State v. Coman, 100,494.

Citation273 P.3d 701
Decision Date30 March 2012
Docket NumberNo. 100,494.,100,494.
PartiesSTATE of Kansas, Appellee, v. Joshua B. COMAN, Appellant.
CourtUnited States State Supreme Court of Kansas


Syllabus by the Court

1. Under Kansas appellate procedure, the appellate court has authority to review only those rulings reasonably identified in the notice of appeal.

2. A defendant who pleads guilty waives any prior irregularities in the proceedings and such a defendant may not directly appeal his or her conviction without first filing a motion to withdraw plea in the district court.

3. To challenge the constitutionality of a statute, the appellant must have been directly affected by the alleged defect, and he or she does not have standing to argue that a statute is unconstitutional as applied to third parties in hypothetical situations.

4. An ambiguity can arise in a statutory provision because it conflicts with another statute or with another provision of the same statute, and in that event the canons of statutory construction must be applied and legislative history may be consulted for indications of legislative intent. A reviewing court must consider the various provisions of an act in pari materia with a view to reconciling and bringing the provisions into workable harmony, if possible.

5. Under the rule of lenity, criminal statutes must be strictly construed in favor of the defendant. Any reasonable doubt as to the meaning of a criminal statute is decided in favor of the accused, subject to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.

6. A person who commits misdemeanor criminal sodomy, as defined in K.S.A. 21–3505(a)(1), is not required to register as a sex offender under the provisions of either K.S.A. 22–4902(c)(4) or (c)(14). Rather, the provisions of K.S.A. 22–4902(a)(5)(B) govern when a person who has violated K.S.A. 21–3505(a)(1) must register under Kansas Offender Registration Act.

Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, argued the cause, and Carl F.A. Maughan, of the same firm, was with her on the briefs for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, were with him on the brief for appellee.

The opinion of the court was delivered by JOHNSON, J.:

Joshua Coman pled guilty to misdemeanor criminal sodomy, as defined in K.S.A. 21–3505(a)(1), based upon an incident with a dog. The Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , requires registration for those who commit sexually violent crimes. KORA's definition provision, K.S.A. 22–4902, includes a list of crimes that are per se “sexually violent crimes,” i.e., crimes which always require KORA registration. But the list, under K.S.A. 22–4902(c)(4), only includes felony criminal sodomy as defined in K.S.A. 22–4902(a)(2) and (3), and omits the misdemeanor criminal sodomy for which Coman was convicted. Nevertheless, in addition to specifically named crimes, the list includes a catch-all provision under K.S.A. 22–4902(c)(14), which requires registration for those committing sexually motivated acts. The district court found that Coman was required to register because the act giving rise to his conviction for the unlisted version of criminal sodomy was sexually motivated. Coman appealed, and a divided Court of Appeals panel affirmed the district court's registration order. State v. Coman, 42 Kan.App.2d 592, 214 P.3d 1198 (2009). We granted review. Construing the applicable statute as a whole, we hold that the legislature did not intend to include the acts constituting the sex crime defined in K.S.A. 21–3505(a)(1) to be included within the catch-all provisions of K.S.A. 22–4902(c)(14). Accordingly, we reverse both the Court of Appeals and the district court.

Factual and Procedural Overview

Coman had previously been a roommate of Diana Sells, who had a Rottweiler dog. Sells discovered Coman in her garage with the dog in a compromising position. Coman told Sells that he loved the dog and wanted to see it one more time. Sells called the police, who discovered personal lubricant in Coman's pocket. Coman admitted to the officers that he used the lubricant to penetrate the dog's vagina with his finger.

Ultimately, Coman pled guilty to one count of criminal sodomy as defined in K.S.A. 21–3505(a)(1), a class B misdemeanor. In the process of sentencing Coman, the district court found that Coman's acts supporting the conviction were sexually motivated and that, pursuant to K.S.A. 22–4902(c)(14), Coman was required to register under KORA.

Coman appealed to the Court of Appeals, stating in his notice of appeal that he was appealing “from the sentence imposed” and specifically describing the subject matter of the appeal as being “that part of the Sentence which requires this Defendant to register as a sex offender, pursuant to the Kansas Sex Offender Registration Act.” But in briefing the case, Coman raised two issues: (1) The KORA should not be construed to require him to register as a sexually violent offender; and (2) the crime of criminal sodomy described in K.S.A. 21–3505(a)(1) violates both the United States and the Kansas Constitutions.

The Court of Appeals declined to consider the merits of Coman's constitutional challenge to K.S.A. 21–3505(a)(1) because of multiple procedural bars. The panel pointed out that the notice of appeal stated that Coman was only appealing his sentence, not his conviction. Further, Coman pled guilty to the crime, which waives any defects or irregularities in the proceedings, including those of constitutional dimension. Finally, the panel opined that Coman's failure to move to withdraw his guilty plea precluded him from seeking relief from his conviction for the first time on appeal. Coman, 42 Kan.App.2d at 594, 214 P.3d 1198.

With respect to the registration issue, a majority of the Court of Appeals panel found no ambiguity in K.S.A. 22–4902. Rather, it construed the catch-all provision of subsection (c)(14) to mean that any sexually motivated act may render a crime sexually violent, regardless of whether the committed crime has been specifically omitted from the list of per se sexually violent crimes in another subsection of the statute. The majority believed that omitting a crime from the per se list simply meant that no registration was required for the omitted crime without the additional showing of sexual motivation. Moreover, the majority opined that to hold otherwise and exclude unlisted sex crimes from the provisions of subsection (c)(14) would render that catch-all provision meaningless. 42 Kan.App.2d at 597–99, 214 P.3d 1198.

Even though the majority found no ambiguity in the registration statute, it discussed the rule of lenity. That rule provides that any reasonable doubt as to the meaning of a criminal statute is resolved in favor of the accused. But the majority declared that the rule of lenity may not be invoked where there is a reasonable and sensible judicial interpretation of the statutory provision that will effect legislative design. 42 Kan.App.2d at 597, 214 P.3d 1198.

The dissent agreed that the language of subsection (c)(14) could be read, as the majority did, to include Coman's conduct because it was a sexually motivated act. But the dissent noted that reading subsection (c)(14) to include sex crimes that were not listed as automatically requiring registration would render the list superfluous. The apparent suggestion is that, given that all sex crimes are sexually motivated, applying the sexually motivated act definition of subsection (c)(14) to all sex crimes renders the per se list meaningless because registration will always be required for sex crimes, whether listed or unlisted. The dissent pointed out that, in applying canons of statutory construction, courts should read each section of a statute as adding new meaning, rather than reading a subsequent provision as being redundant to a prior provision. 42 Kan.App.2d at 603, 214 P.3d 1198 (Leben, J., dissenting).

Further, the dissent noted that the maxim, expressio unius est exclusio alterius, should be applied to the text of the registration statute. Courts apply that maxim to presume that when the legislature includes specific items in a statutory list, it intends to exclude similar items not expressly listed. In this instance, the dissent opined that the legislature meant something when it included two of the three subsections of the sodomy statute in the per se list, but excluded the third version of the crime. The dissent bolstered that view by observing that one manner in which to commit the crime that was omitted from the list of sexually violent crimes, i.e., K.S.A. 21–3505(a)(1), is to engage in consensual gay sex which is in no way inherently violent. Likewise, the dissent noted that no other subsection in the K.S.A. 22–4902(c) list of per se sexually violent crimes divided a crime between included and omitted ways in which to commit the crime, i.e., criminal sodomy was singled out for special treatment. 42 Kan.App.2d at 603–04, 214 P.3d 1198 (Leben, J., dissenting).

The dissent then embarked on an extensive review of the lengthy and sometimes convoluted legislative history of the registration statute, concluding that the legislature might well have intended the catch-all provision to apply only to nonsex crimes. Its review of case precedent uncovered nothing to refute that interpretation. Ultimately, the dissent determined that the legislature specifically intended to exclude the K.S.A. 21–3505(a)(1) version of criminal sodomy from the registration requirement of K.S.A. 22–4902(c)(4) and that the rule of lenity will not permit the general catch-all provision of subsection (c)(14) to override that exclusion. 42 Kan.App.2d at 604–07, 214 P.3d 1198 (Leben, J., dissenting).

Coman petitioned for review, ostensibly raising three issues: (1) whether the court erred in requiring Coman to register as a sex...

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