State v. Huey

• Court: United States State Supreme Court of Kansas
• Citation: 399 P.3d 211
• Docket Number: No. 109,690,109,690
• Parties: STATE of Kansas, Appellee, v. Darnell Lee HUEY, Appellant.
• Decision Date: 11 August 2017

399 P.3d 211

STATE of Kansas, Appellee,
v.
Darnell Lee HUEY, Appellant.

No. 109,690

Supreme Court of Kansas.

Opinion filed August 11, 2017

Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Jodi E. Litfin, deputy district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

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

Any fact necessary to increase the punishment for an offense other than a prior conviction must be established by a guilty plea or proved beyond a reasonable doubt to a jury. United States v. Booker , 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ; see also Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In this case, Darnell Lee Huey pleaded guilty to robbery and aggravated burglary and was ordered to register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq ., after a district court judge found he used a

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deadly weapon to commit those offenses. This fact was not established by Huey's guilty pleas. On appeal, Huey argues the registration requirement violates the Booker / Apprendi rule because the fact that he used a deadly weapon should have been found by a jury. The persuasiveness of his challenge turns on whether KORA's requirements constitute punishment for his crimes.

This court has previously held that KORA's deadly weapon finding must be admitted through a guilty plea or submitted to a jury because KORA's requirements constitute punishment as applied to individuals required to register on the basis of such a finding. See State v. Charles , 304 Kan. 158, 177, 372 P.3d 1109 (2016). But, as noted in Charles , its application in subsequent appeals was in doubt because, on the same day it was decided, this court overruled the caselaw on which it relied, holding in State v. Petersen–Beard , 304 Kan. 192, 209, 377 P.3d 1127, cert. denied ––– U.S. ––––, 137 S.Ct. 226, 196 L.Ed.2d 175 (2016), that KORA registration for sex offenders was not cruel and unusual punishment under the Eighth Amendment to the United States Constitution. See Charles , 304 Kan. at 179, 372 P.3d 1109 (acknowledging Petersen–Beard "may influence whether the KORA holding of this case is available to be relied upon by violent offenders whose appeals have yet to be decided").

As signaled in the Charles decision, we now hold Charles is not viable authority for Huey or other violent offenders as to whether KORA is punitive. That issue may be resolved only upon an evidentiary record supplying the clearest proof to overcome the legislature's intent that KORA be a regulatory scheme that is civil and nonpunitive. Huey raised his challenge as to KORA's claimed punitive nature for the first time on appeal and did not develop an evidentiary record in the district court. And without that, we cannot conduct the appropriate analysis to determine KORA's alleged punitive effects on violent offenders such as Huey. Accordingly, we affirm the offender registration order. See State v. Meredith , 306 Kan. ––––, 399 P.3d 859, 864, (No. 110520, filed August 4, 2017).

FACTUAL AND PROCEDURAL BACKGROUND

Huey forced his way into an apartment using what was described as a " ‘skinny weapon’ that had a pistol grip in the front and rear." He demanded money from the occupants. When police arrived, Huey was seen fleeing with property belonging to the resident. He was eventually apprehended—but no weapon was found.

Huey was charged with aggravated burglary, aggravated robbery, theft, and criminal possession of a firearm. He agreed to plead guilty to aggravated burglary and to a reduced charge of robbery. In exchange, the State agreed to dismiss the remaining counts and filed an amended complaint as part of the agreement. The revised charges to which Huey pleaded guilty did not allege he used a "deadly weapon" to commit either offense.

At the plea hearing, the State explained to the district court that the evidence would show Huey "entered the residence without permission," "made a demand ... wanting some money," and "by force or threat of force took property belonging to [the victim], specifically he took a couple of bottles of prescription medication ...." The State asked the court to take judicial notice of the evidence presented at the preliminary hearing.

The court accepted the pleas and found Huey guilty, but it did not at that time inform him of any duty to register under KORA. Similarly, KORA registration was not mentioned in the written plea agreement. The district court sentenced Huey to concurrent sentences of 57 months' imprisonment for the robbery conviction and 32 months for the aggravated burglary conviction. It ordered the sentences to run consecutive to another sentence imposed in a separate Shawnee County case. As to offender registration, which is the subject of this appeal, the State argued,

"I believe this Court did hear the evidence that was presented at the preliminary hearing. I believe there is sufficient evidence for the Court to make that finding beyond a reasonable doubt that a firearm was used in the commission of the crime and that the defendant should be required to register as a violent offender. Those

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would be the recommendations of the State."

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