State v. Simmons

• Decision Date: 27 June 2014
• Docket Number: No. 108,885.,108,885.
• Parties: STATE of Kansas, Appellee, v. Ami Latrice SIMMONS, Appellant.
• Court: Kansas Court of Appeals

50 Kan.App.2d 448

329 P.3d 523

STATE of Kansas, Appellee,

v.Ami Latrice SIMMONS, Appellant.

No. 108,885.

Court of Appeals of Kansas.

June 27, 2014.

Syllabus by the Court

1. An illegal sentence is where (1) the court lacked jurisdiction to sentence the defendant, (2) the character or the term of the punishment imposed as part of the sentence did not conform to the statute, or (3) the sentence was ambiguous as to how it was to be served.

2. Interpretation of a statute is a question of law over which appellate courts have unlimited review. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings.

3. The Kansas Offender Registration Act (KORA) requires offenders convicted of certain offenses to register for 15 years from the most recent of either the date of parole, discharge, or release or, if not confined, from the date of conviction. The list of specified offenses includes selling, offering for sale, or having in such person's possession with intent to sell any opiates, opium, or narcotic drugs as defined in K.S.A. 65–4161, prior to its repeal. K.S.A. 2013 Supp. 22–4906(a)(1).

4. KORA requires the staff of a facility where an offender is confined to inform the offender about the duty to register before the offender is released. K.S.A. 2013 Supp. 22–4904(b) (formerly K.S.A. 22–4905[a][1] ).

5. KORA requires an offender, upon release from confinement, to register with the county sheriff within 10 days of the offender coming into any county in which the offender intends to reside for more than 10 days. K.S.A. 2013 Supp. 22–4904(a)(1). Thereafter, the sheriff is required to explain the duty to register and the procedure involved and then to obtain the information required for registration. K.S.A. 2013 Supp. 22–4904(d) (formerly K.S.A. 22–4904[a] [5] ).

6. KORA requires the court to notify all offenders subject to registration of the duty to register and the procedure for doing so. Notification must occur at the time of conviction. K.S.A. 2013 Supp. 22–4904(a). KORA requires the court to draft a written notice of duty to register if the offender is released instead of remanded to custody. K.S.A. 2013 Supp. 22–4904(a)(1)(B).

7. Ordinarily, in a legal sense, “sentence” is synonymous with “judgment” and denotes the action of a court of criminal jurisdiction formally declaring to the defendant the legal consequences of the guilt which he or she has confessed or of which he or she has been convicted.

8. In criminal cases, the judgment must be rendered and sentence imposed in open court. The judgment in a criminal case, whether it imposes confinement, imposes a fine, grants probation, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench.

9. The duty to register as an offender is a civil penalty that is remedial in nature and intended to protect public safety, not to impose punishment.

10. KORA does not require a court or any other entity to affirmatively act or issue a judgment in order to impose a statutory duty on an offender to register.

11. A criminal defendant has both a statutory right and a constitutional right to be present with counsel at all critical stages of the prosecution of the case against him or her.

12. A district court sentences a defendant when it orally pronounces punishment and other terms and conditions associated with the disposition of the crime of conviction from the bench. As a general rule, a sentence is complete when the district court concludes the sentencing hearing and the court does not have jurisdiction to change a sentence thereafter.

13. The offender registration requirements set forth in KORA arise automatically by operation of law without court involvement and represent nonpunitive collateral consequences of judgment; thus, a duty to register under KORA is distinct from, and not part of, an offender's criminal sentence.

14. A statute violates ex post facto protections if it retroactively either criminalizes conduct that had not been proscribed or increases the punishment for conduct already treated as criminal.

15. Punishment triggered by the failure to register is not a factor to be considered in the ex post facto determination because an offender who fails to comply with a registration requirement will be prosecuted for that failure in a proceeding separate from the individual's original offense.

16. Any person convicted of a felony must submit specimens of blood or an oral or other biological sample to the Kansas Bureau of Investigation. K.S.A. 2013 Supp. 21–2511(a). If the person is placed directly on probation, the court is required to order the specimen or sample collected within 10 days after sentencing. K.S.A. 2013 Supp. 21–2511(c)(1).

17. Any adult arrested or charged with the commission or attempted commission of any felony is required to submit a specimen of blood or an oral or other biological sample at the same time such person is fingerprinted pursuant to the booking procedure. Before taking this specimen or sample, the custodial law enforcement agency shall search the Kansas criminal justice information system to determine if it is already on file. If it cannot be reasonably established that the sample is on file, the agency shall cause a sample to be collected. If it is on file, the agency is not required to take a sample. K.S.A. 2013 Supp. 21–2511(e)(2)–(3).

18. Any person convicted of an offense that requires the person to submit a specimen of blood or an oral or other biological sample upon arrest, charging, or placement in custody shall pay a separate court cost of $200 as a DNA database fee upon conviction. The court shall order such fee regardless of whether the person's DNA sample was already in the database at the time such person was arrested, charged, or placed in custody, unless the person can prove to the court that the person: (1) Has paid such fees in connection with a prior conviction or adjudication; and (2) did not submit specimens of blood or an oral or other biological sample authorized by the Kansas Bureau of Investigation to the Kansas Bureau of Investigation for the current offense of conviction or adjudication. K.S.A. 2013 Supp. 75–724.

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

Charles Ault–Duell, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., BRUNS and POWELL, JJ.

STANDRIDGE, J.

Ami Latrice Simmons appeals from her conviction for failing to register as a drug offender. Specifically, Simmons argues retroactive application of 2007 legislation that requires her to register as a drug offender for a prior conviction that did not require registration at the time she originally was sentenced (1) illegally modifies the original sentence imposed and (2) violates the Ex Post Facto Clause of the United States Constitution. She also challenges the $200 DNA database fee imposed by the district court. Because an offender's statutory duty to register is imposed automatically by operation of law, without court intervention, as a collateral consequence of judgment with a stated objective of protecting public safety and not punishment, we necessarily conclude that the registration requirements—no matter when imposed—are not part of an offender's sentence. As such, Simmons' illegal sentence and ex post facto claims both fail. For the reasons stated below, her challenge to the $200 DNA database fee imposed by the district court also fails.

Facts

Simmons was convicted and sentenced in 2005 after pleading guilty to possession of cocaine with intent to distribute and sale of cocaine. When Simmons committed those crimes—and even when she was sentenced—the Kansas Offender Registration Act (KORA) did not require drug offenders to register. In 2007, however, KORA was amended to add certain drug offenders to the registration list. L.2007, ch. 183, sec. 1. Although Simmons complied with her registration requirements until May 2011, she was charged in June 2011 with failing to register as required. Simmons filed a motion to dismiss the charges on grounds that the registration requirement violated “the Ex Post Facto Clause of the United States and Kansas Constitutions,” but the motion was denied.

Waiving her right to a jury trial but reserving the right to appeal, Simmons' case went to a bench trial on the following stipulated facts.

“In March of 2005, the State filed a 13 count complaint against Ami Simmons in Saline County Case No.2005 CR 359. The complaint alleged, among other things, that Simmons possessed cocaine with the intent to distribute it and that Simmons in fact sold cocaine, both in violation of K.S.A. 65–4161(a).

“On June 21, 2005, Simmons entered a guilty plea to possession of cocaine with the intent to distribute and the sale of cocaine. She was sentenced to 30 months in prison with 24 months of post-release supervision, granted a border-box disposition to probation, and placed on 18 months of probation in October of 2005.

“Simmons' probation in 05 CR 359 was eventually revoked in May 2007, and Simmons was remanded to serve her 30–month prison sentence. Simmons was incarcerated from June 21, 2007, to October 22, 2008. She began serving her 24–month post-release supervision period when she was released.

“The Kansas Offender Registration Act (KORA) was amended effective July 1, 2007, L.2007, ch.183, § 1, to include offenders who had been convicted of K.S.A. 65–4161 offenses, including the sale of cocaine. K.S.A. 22–4902(a)(11)(C).

“Under K.S.A. 22–4906(a), Simmons' KORA registration obligations with the Saline County Sheriff's Office began on the date of her parole, October 22, 2008.

“On May 31, 2011, a Saline County...