State v. Carter
| Citation | 459 P.3d 186 |
| Decision Date | 06 March 2020 |
| Docket Number | No. 116,223,116,223 |
| Parties | STATE of Kansas, Appellee, v. Tabitha CARTER, Appellant. |
| Court | Kansas Supreme Court |
Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause, and was on the briefs for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
Tabitha Carter robbed a Dollar General using a Taser. A jury convicted her of aggravated robbery. The district court judge found that Carter used a deadly weapon to commit a person felony and ordered her to register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 2019 Supp. 22-4902(e)(2). Carter appeals, arguing that the registration requirement was procedurally unsound and not supported by the evidence. We reject these arguments and affirm Carter's registration requirement.
An individual wearing a clown mask entered a Wichita Dollar General in May 2015 and demanded the employees, Celia Reyes and Kaylan Sanders, hand over cash from the store's safe. While in the store, the robber displayed a Taser. The robber made away with over $3,000.
The State charged Carter, a former Dollar General employee, with aggravated robbery in violation of K.S.A. 2011 Supp. 21-5420(b)(1). The State alleged that Carter robbed Kaylan Sanders "by force or threat of bodily harm ... while [Carter] was armed with a dangerous weapon, to-wit: stun gun or Taser." The case proceeded to a jury trial, in which the State's theory was that Reyes was Carter's accomplice while Sanders was not.
At trial, Reyes denied that she was involved in the planning or execution of the crime and denied that Carter was the robber. Reyes testified that after the robber entered the store and was walking towards the safe, she noticed the robber "had something in his hands, but I wasn't sure what it was at the time." She said she was fearful the robber would hurt her and Sanders if they did not give the robber the money. She said, Later, she said that when the robber first came into the store, she She agreed that she was "certain that the robber had a weapon" and that the robber showed it to her.
Sanders testified that she did not see the Taser until after she and Reyes had handed over the money from the store's safe. Once she and Reyes put the money in the robber's bag, she said, Sanders believed that the robber was going to tase her. She also testified that the robber pulled the Taser out "almost as if they were pulling it out to show us that they have it."
After the jury convicted Carter of aggravated robbery, the district judge imposed a downward departure sentence of 36 months in prison. The district judge then asked, "Is there anything further we need on the record?" The State replied:
The district judge checked a box on Carter's journal entry of sentencing form stating: "Offender committed the current crime with a deadly weapon as determined by the court." The journal entry also set out that the reason for Carter's registration requirement was: "Any conviction of a person felony with court finding on the record that such felony was committed with a deadly weapon— K.S.A. 2012 Supp. 22-4902(e)(2)." Nothing in the record shows Carter objected to the oral pronouncement or the journal entry's checked box. Carter's defense counsel signed off on the journal entry.
Carter appealed her conviction and the district judge's order that she register under KORA. A panel of our Court of Appeals affirmed Carter's conviction but held that she was not required to register under KORA because, the panel concluded, Carter did not use a deadly weapon during the robbery. State v. Carter , 55 Kan. App. 2d 511, 519, 419 P.3d 55 (2018).
Both parties petitioned for review. This court granted only the State's petition and ordered the parties to address whether, given this court's holding in State v. Thomas , 307 Kan. 733, 750, 415 P.3d 430 (2018), the Court of Appeals had jurisdiction to address the registration requirement at all.
As an initial matter, we agree with the parties that we have appellate jurisdiction over the registration issue under K.S.A. 2019 Supp. 22-3602(a). See State v. Marinelli , 307 Kan. 768, 786, 415 P.3d 405 (2018) (); Thomas , 307 Kan. at 750, 415 P.3d 430.
KORA requires individuals convicted of certain crimes to register with the State. One category of individuals required to register are "violent offenders." KORA provides multiple ways in which a person may qualify as a "violent offender" and thus be subject to the Act's registration requirement. The relevant section here is K.S.A. 2019 Supp. 22-4902(e)(2), which defines a violent offender as a 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." (Emphasis added.)
Carter attacks her registration requirement in three ways. First, she argues that she was not required to register because the district judge found only that a dangerous weapon was involved in her crime, not that she used a deadly weapon in the commission of the crime, which was the finding required by the applicable statute. Second, she argues there was no evidence in the record to support a finding that she used a deadly weapon . Third, she argues that the district judge's fact-finding violated Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We address each argument in turn.
Recent decisions of this court have made it clear that a district judge must make a finding on the record before a KORA obligation to register as a violent offender arises. See Marinelli , 307 Kan. at 784, 415 P.3d 405 ; Thomas , 307 Kan. at 748-49, 415 P.3d 430.
In Thomas , decided the same day as Marinelli , a jury convicted Sheena Thomas of aggravated battery with a deadly weapon for attacking another woman with a stiletto heel. The district judge did not inform Thomas of a KORA registration requirement at the time of her conviction. At sentencing, the district judge told Thomas she must register, but at no time did the district judge make a finding on the record that Thomas used a deadly weapon in the commission of the crime. There was no oral pronouncement; nor did such a finding appear in the journal entry of sentencing. The Court of Appeals panel held that the district judge's failure to make the finding meant Thomas could not be required to register, and it vacated "that portion of [her] sentence" and remanded for the district judge to make the necessary finding. 307 Kan. at 746, 415 P.3d 430.
A majority of this court decided in Thomas that the Court of Appeals remand order was error. That majority, building on earlier decisions holding that an obligation to register under KORA does not qualify as punishment, see, e.g., State v. Meredith , 306 Kan. 906, 911, 399 P.3d 859 (2017), ruled that the necessary violent offender finding was not part of Thomas' sentence. Further, the district court lost jurisdiction to make the finding when the case was docketed for appeal; and that jurisdiction could not be resuscitated on remand for a belated finding. 307 Kan. at 749-50, 415 P.3d 430.
In this case governed by K.S.A. 2019 Supp. 22-4902(e)(2), the district judge made an oral finding on the record that there "was a dangerous weapon involved" in Carter's crime. This language differed from that required by the statute, but the judge's journal entry included a checked box stating that he found Carter used a deadly weapon in the commission of her crime. Carter's arguments on appeal entirely disregard the journal entry and do not explain why it should not qualify as an adequate KORA finding on the record.
Although Carter might have asserted that a sentence pronounced from the bench typically controls over a differing journal entry, see Abasolo v. State , 284 Kan. 299, Syl. ¶ 3, 160 P.3d 471 (2007), that rule is not applicable here because of the majority holding in Thomas that registration is not part of a defendant's sentence.
In the absence of any other argument from Carter to the contrary, we hold that the journal entry included in the record of this case shows the district judge made the necessary finding under K.S.A. 2019 Supp. 22-4902(e)(2). Thus Carter's first challenge to her registration requirement fails.
Carter contends that no evidence supports the district judge's finding that she used a deadly weapon in the commission of the robbery. She asks this court to interpret the meaning of "deadly weapon" and "used" in K.S.A. 2019 Supp. 22-4902(e)(2).
To the extent these arguments require us to engage in statutory interpretation, de novo review applies. State...
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State v. Unruh
.... . . or intermediate order made in the progress of the case'" under K.S.A. 2018 Supp. 22-3602[a]). In State v. Carter, 311 Kan. 206, 209, 459 P.3d 186 (2020), our Supreme Court extended the holding in Marinelli and considered Carter's registration challenge even though she did not object t......
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State v. Unruh
.... . . or intermediate order made in the progress of the case'" under K.S.A. 2018 Supp. 22-3602[a]). In State v. Carter, 311 Kan. 206, 209, 459 P.3d 186 (2020), our Supreme Court extended the holding in Marinelli and considered Carter's registration challenge even though she did not object t......