State v. Marinelli

• Decision Date: 17 April 2015
• Docket Number: 111,227.
• Citation: 347 P.3d 239 (Table)
• Parties: STATE of Kansas, Appellee, v. Christopher MARINELLI, Appellant.
• Court: Kansas Court of Appeals

347 P.3d 239 (Table)

STATE of Kansas, Appellee

v.Christopher MARINELLI, Appellant.

111,227.

Court of Appeals of Kansas.

April 17, 2015.

Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.

Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., GREEN and LEBEN, JJ.

MEMORANDUM OPINION

PER CURIAM.

Christopher Marinelli contends that the trial court erred when it determined that he was required to register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A.2012 Supp. 22–4901 et seq. Marinelli asserts that the trial court erred because he was never told of his duty to register when he was convicted of aggravated assault as required by K.S.A.2012 Supp. 22–4904(a)(1)(A). Moreover, Marinelli asserts that the trial court erred because it failed to make an on the record finding that he had used a deadly weapon in the commission of the aggravated assault as required by K.S.A.2012 Supp. 22–4902(e)(2). Finding no reversible errors, we affirm.

The State charged Marinelli with one count of aggravated assault, a severity level 7 felony, in violation of K.S.A.2012 Supp. 21–5412(b)(1). According to the information, on May 3, 2013, Marinelli put the victim “in reasonable apprehension of immediate bodily harm with a deadly weapon, to wit: a knife.”

Marinelli and the State ultimately entered into a plea agreement. Under the plea agreement, if Marinelli pled guilty or no contest to the one count of aggravated assault, the State agreed to jointly recommend immediate probation, jointly recommend an interstate compact with California, Marinelli's state of residency, and not file any additional charges related to this case. The plea agreement did not mention KORA registration. Marinelli also signed a “Defendant's Acknowledgement of Rights and Entry of Plea” form. In this form, subsection 7 states: “I have been informed that as a result of my plea I will not be required to register as provided by the Kansas Offender Registration Act.”

At the plea hearing, the trial judge read the information on the record, which included the language that Marinelli placed the victim “in reasonable apprehension of immediate bodily harm with a deadly weapon.” After the trial judge read the information, he asked Marinelli if he understood what he had read. Following the plea colloquy, the trial judge accepted Marinelli's no contest plea and found Marinelli guilty of aggravated assault as charged in the information. The trial judge never told Marinelli that he was required to register under KORA. The trial judge made no statements regarding whether Marinelli committed the aggravated assault with a deadly weapon.

At the sentencing hearing, Marinelli's attorney told the trial court that he had some questions about whether the court could order Marinelli to register under KORA. The trial court then sentenced Marinelli to 24 months' probation with an underlying prison sentence of 12 months, addressing the registration issue after a recess. After the recess, Marinelli's attorney objected to the State's assertion that Marinelli must register under KORA. Marinelli's attorney explained that the trial court had failed to notify Marinelli of his duty to register under K.S.A.2012 Supp. 22–4904(a)(1)(A) when he was convicted or make a finding that Marinelli had committed the aggravated assault with a deadly weapon on the record under K.S.A.2012 Supp. 22–4902(e)(2).

The trial court then made the following finding:

“The Court finds that the failure to accomplish this at the time of the conviction was a procedural error and that it does not excuse registration. That registration is required under 22–4902(e)(2). And that the inherent element of the offense of which he was convicted included reasonable apprehension of immediate bodily harm with a deadly weapon and not requiring a further finding. And it may be further practice to make a further finding but that was inherent to this particular offense. The Court will direct registration be ordered, unless you wish to pursue the alternative of asking to withdraw his plea because of the lack of knowledge of the registration requirement.”

Marinelli did not wish to withdraw his plea. The trial judge then signed the order for registration.

Did the Trial Court Err When It Found that Marinelli Was Required to Register Under KORA?

On appeal, Marinelli contends that the trial court erred in determining that he was required to register under KORA because the trial court did not comply with either K.S.A.2012 Supp. 22–4904(a)(1)(A) or K.S.A.2012 Supp. 22–4902(e)(2). As discussed below, the trial court failed to comply with both K.S.A.2012 Supp. 22–4904(a)(1)(A) and K.S.A.2012 Supp. 22–4902(e)(2).

Because this issue involves interpretation of a statute, this court has unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). In statutory construction, the...