State v. Ford

Decision Date19 July 2019
Docket NumberNo. 119,328,119,328
Parties STATE of Kansas, Appellee, v. Tyler Lee FORD, Appellant.
CourtKansas Court of Appeals

444 P.3d 379 (Table)

STATE of Kansas, Appellee,
v.
Tyler Lee FORD, Appellant.

No. 119,328

Court of Appeals of Kansas.

Opinion filed July 19, 2019


Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Schroeder, P.J., Green and Powell, JJ.

MEMORANDUM OPINION

Per Curiam:

Tyler Lee Ford appeals the district court's order requiring that he register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., after his conviction for robbery. Ford makes several constitutional arguments, all of which are raised for the first time on appeal. First, Ford contends the district court violated his due process rights when it required him to register as a violent offender without notice or an opportunity to be heard. Second, Ford claims KORA unconstitutionally violates offenders' due process rights by failing to establish the State's burden of proof or a process by which to contest the district court's factual findings creating a duty to register. And third, Ford alleges the district court unlawfully increased his punishment based on improper judicial fact-finding in violation of his constitutional rights as recognized in Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed. 2d 435 (2000). After carefully considering Ford's arguments, we are unpersuaded by them and affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND

On October 11, 2017, Ford robbed a convenience store. Ford entered the convenience store, pointed a handgun at the store clerk, and demanded money. The store clerk gave Ford about $132, which included a marked $2 bill. After receiving information concerning Ford's involvement with the robbery, officers obtained a warrant to search Ford's residence. While searching Ford's residence, officers found a loaded handgun and the marked $2 bill.

Ford was arrested and subsequently charged with aggravated robbery while armed with a dangerous weapon. As part of a plea agreement with the State, Ford waived his preliminary hearing and pled guilty to an amended charge of simple robbery, a severity level 5 person felony. The amended complaint did not state that Ford used a gun or another deadly weapon during the commission of the robbery. When giving the factual basis for the plea, the State explained that Ford pointed a black semiautomatic handgun at the store clerk and demanded money. The State also noted that officers located a .22-caliber black Ruger handgun with a loaded magazine in Ford's residence. The district court determined a factual basis existed for the plea and found Ford guilty of robbery. The district court did not inform Ford of his duty to register.

Prior to sentencing, a presentence investigation (PSI) report revealed that Ford's criminal history included four convictions of automotive burglary and a conviction of aggravated battery. The PSI also indicated that a special sentencing rule applied because Ford's crime of conviction was a "person felony committed with a firearm." When a firearm is used to commit a person felony, the sentence is presumptive imprisonment. K.S.A. 2018 Supp. 21-6804(h). The PSI noted that offender registration was required under K.S.A. 2018 Supp. 22-4902. Ford filed a motion for a departure from his presumed sentence.

At sentencing, the State opposed the departure motion, arguing Ford had committed armed robbery and pointed a gun at the clerk's head. The district court denied Ford's departure motion, reasoning: "Not only was this an armed robbery of a Kwik Shop with a gun used, and the court will make the finding of a weapon , you had just got out of prison." (Emphasis added.) The district court sentenced Ford to 57 months in prison with 24 months of postrelease supervision. Again, the district court did not mention registration.

Subsequent to sentencing, a disagreement arose concerning whether the journal entry should reflect that Ford must register as a violent offender because the crime was committed with a deadly weapon. At the hearing to resolve the journal entry, the State argued registration was required because the case involved an armed robbery and the district court "made a specific finding that a dangerous weapon had been involved." Ford's counsel responded: "What I have in my notes, judge, is that the court said the words [‘]that a gun was used in the commission of the crime,[’] but there was no finding that it was a dangerous weapon and there was no finding that it was a registration order."

The district court determined that Ford must register as a violent offender, stating:

"The court specifically found a firearm was used in the commission of the offense. That requires registration....

"... [I]f there's any question whether a gun or a firearm is a dangerous weapon I will say that it is. And under Kansas law registration is required and it's the responsibility of the Department of Corrections to see that that is done."

The district court filed a journal entry which required Ford to register as a violent offender under KORA for 15 years after his release from prison because he committed a person felony with a deadly weapon.

Ford timely appeals.

I. DID THE DISTRICT COURT VIOLATE FORD'S DUE PROCESS RIGHTS BY REQUIRING HIM TO REGISTER AS A VIOLENT OFFENDER ?

Ford complains his due process rights were violated when the district court required him to register as a violent offender because he "had no notice nor meaningful opportunity to be heard on the court's discretionary finding that he register as a violent offender for 15 years for his conviction of robbery, which does not have a weapon as an element of the crime."

A. Should we consider this issue raised for the first time on appeal ?

Ford acknowledges that he raises this due process claim for the first time on appeal. Generally, an issue not raised before the district court—even a constitutional claim—may not be raised for the first time on appeal. State v. Daniel , 307 Kan. 428, 430, 410 P.3d 877 (2018).

"There are three exceptions to this rule: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason." State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Ford correctly argues that we may address the issue for the first time on appeal because such consideration is necessary to serve the ends of justice and prevent the denial of fundamental rights. See State v. Ibarra , 307 Kan. 431, 432, 411 P.3d 318 (2018) ; State v. Carter , 55 Kan. App. 2d 511, 519-20, 419 P.3d 55 (2018), rev. granted 309 Kan. –––– (January 11, 2019).

Under the Fourteenth Amendment to the United States Constitutions, no state may "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. In Carter , the defendant challenged the district court's finding that she used a deadly weapon when committing a crime and, thus, qualified as a violent offender under KORA. Although Carter raised this argument for the first time on appeal, a panel of this court considered her argument "because it presents only an issue of law and because consideration of it is necessary to serve the ends of justice." 55 Kan. App. 2d at 520. Like in Carter , consideration of Ford's due process claim is necessary to serve the ends of justice. Therefore, we will consider it.

Whether a defendant's right to due process was violated is a question of law over which we exercise unlimited review. State v. Hayes , 307 Kan. 537, 538, 411 P.3d 1225 (2018). When reviewing a due process claim, we first determine whether a protected liberty or property interest is involved. If so, we must then determine the nature and extent of the process that is due. Village Villa v. Kansas Health Policy Authority , 296 Kan. 315, 331, 291 P.3d 1056 (2013). Due process is flexible in that not all situations calling for procedural safeguards call for the same kind of procedure. See In re Care & Treatment of Ellison , 305 Kan. 519, 526, 385 P.3d 15 (2016). A due process violation exists only if the claimant is able to show that he or she was denied " ‘a specific procedural protection to which he or she was entitled.’ " In re K.E. , 294 Kan. 17, 22, 272 P.3d 28 (2012).

B. Was Ford given notice and a meaningful opportunity to be heard ?

Accepting at face value Ford's claim that KORA's registration requirements impinge on his protected liberty and property interests, Ford fails to show how the district court denied him a specific procedural protection to which he is entitled.

The basic elements of procedural due process are notice and "the opportunity to be heard at a meaningful time and in a meaningful manner." Ellison , 305 Kan. at 526. "To satisfy due process, notice must be reasonably calculated, under all of the circumstances, to apprise the interested parties of the pendency of an action and to afford the parties an opportunity to present any objections. Mullane v. Central Hanover Tr. Co. , 339 U.S. 306, 314-15, 70 S. Ct. 652, 94 L.Ed. 865 (1950)." Johnson v. Brooks Plumbing , 281 Kan. 1212, 1215, 135 P.3d 1203 (2006).

An individual defined by KORA...

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