State Of Kan. v. Jackson
| Decision Date | 20 August 2010 |
| Docket Number | No. 100,807,100,807 |
| Parties | State of Kansas,Appellee, v. Carlos J. Jackson,Appellant. |
| Court | Kansas Supreme Court |
Christina M. Waugh, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Nicole Romine, assistant district attorney, argued the cause, and Mark A. Simpson, assistant district attorney, and Charles E. Branson, district attorney, and Steve Six, attorney general, were on the brief for appellee.
1.Statutorily mandated offender registration is an incident of sentencing that may be set out in a journal entry of sentencing even if it is not included in the sentence that is pronounced from the bench.
2.As a general rule, appellate courts strictly construe criminal statutes in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused, subject to the qualification that judicial interpretation must be reasonable and sensible to effect legislative design and intent.
3.The legislature has retained a distinction between prosecution as an adult and prosecution as an extended jurisdiction juvenile offender. This distinction applies to sentences and to incidents of sentencing.
Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed August 20, 2010. Sentence vacated in part and case remanded with directions.
The opinion of the court was delivered by
Carlos Jackson appeals from an order directing him to register under the Kansas Offender Registration Act following his plea of guilty to three counts of aggravated battery.
Jackson was born on August 17, 1981. On February 1, 1999, he was sentenced as an extended jurisdiction juvenile offender for first degree murder and attempted aggravated robbery in case No. 98JV765. The court sentenced him to a term of life and a concurrent term of 32 months in prison. The court extended jurisdiction over him until his 23rd birthday in 2004.
On February 10, 2008, Jackson visited a club in Lawrence and became involved in a fight. He went to his car and retrieved a gun, which he fired several times in the vicinity of a crowd. Several people were injured as a result. The State charged him with three counts of aggravated battery in violation of K.S.A. 21-3414(a)(2)(A).
Jackson entered a guilty plea, and the court sentenced him from the bench to a term of 120 months' imprisonment for the first count and to consecutive terms of 32 months' imprisonment for the other two counts. The district court subsequently instructed the parties to prepare briefs on the question of whether his juvenile adjudications constituted convictions for purposes of the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. The court then filed a journal entry of sentencing in which it ordered Jacksonto maintain lifetime registration under K.S.A. 22-4902(a)(7) because he had a second conviction of a crime committed with a deadly weapon.
The first question before this court is whether the sentencing court had jurisdiction to impose offender registration when it did not include the registration when it pronounced sentence from the bench. Jurisdiction is a question of law over which this court exercises unlimited review. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).
Sentencing in a criminal proceeding takes place when the trial court pronounces the sentence from the bench. State v. Garcia, 288 Kan. 761, 765, 207 P.3d 251 (2009); Abasolo v. State, 284 Kan. 299, 304, 160 P.3d 471 (2007); State v. Moses, 227 Kan. 400, 402, 607 P.2d 477 (1980). The journal entry is merely a record of the sentence imposed, and the district court has no jurisdiction to change the sentence once the court pronounces the sentence. Garcia, 288 Kan. at 766; State v. Russell, 36 Kan. App. 2d 396, 398, 138 P.3d 1289 rev. denied 282 Kan. 795 (2006); see State v. Anthony, 274 Kan. 998, 1001-02, 58 P.3d 742 (2002). A district court is powerless to vacate a sentence and impose a harsher sentence once it has pronounced sentence. State v. Royse, 252 Kan. 394, 398, 845 P.2d 44 (1993). A journal entry that imposes a sentence varying from the sentence pronounced from the bench is erroneous and must be corrected to show the actual sentence imposed. State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 (2001).
The rule against altering a sentence in a journal entry is not, however, absolute. Clarification is not the same as modification, and a district court retains jurisdiction to file a journal entry of sentencing that clarifies an ambiguous or poorly articulated sentence pronounced from the bench. See State v. Crawford, 253 Kan. 629, 649-50, 861 P.2d 791 (1993). A sentencing court also has jurisdiction to modify a sentence after pronouncing it orally in order to correct an arithmetic or clerical error. Russell, 36 Kan. App. 2d at 398. And a sentencing court may later set the exact amount of restitution to bepaid after it has completed pronouncing sentence from the bench. State v. Cooper, 267 Kan. 15, 18-19, 977 P.2d 960 (1999).
The Kansas Court of Appeals has held that conditions of probation forming the basis for a defendant's liberty are considered part of the sentence. State v. Baldwin, 37 Kan. App. 2d 140, 143, 150 P.3d 325 (2007). Assignment of a defendant to Labette Correctional Conservation Camp, for example, was a special condition of probation that had to be articulated at sentencing from the bench and could not be added as a condition in the journal entry. See 37 Kan. App. 2d at 141-43.
In reaching this conclusion, the Court of Appeals looked to other jurisdictions that have held that conditions of probation stated in a journal entry but not imposed in open court are of no effect. 37 Kan. App. 2d at 143-44; see United States v. Bigelow, 462 F.3d 378, 383 (5th Cir. 2006); United States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005); State v. Bailey, 782 So. 2d 22, 26 (La. App. 2001); State v. Malloy, 325 Mont. 86, 90, 103 P.3d 1064 (2004); see also United States v. Handakas, 329 F.3d 115, 117-18 (2d Cir. 2003) ().
The Court of Appeals noted, however, that the rule is typically restricted to special conditions of probation. Standard conditions of probation imposed by statute in every case are excluded because the defendant has constructive notice of them and the conditions are implicit in the grant of every probation. 37 Kan. App. 2d at 144; see United States v. Napier, 463 F.3d 1040, 1042-43 (9th Cir. 2006); State v. Williams, 712 So. 2d 762, 764 (Fla. 1998); Bailey, 782 So. 2d at 26; State v. Kroll, 322 Mont. 294, 30102, 95 P.3d 717 (2004).
We find that the statutorily required imposition of lifetime registration is an incident of sentencing, akin to restitution. K.S.A. 22-4906 speaks of persons who are "required to register" and of a "registration requirement." Because registration is a mandatory, not a discretionary, act, the order of registration is the same kind of standard order of probation cited by our Court of Appeals in Baldwin. Because the defendant has constructive notice of the registration requirement, it is implicit in every sentence that falls within the scope of K.S.A. 22-4906. The journal entry did not modify the sentence but simply carried out a statutory imperative. The sentencing court had jurisdiction to include the registration requirement in the journal entry without making it part of the sentence imposed from the bench.
We must now determine whether the district court properly relied on a prior extended jurisdiction juvenile conviction when it ordered Jackson to maintain lifetime violent offender registration.
Lifetime registration under K.S.A. 22-4906 requires at least one previous conviction of a violent crime. Jackson argued to the district court and reasserts on appeal that his prior extended jurisdiction juvenile adjudication was not a conviction under K.S.A. 22-4906. Because this issue involves the interpretation of a statute, it is a questionof law over which this court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
K.S.A. 22-4902(a)(7) defines an "offender" to be "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." K.S.A. 22-4906(a) provides for a 10-year registration period following a conviction of one of the offenses described under K.S.A. 22-4902(a), and a lifetime...
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