State v. Marinelli

Decision Date13 April 2018
Docket NumberNo. 111,227,111,227
Citation307 Kan. 768,415 P.3d 405
Parties STATE of Kansas, Appellee, v. Christopher MARINELLI, Appellant.
CourtKansas Supreme Court

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, argued the cause, and Johnathan M. Grube, of the same office, was with her on the briefs for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

The Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., imposes registration requirements on an individual convicted of any person felony when the district court finds on the record that a deadly weapon was used in the crime's commission. The Act provides for the district court to make that deadly weapon finding and to inform the offender at the time of conviction about the need to register.

Christopher Marinelli pleaded no contest to aggravated assault with a deadly weapon. On appeal, the parties dispute whether the court made the necessary deadly weapon finding for registration but agree Marinelli was not informed of his duty to register when convicted. He contends these procedural deviations void his registration obligation.

Before addressing the merits, we will consider whether we have appellate jurisdiction to decide if Marinelli's registration responsibilities are invalid. This question arises because this is a direct appeal in a criminal case, and K.S.A. 2017 Supp. 22-3602(a) limits the available grounds for appeal when a defendant has pleaded guilty or nolo contendere, as Marinelli did. In the KORA context, this is an issue of first impression for this court.

An appellate court has a duty to question jurisdiction on its own initiative. Kaelter v. Sokol , 301 Kan. 247, 247, 340 P.3d 1210 (2015). When the record discloses a lack of jurisdiction, an appellate court must dismiss the appeal.

Kaelter , 301 Kan. at 247, 340 P.3d 1210 ; see also In re T.S.W ., 294 Kan. 423, 432, 276 P.3d 133 (2012). We hold we have jurisdiction based on K.S.A. 2017 Supp. 22-3602(a) because Marinelli is not challenging on appeal his conviction.

On the merits, we affirm the district court's order that Marinelli comply with KORA. We hold the court made the requisite finding on the record in documents filed by the court, including a 2012 Kansas Sentencing Guidelines Journal Entry of Judgment. We conclude its failure to inform Marinelli about his registration obligations at the time of conviction was error in the court's fulfillment of the statutory procedure, but this does not excuse his registration duties. The error was harmless.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Marinelli with aggravated assault, alleging:

"[O]n the 3rd day of May, 2013, in Riley County, Kansas, Christopher Neil Marinelli did then and there unlawfully, feloniously, and knowingly place [victim] in reasonable apprehension of immediate bodily harm with a deadly weapon, to wit: knife ." (Emphasis added.)

Marinelli pleaded no contest and executed two documents before entering that plea: (1) "Defendant's Acknowledgement of Rights and Entry of Plea" and (2) "Plea Agreement." The acknowledgement stated Marinelli was pleading to aggravated assault and described the penalty range. The parties further agreed to jointly recommend probation and "interstate compact" to California, where Marinelli lived. For unexplained reasons, the acknowledgement indicated he would not be subject to KORA registration.

At the plea hearing, the district court asked whether Marinelli read the acknowledgment and plea agreement and discussed them with his attorney. Marinelli confirmed he had and that the documents contained the entire agreement. The court read the charge. Marinelli said he understood and informed the court he wished to plead no contest. The State recited the factual basis for the plea: Marinelli was arguing with the victim when Marinelli head-butted the victim and swiped at him with a knife. Marinelli's counsel agreed the State would produce evidence at trial consistent with this account.

The court found Marinelli's plea was made knowingly, voluntarily, and intelligently after consulting with counsel and that the State presented sufficient evidence to support conviction. The court accepted the no contest plea and found Marinelli "guilty of the charge in the Information ." (Emphasis added.) There was no mention of KORA or Marinelli's possible responsibilities under KORA resulting from his conviction.

At the sentencing hearing, the district court inquired whether there was any reason not to proceed. The prosecutor answered there was not but then raised the registration question: "Although, I did not mention the fact that the defendant has to register on this offense and I didn't see that that has occurred yet." Marinelli's counsel said he "may have some questions about the registration issue" but was not aware of legal cause not to proceed. The court sentenced Marinelli to 24 months' probation with an underlying 12-month prison term consistent with the plea agreement.

After a break, the State announced it had prepared a "Notice of Duty to Register." Marinelli objected, citing the KORA statute providing: "At the time of conviction or adjudication for an offense requiring registration ... the court shall ... [i]nform any offender, on the record, of the procedure to register and the requirements of K.S.A. 22-4905 ...." (Emphasis added.) K.S.A. 2012 Supp. 22-4904(a)(1)(A). Counsel argued Marinelli was not informed about it when convicted or in the two plea documents. Counsel also claimed there was no necessary finding on the record.

The district court asked why these problems would excuse registration, rather than simply being considered a procedural violation with the appropriate remedy being to request plea withdrawal. The State argued the lack of a specific deadly weapon finding was not crucial because that fact was an element of Marinelli's crime. The court ruled:

"The court finds that the failure to accomplish [notification] at the time of conviction was a procedural error and that it does not excuse registration. That registration is required under [K.S.A.] 22-4902(e)(2). And that the inherent element of the offense ... included reasonable apprehension of immediate bodily harm with a deadly weapon and not requiring a further finding. ... The Court will direct that registration be ordered, unless you wish to pursue the alternative of asking to withdraw [the] plea because of lack of knowledge of the registration requirement. " (Emphasis added.)

Marinelli conferred with counsel and declined to seek plea withdrawal. The court acknowledged registration was "something that may not have figured into your plans at the time that you entered your plea" and asked Marinelli to confirm he did not wish to withdraw his plea, and he did.

The court and Marinelli both signed a "Notice of Duty to Register," which is part of the record on appeal. It recites:

"You have been convicted or adjudicated of an offense requiring registration as provided by the Kansas Offender Registration Act ( K.S.A. 22-4901 et seq ). You have three business days to report to the registering law enforcement agency in the county or tribal land of the conviction or adjudication and to the registering law enforcement agency in any place where you reside, maintain employment, or attend school. You must complete the registration form with all information and any updated information required for registration as provided in K.S.A. 22-4907, and amendments thereto."

At the bottom of the Notice of Duty to Register and just above the judge's signature, the document sets out the date and states: "BY ORDER OF THE COURT."

The judge and counsel also executed a 2012 Kansas Sentencing Guidelines Journal Entry of Judgment form. It reflects a requirement that Marinelli register for 15 years from his conviction date. A box labeled "Yes" is checked next to the question, "Did offender, as determined by the Court, commit the current crime with a deadly weapon?" If yes, the form calls for an Offender Registration Supplement to be completed and attached. The Journal Entry further reflects a standard guidelines sentence was imposed with probation granted. And under a section entitled "Recap of Sentence," there is a "Miscellaneous Provisions" subsection, in which there is a checked box indicating "Defendant informed of duty to register as an offender pursuant to ... K.S.A. 2011 Supp. 22-4905(b)(2)." The "OFFENDER REGISTRATION SUPPLEMENT" has a box checked reflecting the offender is required to register as a violent offender for "[a]ny conviction for any comparable person felony committed with a DEADLY WEAPON."

Marinelli filed this direct appeal in the criminal case. His notice of appeal recites he is challenging "all adverse rulings of the court," although only one aspect is in question—the district court's alleged deviations from KORA's statutory procedures.

A Court of Appeals panel affirmed. In doing so, the panel seemingly agreed with the technical failures Marinelli asserted, stating: "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)." State v. Marinelli , No. 111227, 2015 WL 1882134, at *2 (Kan. App. 2015) (unpublished opinion). The panel then focused on the court's duty to inform and held this misstep did not matter, explaining:

"[T]he State contends that based on this court's holding in State v. Simmons, 50 Kan. App. 2d 448, 451, 329 P.3d 523 (2014), ... that offender registration arises automatically by operation of law as a nonpunitive collateral consequence of the judgment, it does not matter that the trial court failed to inform Marinelli of offender registration at the time of his conviction.
"The State is correct. In Simmons, our court held that offender
...

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  • State v. Genson, No. 121,014
    • United States
    • Kansas Court of Appeals
    • December 18, 2020
    ...despite the statutory duty of district courts and registering law enforcement agencies to inform them. See State v. Marinelli , 307 Kan. 768, 790-91, 415 P.3d 405 (2018) ; State v. Anderson , 40 Kan. App. 2d 69, 71-72, 188 P.3d 38 (2008). The failure to require actual notice renders K.S.A. ......
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  • Appellate Decisions
    • United States
    • Kansas Bar Association KBA Bar Journal No. 89-7, October 2020
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