State v. Parker
| Decision Date | 18 November 2022 |
| Docket Number | 124,530,124,531 |
| Parties | State of Kansas, Appellee, v. Charles Q. Parker, Appellant. |
| Court | Court of Appeals of Kansas |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; DAVID L. DAHL, judge.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BRUNS, J., and PATRICK D. MCANANY, S.J.
Charles Q. Parker was required to register as a sex offender for 10 years under K.S.A. 2002 Supp. 22-4906(a), following his release from prison in 2007 for a 2002 conviction. The law was changed in 2011 to require lifetime registration for this offense. See K.S.A. 2011 Supp. 22-4906(d)(3). Had the law not been changed, Parker's registration requirement would have ended in 2017. But in 2019 Parker was charged with violating this new registration requirement. That charge was resolved when, as called for in a plea agreement with the State, Parker pled guilty to the registration violation. Now in his direct appeal, Parker contends that the retroactive application of the new requirement for lifetime registration as a sex offender violates the Ex Post Facto Clause of the United States Constitution. But because Parker pled guilty to the registration violation, we have no jurisdiction to review that conviction by way of a direct appeal. Accordingly, we must dismiss this appeal for lack of jurisdiction.
In 2003 Parker was convicted of aggravated indecent liberties with a child. At the time of Parker's offense, the Kansas Offender Registration Act (KORA) required that defendants convicted of aggravated indecent liberties with a child register as violent sex offenders for a period of 10 years following their release from prison. See K.S.A. 2002 Supp 22-4906(a). In 2007, Parker completed serving his sentence and was released from prison. But in 2011, KORA was amended to require lifetime registration for Parker's offense. K.S.A. 2011 Supp. 22-4906(d)(3). Absent this change in the registration requirement, Parker's obligation to register as a sex offender would have expired in 2017.
In August 2019, Parker was charged with drug crimes and failing to register under KORA. Parker moved to have the registration charge dismissed, arguing that his registration obligation ended in 2017. At the December 2019 scheduled hearing on the motion, Parker, who was proceeding pro se, advised the court that he was not prepared to go forward with the motion without counsel. At Parker's request, the court continued the matter and made arrangements for the appointment of counsel. Counsel was appointed for Parker the following day. That counsel was replaced by new counsel in March 2020. There is nothing in the record to indicate that either counsel for Parker ever rescheduled a hearing on Parker's motion.
In November 2020, Parker entered into a plea agreement with the State. As called for in the agreement, Parker pleaded guilty to both the KORA violation and a drug charge. The district court accepted Parker's pleas, found him guilty, and sentenced him to a controlling term of 47 months.
This direct appeal followed. Parker contends on appeal that he was wrongly convicted on the KORA charge because the retroactive application of KORA's 2011 lifetime registration requirements is unconstitutional under the Ex Post Facto Clause of the United States Constitution.
The threshold-and controlling-issue is whether this court has subject matter jurisdiction to consider Parker's appeal. Whether jurisdiction exists is a question of law over which our scope of review is unlimited. State v. Lundberg 310 Kan. 165, 170, 445 P.3d 1113 (2019).
The fate of Parker's appeal is controlled by our Supreme Court's holding in State v. Smith, 311 Kan. 109, 120, 456 P.3d 1004 (2020). Smith was stopped for suspicion of driving under the influence on two separate occasions in 2014. In two separate cases he was charged with failing to submit to an alcohol or drug test. Smith moved to dismiss both charges, arguing that it was unconstitutional to criminalize such conduct. In each case the district court denied the motion. Smith then negotiated plea agreements with the State under which he pled guilty to these charges in exchange for the State dismissing other charges. The district court accepted his pleas and found him guilty. In November 2015, Smith appealed his convictions to this court, and both cases were consolidated on appeal.
In February 2016, our Supreme Court issued its opinion in State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016). There, the Supreme Court held that the statute that criminalized refusing to submit to testing for alcohol or drugs was facially unconstitutional. 303 Kan. at 963. Smith relied on the holding in Ryce in his direct appeal to this court. Relying on State v. Hall, 292 Kan. 862, 866, 257 P.3d 263 (2011), this court determined that it lacked jurisdiction to...
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