State v. Hand

• Docket Number: 122,821
• Decision Date: 30 December 2021
• Parties: State of Kansas, Appellee, v. Timothy Ray Hand, Appellant.
• Court: Kansas Court of Appeals

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State of Kansas, Appellee, v. Timothy Ray Hand, Appellant.

No. 122, 821

Court of Appeals of Kansas

December 30, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Shawnee District Court; Nancy E. Parrish, judge.

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidtattorney general, for appellee.

Before Arnold-Burger, C.J., Atcheson and Hurst, JJ.

MEMORANDUM OPINION

ATCHESON, J.

Six years after DefendantTimothy Ray Hand successfully completed his probation for several felony drug convictions, a representative of the Shawnee County Sheriff's Department told him he was supposed to be reporting under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq.That came as news to Hand.With the assistance of the public defender's office, he filed a motion with the Shawnee County District Court to be relieved of those registration and reporting obligations because of the State's long delay in informing him.Hand rested his claim on the equitable doctrine of laches, and in a world of poetic justice, he might have had a point.But we apply the law in a prose forum.The district court denied the motion.We find no error and affirm.

Factual and Procedural History

In 2011, the State charged Hand with multiple felony drug crimes.Under an agreement with the State, Hand pleaded guilty to four counts of possession with the intent to distribute or distribution of crack cocaine.The State dismissed other charges and agreed to join in a recommendation for probation.The district court followed the agreement by imposing a prison sentence and placing Hand on probation.The convictions rendered Hand a "drug offender," requiring him to register and report under KORA.SeeK.S.A. 2020 Supp. 22-4902(f)(defining "drug offender");K.S.A. 2020 Supp. 22-4905(registration requirements for "any offender," including drug offenders).Hand successfully completed the probation in 2013 and was discharged from the criminal sentence.

For purposes of this appeal, the undisputed evidence shows that neither the district court nor any probation officer informed Hand of his duty to register and report under KORA, although the journal entry of judgment notes the obligation on the last page of the 12-page document.Hand did not register or report.

In 2019, the Kansas Bureau of Investigation forwarded a tip that Hand was not complying with KORA to Shawnee County Sheriff's Deputy Ashley Previty, who oversees registration and reporting of offenders for the County.Previty contacted Hand and informed him he had not been complying with KORA.Hand registered and has been duly reporting since then.

On January 13, 2020, the Shawnee County Public Defender filed a two-page motion in the criminal case asking the district court to relieve Hand of any obligation to register or report under KORA based on laches.The State did not file a written response to the motion.The district court held an evidentiary hearing on March 3 at which Hand and Deputy Previty were the only witnesses.Neither the State nor the district court questioned the procedural propriety of the motion.Hand testified that he had never been informed of any KORA obligations until Deputy Previty contacted him in 2019.He told the district court that he owns and operates a moving company in the Shawnee County area and fears potential customers will not hire the company if they find out he is a registered drug offender.

The district court filed a memorandum and order on March 27 denying Hand's motion.Hand has appealed.

Legal Analysis

We do not see any dispute about the material facts bearing on the district court's ruling denying Hand relief from the requirements of KORA.The question, then, becomes one of law that we consider without any particular deference to the district court.SeeEstate of Belden v. Brown County, 46 Kan.App.2d 247, 258-59, 261 P.3d 943(2011)(legal effect of undisputed facts presents question of law decided without deference to district court).

Laches Considered and Rejected

Hand's argument for avoiding KORA registration and reporting based on laches fails for several reasons:

• Laches is an equitable doctrine that precludes a party from asserting a right after an unreasonable delay when the responding party has been prejudiced because of the delay.State ex rel. Stovall v. Meneley, 271 Kan. 355 388-89, 22 P.3d 124(2001);

Nguyen v. Huynh, No. 118, 709, 2018 WL 4039396, at *2(Kan. App.2018)(unpublished opinion)("Laches steps in to prevent one party from enforcing a right against another party when the first party has inordinately delayed in asserting the right to the actual detriment of the obligated party.").The basis for relief lies in showing prejudice from the delay itself.Meneley, 271 Kan. at 389;Darby v. Keeran, 211 Kan. 133, 140, 505 P.2d 710(1973).To invoke laches, Hand would have to establish some prejudice or harm to him from the State's six-year delay in advising him he had to comply with KORA.

Hand testified KORA registration likely would damage his moving business because people would not want to hire him if they were aware he had been statutorily branded as a drug offender.Apart from being speculative, the described harm would flow from registration itself and not the State's delay.Laches does not redress the harm Hand has postulated and, therefore, is inapplicable.Hand has not argued prejudice because he would have sought out some other line of work had he been registering and reporting in compliance with KORA since 2011.

• As set out in Meneley, laches cannot be invoked against the State to negate governmental functions undertaken to promote the public good or welfare.271 Kan. at 389.The Kansas Supreme Court has identified the purpose behind KORA as such a public good.SeeState v. Stoll, 312 Kan. 726, 732, 480 P.3d 158("KORA's purpose is to protect the public from certain offenders by requiring those offenders to register.").So laches, as a general rule of equity, cannot override a specific government undertaking directly advancing the Legislature's perception of the commonweal.

• KORA itself provides a court cannot issue "an order relieving the offender of further registration under this act."K.S.A. 22-4908.Although the prohibition may have been designed to preclude "early release" of a KORA registrant for good behavior or demonstrable rehabilitation, its broad language reaches and negates Hand's request for equitable relief.Statutory directives typically oust conflicting common-law doctrines.SeeStanley v. Sullivan, 300 Kan. 1015, 1018, 336 P.3d 870(2014).Laches, as a common-law rule, typically should yield to a specific statute such as K.S.A. 22-4908.SeeBarnes v. Gideon, 224 Kan. 6, 9, 578 P.2d 685(1978)(recognizing laches as common-law rule).Hand has offered no compelling argument otherwise.

The dissent would read the prohibition in K.S.A. 22-4908 as depriving the district court of subject matter jurisdiction to consider any cause of action challenging a person's continuing obligation to register under KORA.But that misreads the statutory language.The statute precludes a court from granting a registrant affirmative relief from having to comply with KORA going forward, as Hand has requested here.But the statute does not purport to do so by depriving district courts of subject matter jurisdiction.We should not impute such a sweeping bar into the much narrower language of K.S.A. 22-4908.SeeChalmers v. Burrough, 314 Kan. 1, 11, 494 P.3d 128(2021)(statute typically does not deprive district court of general or subject matter jurisdiction absent "explicit" restrictive language).The Chalmers court cited statutes that preclude a party from initiating an action without having satisfying identified conditions precedent as measures that restrict general jurisdiction.314 Kan. at 10-11.The legislative directive in K.S.A. 22-4908 is materially more constrained.If the dissent were correct, we should vacate the district court's order for lack of jurisdiction and then dismiss this appeal for the same reason.

Each of the reasons we have identified presents a sufficient ground standing alone to affirm the district court.

KORA as Punishment-Ode to a Higher Authority

For the first time on appeal, Hand also argues that KORA registration and reporting constitutes punishment, so the district court's failure to inform him of those obligations when he pleaded guilty or was sentenced excuses his compliance.Hand concedes his argument cannot be reconciled with State v. Carter, 311 Kan. 206, 210-11, 459 P.3d 186(2020), recognizing that a district court need not make a "deadly weapon" finding from the bench as a necessary condition for KORA registration and reporting, as long as the finding appears in the journal entry of conviction.In reaching that conclusion, the Carter court restated that KORA registration and reporting neither imposes punishment nor constitutes part of a criminal defendant's sentence.311 Kan. at 210.

Hand submits Carter was wrongly decided and should be overruled.He acknowledges we are simply a way station on the journey to the Kansas Supreme Court to make that request.We have no authority to disregard Carter, let alone overrule it.SeeState v. Meyer, 51 Kan.App.2d 1066, 1072, 360 P.3d 467(2015).We, therefore, necessarily reject Hand's argument.

An Appeal Taken and Resolved

In wrapping up our review, we mention the odd procedural progression of Hand's claim for relief.The claim began as a motion in the criminal case that has no real analog in the Kansas Code of Criminal Procedure.Hand neither sought to withdraw his pleas nor to challenge the legality of his...