State v. N.R.

• Decision Date: 27 September 2019
• Docket Number: No. 119,796,119,796
• Parties: STATE of Kansas, Appellee, v. N.R., Appellant.
• Court: Kansas Court of Appeals

451 P.3d 877

STATE of Kansas, Appellee,

v.N.R., Appellant.

No. 119,796

Court of Appeals of Kansas.

Opinion filed September 27, 2019

Rick Kittel, of Kansas Appellate Defender Office, Lawrence, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Powell, P.J., Gardner, J., and Lahey, S.J.

Gardner, J.:

N.R. appeals his conviction of failing to register as a sex offender. He argues that the district court erred in denying his motion to dismiss, which argued that imposition of lifetime postrelease registration under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., is unconstitutional as applied to a 14-year-old juvenile offender. N.R. also argues that his sentence is illegal because the registration requirement was improperly imposed by a magistrate court instead of by a district court. But we find that the registration requirement is not punishment as to a juvenile and is not part of a juvenile offender's sentence, so it does not violate the constitutional provisions N.R. raises. And the relevant statutes impose on the defendant a duty to register, making any lack of a magistrate court's authority to do so immaterial. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, N.R., then 14 years old, pleaded guilty to rape and was adjudicated a juvenile offender. As a result of his plea, the magistrate court granted N.R. probation with an underlying sentence of 24 months in a correctional facility. The magistrate court also ordered N.R. to register as a sex offender, without stating how long N.R. had to do so.

N.R. understood that he had to register for a period of five years from the date of adjudication. See K.S.A. 2006 Supp. 22-4906(h)(1) (requiring registration for five years under certain circumstances). But in 2011, before the five-year registration period expired, the Legislature amended the statute to require lifetime registration for some juvenile offenders based on age and the severity of the offense:

"[An] offender 14 years of age or more who is adjudicated as a juvenile offender for an act which if committed by an adult would constitute a sexually violent crime set forth in subsection (c) of K.S.A. 22-4902, and amendments thereto, and such crime is an off-grid felony or a felony ranked in severity level 1 of the nondrug grid as provided in K.S.A. 21-4704, prior to its repeal, or section 285 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, shall be required to register for such offender's lifetime." L. 2011, ch. 95, § 6(h).

N.R. was adjudicated of committing rape, a severity level 1 offense if committed by an adult. See K.S.A. 2005 Supp. 21-3502(a)(2), (c). So the amended registration statute, as applied to N.R., required lifetime registration.

N.R. admits knowing that registration has always been a requirement of his release, and N.R. has registered as an offender from his adjudication until the present, except for a few instances. In 2012, N.R. was convicted of failing to register. Then in 2017, N.R. was charged with two counts of failing to register.

Before trial on those two counts, N.R. moved to dismiss, the denial of which he now appeals. He argued that the lifetime registration requirement:

• Violated the cruel and unusual punishment provision of the Eighth Amendment of the United States Constitution;

• violated the cruel or unusual punishment provision of section 9 of the Kansas Bill of Rights;

• violated the Ex Post Facto Clause of the United States Constitution; and

• was an illegal sentence imposed by a magistrate judge without authority to impose registration.

The district court held a hearing on N.R.'s motion and then denied it based on its duty to follow our Supreme Court's precedent about lifetime registrations requirements.

N.R. then tried his case to the bench based on stipulated facts. Those relevant facts are:

"3. Defendant renews his objections and arguments regarding cruel and unusual punishment, ex post facto, and illegal sentence raised by written motion and in the motion hearing held February 9, 2018. The court denied the motion. The Defendant specifically reserves his right to appeal the Court's denial of the motion to dismiss in this matter.

"4. The investigating officers in this case would testify consistently with their prior testimony at the preliminary hearing held November 27, 2017, and said testimony is hereby incorporated by reference. A summary of the evidence as it would be presented by the investigating officers and witnesses in this case is as follows:

"a. [N.R.] is required to register as a sex offender based on an adjudication for Rape, Sexual Intercourse with a Child 14 YOA in Saline County, KS case # 2006 JV 238. (See attached Exhibit 1, which is hereby incorporated herein by reference as being accurate.).

"b. [N.R.] is required to register four times each year with the months of registration determined by his birth month of December; making his registration months March, June, September and December. [N.R.] registered June 30, 2016 listing his address as 100 E. 2nd, Apt. 9, Hutchinson, Reno County, Kansas. That address is managed by New Beginnings Inc. (New Beginnings).

"c. On August 11, 2016, New Beginnings terminated [N.R.'s] stay and he no longer resided at 100 E. 2nd, Apt. 9, Hutchinson, Reno County, Kansas. Brenda Heim of New Beginnings based the termination on no income, no permanent housing, and refusal to comply with the requirements of the program. (See attached Exhibit 2, which is hereby incorporated herein by reference as being accurate.).

"d. [N.R.] failed to report his change of residence by August 15, 2016, within three days, contrary to the requirements of his registration under K.S.A. 22-4905(g). [N.R.] had acknowledged he understood this requirement of registration by initialing #7 on his Kansas Offender Registration Form. (See attached Exhibit 3, which is hereby incorporated herein by reference as being accurate.).

"e. [N.R.] failed to report for registration between September 1 and September 30, 2016, his normal month of registration, contrary to the requirements of his registration under K.S.A. 22-4905(b). [N.R.] had acknowledged he understood this requirement of registration by initialing #5 on his Kansas Offender Registration Form. (See attached Exhibit 3, which is hereby incorporated herein by reference as being accurate.).

f. [N.R.] acknowledged he was required to register as an offender in Reno County, Kansas when he filled out Kansas Offender Registration Form with a Reno County address, 100 E. 2nd, Apt. 9, Hutchinson, Reno County, Kansas. (See attached Exhibit 3, which is hereby incorporated herein by reference as being accurate.).

"g. [N.R.] has a prior conviction for failure to register as a sex offender in Reno County case # 2012 CR 549. (See attached Exhibit 4, which is hereby incorporated herein by reference as being accurate.)."

The four exhibits referenced and incorporated in the stipulation are: (1) the original and amended juvenile offender complaints against N.R. and the related journal entries; (2) a document showing the termination of N.R.'s stay at New Beginnings; (3) a 2016 Kansas offender registration form; and (4) a 2012 journal entry of conviction for N.R.'s failure to register as a sex offender.

After considering the evidence, the district court found N.R. guilty of failing to register on both counts. It sentenced N.R. to a controlling 49 months in prison but granted a dispositional departure to community corrections for 36 months. N.R. appeals the district court's denial of his motion to dismiss, reprising the arguments he made below.

I. THE DISTRICT COURT DID NOT ERR IN FINDING THE REGISTRATION REQUIREMENT CONSTITUTIONAL, AS APPLIED TO JUVENILES .

We first address N.R.'s argument that KORA's requirement of lifetime registration as a sex offender is unconstitutional as applied to juveniles. The State rejects N.R.'s as-applied constitutional arguments because the lifetime registration requirement is neither punishment nor part of N.R.'s criminal sentence.

Determining a statute's constitutionality is a question of law subject to our unlimited review. We presume statutes are constitutional and must resolve all doubts in favor of a statute's validity. State v. Petersen-Beard , 304 Kan. 192, 194, 377 P.3d 1127 (2016). We must interpret a statute in a way that makes it constitutional if any reasonable construction exists that would maintain the Legislature's apparent intent.

This court is duty bound to follow our Supreme Court precedent, absent some indication it is departing from its previous position. State v. Meyer , 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Our Supreme Court has recently found that "[t]he legislature intended KORA to be civil and nonpunitive for all classes of offenders currently subject to its provisions." State v. Huey , 306 Kan. 1005, 1009, 399 P.3d 211 (2017), cert. denied ––– U.S. ––––, 138 S. Ct. 2673, 201 L.Ed.2d 1077 (2018).

Kansas courts have repeatedly held that offender registration under KORA is not punishment. See, e.g., Petersen-Beard , 304 Kan. at 209, 377 P.3d 1127 (finding that lifetime registration as a sex offender under KORA is not punishment for either Eighth Amendment or § 9 purposes); State v. Rocheleau , 307 Kan. 761, Syl. ¶ 4, 415 P.3d 422 (2018) ; State v. Watkins , 306 Kan. 1093, 1095, 401 P.3d 607 (2017) ; Huey , 306 Kan. at 1009-10, 399 P.3d 211. Because registration is not punishment, our Supreme Court has explicitly rejected the argument that KORA's lifetime registration requirement violates an offender's constitutional rights as they relate to cruel and unusual punishment or ex post facto provisions. See State v. Reed , 306 Kan. 899, 904, 399 P.3d 865 (2017) ("Registration pursuant to KORA for sex offenders is not punishment. Accordingly, retroactive application of the tolling provision to extend Reed's registration period...