State v. Kewish, 092421 KSCA, 121, 793

CourtCourt of Appeals of Kansas
JudgeBefore BRUNS, P.J., GARDNER and CLINE, JJ.
Writing for the CourtPER CURIAM:
PartiesState of Kansas, Appellee, v. David Alan Kewish II, Appellant.
Docket Number793,121

State of Kansas, Appellee,

v.

David Alan Kewish II, Appellant.

No. 121, 793

Court of Appeals of Kansas

September 24, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Kingman District Court; FRANCIS E. MEISENHEIMER, judge.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

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

Before BRUNS, P.J., GARDNER and CLINE, JJ.

MEMORANDUM OPINION

PER CURIAM:

David Alan Kewish II pled no contest to 3 out of 10 charged counts of sexual exploitation of a child. The district court imposed lifetime postrelease supervision, lifetime registration under the Kansas Offender Registration Act, and a presumptive prison sentence under the Kansas Sentencing Guidelines Act. Kewish appeals each of these aspects of his sentence, arguing (1) the court violated Apprendi by engaging in judicial fact-finding to determine his age and impose lifetime postrelease supervision, (2) the court improperly ordered him to register as a sex offender under KORA for the rest of his life, and (3) the court violated his right to a jury trial under section 5 of the Kansas Constitution Bill of Rights by making judicial findings of Kewish's prior convictions to establish his sentence. We find no error and affirm.

FACTS

The State charged Kewish with 10 counts of sexual exploitation of a child in violation of K.S.A. 2018 Supp. 21-5510(a)(2), a severity level 5 person felony. Each count involved possession of child pornography in August 2018. Kewish signed an acknowledgment of plea bargain and rights and entry of plea (plea agreement). He pled no contest to counts 1, 2, and 3 of the complaint and acknowledged that by pleading no contest, he understood he was waiving certain legal rights, including his right to a jury trial. The plea agreement included Kewish's current age, specified the pleas required lifetime registration under KORA, and noted Kewish had received notice of registration duties. The plea agreement did not discuss postrelease supervision, but it provided: "I further understand from my discussions with my attorney, and have been advised by the Court, that this Court may impose against me any or all of the maximum penalties . . . and may take whatever other action the Court may deem appropriate and permitted by law to ensure the public safety if I choose to enter pleas of . . . 'no contest' . . . pursuant to the plea bargain."

A few days after Kewish signed the plea agreement, the district court held a hearing, Kewish waived his right to both a preliminary hearing and a formal arraignment, and asked to move straight to the plea and then schedule sentencing. The judge asked Kewish if he understood the charges against him and possible penalties. Kewish said he did. The judge then discussed Kewish's right to a jury trial with him, stating, "If you plead no contest, you'll be giving up your right to trial. The State is not going to have to present any evidence. There's not going to be a jury and I'm going to find you guilty based upon your no contest plea." Kewish said he understood. The court also told Kewish KORA required lifetime registration for the counts to which he pled.

Kewish pled no contest to counts 1, 2, and 3, as set forth in the complaint. The district court found Kewish guilty of these three counts and dismissed the remaining counts. The judge then asked Kewish if he had reviewed the notice of duty to register and if the personal information set forth in it was accurate. Kewish said he had and confirmed the accuracy of the personal information. Kewish signed the notice of duty to register in front of the court, which listed his date of birth. The court ordered a presentence investigation (PSI) report and set the matter for sentencing.

Before the sentencing hearing, Kewish filed a motion for dispositional departure, asking the district court to place him on probation. Kewish noted that K.S.A. 2018 Supp. 21-6815(c)(1) permits the court to consider mitigating factors to determine whether substantial or compelling reasons for departure exist and then requested such a departure based on a forensic psychological evaluation which reported he had a low risk of reoffending. This evaluation listed Kewish's age and his date of birth.

At the sentencing hearing, the district court found Kewish's criminal history score was E for his primary offense and I for the other two offenses, based on the PSI report. The PSI report also listed Kewish's age and date of birth and noted both offender registration and lifetime postrelease supervision under K.S.A. 2018 Supp. 22-3717(d)(1)(G)(i) were required for each offense. Both parties confirmed no disagreement with the court's findings based on the PSI report.

The district court denied Kewish's dispositional departure request, imposed sentences for each of the three counts, and ordered the sentences to run concurrently for a controlling sentence of 46 months. The court noted all three offenses carried lifetime postrelease supervision, which it ordered. The court also notified Kewish of his duty to register under KORA, due to the nature of his convictions.

ANALYSIS

Kewish raises new legal challenges to the district court's imposition of lifetime postrelease supervision and lifetime KORA registration, as well as the court's determination of his criminal history for purpose of enhancing his sentence. Generally, issues not raised before the district court cannot be raised for the first time on appeal. See State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). Even so, we have recognized limited exceptions to this general rule. Kewish argues two of these exceptions apply here: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case and (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights. See 309 Kan. at 995. While Kewish is correct that all his challenges involve purely questions of law on proved or admitted facts, none of them are finally determinative of the case. Thus, the first exception does not apply. That said, since each of his challenges involves the denial of a fundamental right, we will exercise our discretion to consider Kewish's arguments under this exception.

The district court did not violate Apprendi when it imposed lifetime postrelease supervision based on Kewish's age.

Before we address the merits of Kewish's argument, we must address a jurisdictional challenge raised by the State. The State argues the plea agreement deprives this court of jurisdiction because K.S.A. 2018 Supp. 21-6820(c)(2) does not allow us to review a sentence resulting from an agreement between the State and the defendant. Kewish correctly responds by noting he did not agree to lifetime postrelease supervision in his plea agreement. Since the plea agreement did not discuss the postrelease supervision portion of his sentence, K.S.A. 2018 Supp. 21-6820(c)(2) does not apply. The State also incorrectly argues we lack jurisdiction under K.S.A. 2018 Supp. 22-3602(a), but that statute also does not apply, as section (f) provides that K.S.A. 21-6820 governs this appeal. See K.S.A. 2018 Supp. 22-3602(f) (appeal relating to sentence imposed under revised KSGA governed by K.S.A. 21-6820).

Now, as to the merits of Kewish's argument, we note he was sentenced under K.S.A. 2018 Supp. 22-3717. The subsections relevant to Kewish's argument include: "(d)(1) Persons sentenced to crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons subject to paragraph (G), will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence as follows: ....

"(B) Except as provided in subparagraphs (D) and (E), persons sentenced for nondrug severity levels 5 and 6 crimes . . . must serve 24 months on postrelease supervision. ....

"(G)(i) Except as provided in subsection (u), persons sentenced to imprisonment for a sexually violent crime committed on or after July 1, 2006, when the offender was 18 years of age or older, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life."

(ii) Persons sentenced to imprisonment for a sexually violent crime committed on or after the effective date of this act, when the offender was under 18 years of age, and who are released from prison, shall be released to a mandatory period of postrelease supervision for 60 months, plus the amount of good time and program credit earned and retained pursuant to K.S.A. 21-4722, prior to its repeal, or K.S.A. 2018 Supp. 21-6821, and amendments thereto." K.S.A. 2018 Supp. 22-3717(d)(1)(B), (G)(i)-(ii).

Since the district court found Kewish is over 18 years old, it imposed lifetime postrelease supervision as mandated by K.S.A. 2018 Supp. 22-3717(d)(1)(G)(i).

Kewish argues the district court engaged in improper judicial fact-finding to enhance his sentence, which he claims violated Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi provides 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." 530 U.S. at 490. Kewish contends the default postrelease supervision term for a severity level 5 offense such as his is 24 months under K.S.A. 2018 Supp. 22-3717(d)(1)(B). He asserts the...

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