unrein argued that Chambers was wrongly decided. The Unrein
court rejected this argument, stating: "In fact, Chambers distinguished an increased
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sentence (that implicates Apprendi) from increased punishment (that does not implicate
Apprendi) based, in part, on Kansas Supreme Court precedent" which this court is duty
bound to follow. Unrein, 47 Kan. App. 2d at 370-71.

Rice argues that because his convictions were for solicitation to commit
aggravated robbery, no element of the crime necessarily proved that a deadly weapon was
used. See K.S.A. 2011 Supp. 21-5303. He also argues that he was charged under K.S.A.
2011 Supp. 21-5420(b), not the specific subsection containing the element requiring
being armed with a dangerous weapon (K.S.A. 2011 Supp. 21-5420[b][1]). But at the
plea hearing, the State presented the factual bases for Rice's crimes that included the use
of a handgun in the commission of the crimes, and Rice did not dispute those facts.
Further, the use of a handgun was corroborated by the evidence presented at the
preliminary hearing. There was uncontested evidence before the court that a deadly
weapon had been used in the commission of these crimes.

Rice contends that the stigma attached to offender registration constitutes
punishment. But the Unrein court rejected this argument as well, citing Smith v. Doe, 538
U.S. 84, 99, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), in which the United States
Supreme Court held that posting sex offender registration on the Internet did not
constitute punishment despite any stigma attached. Unrein, 47 Kan. App. 2d at 371-72.
The Unrein court concluded: "If the stigma attached to public registration as a sex
offender is not punishment, the notoriety that [one] might experience for being listed as
an individual who used a deadly weapon during the commission of two crimes is also not
punishment." 47 Kan. App. 2d at 371.

Rice argues that State v. Myers, 260 Kan. 669, 923 P.2d 1024, cert. denied 521
U.S. 1118 (1996), supports his position that KORA registration is punishment. Rice notes
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that the Myers court found that "registration repercussions due to the public access
provisions are great enough to be considered punishment." See 260 Kan. at 699.

In Myers, our Supreme Court examined the Kansas Sex Offender Registration Act
(KSORA)—the precursor to KORA—to determine whether its registration and public
disclosure provisions violated the Ex Post Facto Clause of the United States Constitution
when applied to an offender who committed his underlying crime before KSORA took
effect. The court in Myers concluded that the KSORA registration requirement was not
punishment, "thus, our ex post facto inquiry as to registration ends." 260 Kan. at 696. But
the Myers court went on to conclude that the public disclosure provision, as applied, was
prohibited ex post facto punishment. 260 Kan. 669, Syl. ¶ 8.

Rice also cites the decision 2 years later, in State v. Scott, 265 Kan. 1, 6, 961 P.2d
667 (1998), in which the court stated it would "not attempt to alter the Myers conclusion
as to the punitive effect" of offender registration.

But we are satisfied our Supreme Court would no longer follow its holdings in
Myers and Scott on the punitive nature of public disclosure in view of the later United
States Supreme Court decision in Doe in which, as noted earlier, the Court held that
posting sex offender registration on the Internet did not constitute punishment despite any
stigma attached. 538 U.S. at 99.

Rice cites Southern Union Company v. United States, 567 U.S. ___, 132 S. Ct.
2344, 2357, 183 L. Ed. 2d 318 (2012), for the proposition that penalties implicating
Apprendi include criminal fines. But Rice does not argue that a criminal fine was
imposed in this case. In any event, the KORA $20 registration fee is not a criminal fine
but a recoupment fee. Weis, 47 Kan. App. 2d at 717-19; Unrein, 47 Kan. App. 2d at 372.

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Rice also cites Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 2155,
2158-63, 186 L. Ed. 2d 314 (2013), in which the Court reiterated the rule that any facts
that increase a minimum mandatory sentence must be proven beyond a reasonable doubt.
But because KORA registration is not a form of punishment, the sentencing court's
finding that KORA applies did not increase Rice's sentence and, therefore, did not
implicate Apprendi nor does it run afoul of the holding in Alleyne.

Rice also contends that his case is similar to State v. Limon, No. 96,103, 2007 WL
1042154 (Kan. App. 2007) (unpublished opinion). Limon is clearly distinguishable
because it involved an increase to a defendant's postrelease supervision period based on a
finding that the crime was sexually motivated. 2007 WL 1042154, at *5-6. Here, there
was no increase in Rice's postrelease supervision period or to any part of his sentence.

Finally, Rice argues that Chambers failed to discuss the "punitive consequences"
that proceed from an order requiring registration as an offender, specifically noting the
$20 recoupment fee and the higher severity level of any felony offense for violating
KORA which could lead to additional imprisonment. These arguments were addressed in
Unrein, in which the court held: "[E]xposure 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, [citation omitted], and the threat of criminal liability is not
punishment but a means to this end." 47 Kan. App. 2d at 372.

We adhere to the holding in Weis, 47 Kan. App. 2d at 719, in which a panel of this
court stated: "The stigma [Weis] might expect to suffer from registration is not an
increase in sentence or punishment but a collateral consequence of his registration as an
offender. Accordingly, we do not believe the trial court's factual finding [of use of a
deadly weapon] violated . . . Apprendi." Thus, based upon the foregoing analysis, we
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conclude that the district court did not violate Rice's constitutional rights under Apprendi
by making a factual finding that required Rice to register under KORA.

As his final issue, Rice raises a different Apprendi argument. He argues that the
district court violated his constitutional rights under Apprendi by sentencing him based in
part on his criminal history without proving that criminal history to a jury. Our Supreme
Court already decided this issue contrary to Rice's position in State v. Ivory, 273 Kan. 44,
45-48, 41 P.3d 781 (2002). We are duty bound to follow Kansas Supreme Court
precedent absent some indication that the court is departing from its earlier position. State
v. Shaw, 47 Kan. App. 2d 994, 1006, 281 P.3d 576 (2012), rev. denied 297 Kan. 1255
(2013). We see no such indication. This contention fails.

Affirmed.