State v. Chambers

Decision Date21 July 2006
Docket NumberNo. 93,626.,93,626.
Citation138 P.3d 405
PartiesSTATE of Kansas, Appellee. v. Brent K. CHAMBERS, Appellant.
CourtKansas Court of Appeals

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

Jan Satterfield, county attorney, and Phill Kline, attorney general, for appellee.

Before BUSER, P.J., LARSON, S.J., and WAHL, S.J.

BUSER, P.J.

Brent K. Chambers appeals from the district court's order that he register as a sex offender pursuant to the Kansas Offender Registration Act, K.S.A.2005 Supp. 22-4901 et seq. (KORA). Chambers also appeals from the district court's restitution orders. We affirm in part and reverse in part.

Factual and Procedural Background

In December 2003, Chambers was charged in Butler County with two counts of burglary, two counts of misdemeanor theft, and one count of misdemeanor criminal damage to property. The information alleged in part that Chambers had entered two residences with the intent to commit theft and had stolen women's lingerie.

Eight days later, Chambers was charged in another Butler County case with two counts of burglary to a dwelling with the intent to commit theft and had stolen women's lingerie. Both cases were ultimately consolidated.

From the inception of the litigation, the State made clear its contention that "[t]his is a sexually motivated offense." The State repeated its contention at the plea hearing in March 2004, advising the district court it would seek registration of Chambers as a sex offender pursuant to the KORA. Chambers pled guilty to the burglary counts, and the State dismissed the remaining misdemeanor counts. In stating the factual basis for his pleas, Chambers said he entered the residences to look for undergarments, he took all the "ladies underwear, undergarments" that he could find, and then went home. Because the parties could not agree on the sex offender registration issue, the State indicated "the court will have to determine same at the time of sentencing."

In April 2004, the State filed a "Notice of Allegation of Sexually Motivated Crime." The State requested that "the Court, as trier of fact, hear evidence at time of sentencing to determine whether [Chambers] was sexually motivated when he committed the crimes of burglary beyond a reasonable doubt pursuant to K.S.A. 59-29a14 and/or K.S.A. 22-4901 et seq."

The sentencing hearing was held in May 2004. Two witnesses testified in support of a finding that the crimes were sexually motivated. The first, Detective Tracy Burnett testified on behalf of the State regarding his interview of Chambers following the offenses. During this interview, Chambers admitted he had stolen the undergarments in order to take them home and masturbate with them. Detective Burnett testified that masturbation was the only motive Chambers gave for the thefts.

A therapist, Jennifer Reid, LCSW, testified she had treated Chambers since 1999. Reid first met Chambers when he was admitted to an adolescent sex offender program "after he had perpetrated similar acts in Hutchinson." Reid testified that Chambers had a number of diagnoses, including "[o]bviously . . . a fetish disorder, which is the stealing of women's undergarments." Other diagnoses included "a voyeurism diagnosis," an indication of attention deficit hyperactivity disorder, bipolar disorder, somatoform disorder, impulse control disorder, a differential diagnosis of posttraumatic stress disorder, and personality disorder not otherwise specified.

Reid opined that Chambers' behavior would not progress to more violent acts because "I've known [Chambers] for four or five years now and his arousal patterns have not changed, his fantasies have not changed, the material to which he masturbates has not changed, it's pretty consistent." Reid testified Chambers would need therapy "[t]wo years minimum. Likely forever." She characterized the instant crimes as a relapse, saying, "It's kind of like alcoholism; it's going to have to be monitored forever." Reid also stated Chambers has a history of not taking his medication, and that "[h]e has to take his medication. He cannot go off of these unless it's determined appropriate by the treatment team."

When asked, "[A]lthough these crimes are burglaries, you would agree that these are sexual in nature?" Reid answered, "Yes."

The sentencing judge also took testimony from the victims on the amount of restitution. The victims gave the cost to replace the stolen lingerie, and they agreed with the State that it would be difficult to put a market value on used lingerie. One parent also testified to the installation of a $350 security system in their home because "we live across the street from this young man, and our 13-year-old will not stay home by herself anymore."

The sentencing judge imposed a base sentence of 32 months' imprisonment, but pursuant to the sentencing guidelines placed Chambers on a 24-month probation. In addition to conditions of probation, Chambers was ordered to pay a total of $1,225 in restitution, which included the cost of the security system installed by one of the victim families.

In July 2004, in a continuation of the sentencing hearing, the judge found Chambers' crimes were sexually motivated and ordered that he register as a sex offender. Chambers appeals.

Constitutionality of K.S.A.2005 Supp. 22-4901 et seq. (KORA)

The KORA requires registration of offenders. K.S.A.2005 Supp. 22-4904(a)(1), (a)(3) and (a)(4). An "offender" includes any person defined as a "sex offender." K.S.A.2005 Supp. 22-4902(a)(1) and K.S.A.2005 Supp. 22-4904(a)(1). A sex offender includes persons convicted of a "sexually violent crime." K.S.A.2005 Supp. 22-4902(b). "Sexually violent crime" is defined in part by listing specific offenses which include, among other crimes, rape, aggravated indecent liberties with a child, criminal sodomy, and aggravated sexual battery. See K.S.A.2005 Supp. 22-4902(c)(1), (3), (4), and (10). Burglary is not specifically listed as a sexually violent crime under any of this statute's provisions.

K.S.A.2005 Supp. 22-4902(c)(14), however, includes as a sexually violent crime:

"[A]ny act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated. As used in this subparagraph, `sexually motivated' means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant's sexual gratification."

As noted earlier, the sentencing judge found beyond a reasonable doubt the burglaries Chambers committed were sexually motivated. Chambers argues that "[b]ecause K.S.A.2003 Supp. 22-4902(c)(14) allows the punishment for a conviction to be enhanced after factual findings by the court, rather than a jury, it is unconstitutional under the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)." This issue is one of first impression in Kansas.

Chambers' constitutional challenge to the KORA is a question of law subject to unlimited review. See State v. Carr, 274 Kan. 442, 444-45, 53 P.3d 843 (2002). At the outset, "[w]hen we are presented with a claim that a statute is unconstitutional, our initial inquiry is to search for a way to uphold the statute. [Citation omitted.]" State v. Gould, 271 Kan. 394, 405, 23 P.3d 801(2001). An appellate court must always remember "our longstanding and well-established rules that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and that before a statute may be struck down, it must clearly appear that the statute violates the Constitution. [Citation omitted.]" In re Care & Treatment of Hay, 263 Kan. 822, 831, 953 P.2d 666 (1998).

In Gould, our Supreme Court applied Apprendi to K.S.A.2000 Supp. 21-4716, a statute permitting upward durational departures if certain facts were found by the sentencing judge. 271 Kan. at 410-11, 23 P.3d 801. Our Supreme Court concluded that Apprendi recognized a constitutional "guarantee" 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.' [Citation omitted.]" 271 Kan. at 405-06, 23 P.3d 801. The court reasoned that "Gould's jury verdict `authorized' a sentence of 31 to 34 months for each child abuse conviction. By imposing two 68-month sentences, the district court went beyond the maximum sentence in the applicable grid box and exposed Gould to punishment greater than that authorized by the jury's verdict." 271 Kan. at 410-11, 23 P.3d 801. Accordingly, our Supreme Court held K.S.A.2000 Supp. 21-4716 violated the "notice and jury trial guarantees of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment" because, under Apprendi, a "judge may not impose a more severe sentence than the maximum sentence authorized by the facts found by the jury." 271 Kan. 394, Syl. ¶¶ 2, 4, 23 P.3d 801.

Although Gould's convictions were determined by a jury, and in the present case Chambers' convictions resulted from guilty pleas, that fact alone does not change the analysis under Apprendi. See Blakely v. Washington, 542 U.S. 296, 299-301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (applying Apprendi analysis to sentence enhancement ordered by a sentencing judge who found additional facts not admitted to in a guilty plea); State v. Cody, 272 Kan. 564, Syl. ¶ 1, 35 P.3d 800 (2001) (Under Apprendi, a plea of guilty does not waive due process rights.).

A line of cases have applied Apprendi and Gould to sentence enhancement for sexually motivated crimes. In State v. Anthony, 273 Kan. 726, 45 P.3d 852 (2002), our Supreme Court considered an increase in postrelease supervision ordered by the district court upon a jury conviction for aggravated indecent liberties with a child. The court began its analysis by observing that "[p]ostrelease...

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