Opinion
111,229.
04-10-2015
In the Matter of Randy Wayne Joseph HUSLEY, Appellant.
Robert A. Thompson, of Salina, for appellant. Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Robert A. Thompson, of Salina, for appellant.
Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
A full statement of the procedural background and legal issues relevant to the issues involved in this appeal can be found in the following opinion of State v. Ward, No. 109,325, 2014 WL 5610212 (Kan.App.2014) (unpublished opinion), petition for rev. filed November 21, 2014. We then provide only a summary of the facts of Randy Wayne Joseph Hulsey's case after the Ward opinion.
The Ward opinion states:
“Per Curiam: Earnest C. Ward filed a motion, through appointed counsel, in the trial court. In his motion, he challenged the retroactive application of the 2011 amendments to the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. Ward argued that the 2011 amendments violated the Ex Post Facto Clause of the United States Constitution because the amendments extended the period of time he was required to register as an offender. The trial court determined that it lacked jurisdiction to decide Ward's constitutional challenge to the 2011 amendments to KORA because Ward's criminal case had been fully adjudicated. The trial court further determined that its lack of jurisdiction in Ward's criminal case did not bar Ward from challenging the retroactive application of the 2011 amendments to KORA in a civil action.
“On appeal, Ward contends that the trial court erred in determining that it had no jurisdiction to decide his constitutional challenge to the 2011 amendments to KORA. He asserts that the trial court had jurisdiction over this matter because his request to the trial court should have been construed as a motion to correct an illegal sentence. In addition, Ward argues that the retroactive application of the 2011 amendments to KORA is unconstitutional. Because we determine that offender registration was not a part of Ward's sentence, his illegal sentence argument fails. As a result, we determine that the trial court lacked jurisdiction to consider this matter. Accordingly, we dismiss Ward's appeal for lack of jurisdiction.
“On June 30, 1999, Ward was charged with aggravated indecent liberties with a child, a severity level 3 person felony. When the State agreed to a dispositional departure to probation with community corrections, Ward pled guilty to indecent liberties with a child, a severity level 5 person felony.
“The trial court sentenced Ward to 57 months' imprisonment, granted Ward's dispositional departure motion, and imposed a 36–month probation term with community corrections. The trial court also ‘certified’ Ward as a sex offender and informed him of his duty to register as provided by KORA.
“After multiple probation violations, the trial court revoked Ward's probation and ordered him to serve his underlying sentence. Ward completed his sentence, including his postrelease supervision in May 2009.
“On July 8, 2011, Ward wrote a letter to the trial court requesting counsel to assist him in challenging the 2011 amendments to KORA. The trial court appointed counsel to assist Ward in his KORA challenge. Ward's counsel filed several challenges to KORA's retroactive application and asked the trial court to declare that the 2011 amendments to KORA were unconstitutional as retroactively applied. The State filed a response challenging the trial court's subject matter jurisdiction to consider Ward's motions.
“The trial court ultimately determined that it lacked jurisdiction to hear Ward's motions. The trial court ruled that it had no jurisdiction because Ward had filed his motion in his fully adjudicated criminal case rather than in a separate civil action.
“Did the Trial Court Lack Subject Matter Jurisdiction to Address the Merits of Ward's Claims?
“Ward's main argument is that amendments to KORA—which were enacted in 2011—violate the Ex Post Facto Clause of the United States Constitution. Ward notes that his conviction originally required him to register as an offender for 10 years, but the 2011 KORA amendments now required him to register for 25 years. Ward contends that the effects of the 2011 amendments to KORA are punitive and therefore retroactive application is a violation of the Ex Post Facto Clause.
“For the first time on appeal, Ward argues that the trial court had jurisdiction to consider the merits of his claims as a motion to correct an illegal sentence under K.S.A. 22–3504. On the other hand, the State maintains that because Ward did not raise this issue at the trial court level, we should not address the issue. The State further contends that the trial court lacked jurisdiction over claims raised regarding Ward's previously adjudicated criminal case and, therefore, the case was properly dismissed for lack of jurisdiction.
“Whether jurisdiction exists is a question of law over which appellate courts exercise unlimited review. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014). Moreover, an appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, an appellate court must dismiss the appeal. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). To the extent this case will require statutory interpretation, such interpretation is a question of law over which an appellate court has unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
“We must first consider Ward's illegal sentence argument that was not raised before the trial court. Ward maintains that this court can address his illegal sentence argument because ‘registration was a part of sentencing and ... the enforcement of the original sentence was raised by Mr. Ward.’
“Appellate courts may consider a defendant's illegal sentence arguments for the first time on appeal. Under K.S.A. 22–3504(1), Kansas courts have ‘specific statutory jurisdiction to correct an illegal sentence at any time.’ State v. Scherzer, 254 Kan. 926, 930, 869 P.2d 729 (1994) ; see also State v. Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013) (‘This court may correct an illegal sentence sua sponte. ’).
“Whether a sentence is illegal is a question of law over which appellate courts have unlimited review. Under K.S.A. 22–3504, an illegal sentence is defined as: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of punishment authorized; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. See State v. Gilbert, 299 Kan. 797, Syl. ¶ 2, 326 P.3d 1060 (2014).
“We can quickly dispose of Ward's offender registration argument based on this court's recent holding in State v. Simmons, 50 Kan.App.2d 448, 329 P.3d 523 (2014). In Simmons, our court held that offender registration is not part of a defendant's sentence. In reaching this holding, the Simmons court stated:
“ ‘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.’ 50 Kan.App.2d at 451.
Because offender registration was not part of Ward's sentence, his illegal sentence argument fails. Consequently, this court lacks jurisdiction to consider Ward's constitutional challenge to the retroactive application of the 2011 amendments to KORA.
“The Trial Court's Jurisdiction Finding
“In the alternative, we will consider the trial court's ruling. The trial court held that
“ ‘[t]here is no ... provision of state statute that would allow the defendant to file a motion of constitutional objection within his/her district court criminal case after the sentence has been satisfied and all requirements of parole have been satisfied. Therefore, the district court is without jurisdiction in this criminal case to entertain the defendant's motion....’
The trial court further stated:
“ ‘[T]he district court does not have jurisdiction to hear or rule on such a constitutional challenge or other motion within a criminal case for which 1) the trial has been completed; and 2) probation has been completed or terminated or a felony sentence of imprisonment has been placed in effect; and 3) appeal rights have expired or been exhausted; and 4) for which the conviction has not been expunged.’
“The trial court explained that its ruling did not prevent Ward from asserting his constitutional challenges in an appropriately filed civil action, such as a declaratory judgment.
“Thus, the question is whether the trial court properly determined that it lacked subject matter jurisdiction to address the merits of Ward's challenge to the retroactive application of the 2011 amendments to KORA in his previously adjudicated criminal case.
“ ‘Subject matter jurisdiction establishes the court's authority to hear and decide a particular action. It cannot be conferred by consent, waiver, or estoppel. Nor can parties convey subject matter jurisdiction onto a court by failing to object to the court's lack of jurisdiction. If the district court lacks subject matter jurisdiction, an appellate court cannot acquire jurisdiction over the subject matter on appeal.’ Sleeth v. Sedan City Hospital, 298 Kan. 853, 868, 317 P.3d 782 (2014) (citing Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 [2009] ).
“In Kansas, trial courts “have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law.” K.S.A. 20–301. Trial courts have ‘exclusive jurisdiction to try all cases of felony and other criminal cases arising under the statutes of the state of Kansas.’ K.S.A. 22–2601.
“ ‘Subject matter jurisdiction lies in the district court and follows the defendant through the process of the issuing of the complaint, arrest pursuant to a warrant, initial appearance, the setting or denial of bond at the bond hearing, and the preliminary hearing, arraignment, and trial.’State v. Hall, 246 Kan. 728, 757, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).
“The trial court retains jurisdiction over a case until its order becomes final. See Sanders v. City of Kansas City, 18 Kan.App.2d 688, 692, 858 P.2d 833 (‘In Kansas, the district court retains jurisdiction until an appeal is docketed with the appellate court.’), rev. denied 253 Kan. 860 (1993), cert. denied 511 U.S. 1052 (1994). A judgment becomes final in a criminal case once the defendant is convicted and sentenced. State v. Howard, 44 Kan.App.2d 508, 511, 238 P.3d 752 (2010).
“Our appellate courts have held that the Kansas Sentencing Guidelines Act does not give a trial court continuing jurisdiction after a sentencing proceeding is concluded. State v. Trostle, 41 Kan.App.2d 98, 102, 201 P.3d 724 (2009) (citing State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 [1996] ). When a lawful sentence has been imposed under the sentencing guidelines, the sentencing court loses subject matter jurisdiction to modify that sentence except to correct arithmetic or clerical errors under K.S.A. 21–4721(i), recodified as K.S.A.2013 Supp. 21–6820(i). See State v. Guder, 293 Kan. 763, 766, 267 P.3d 751 (2012).
“K.S.A.2013 Supp. 22–4908
“The parties dispute whether K.S.A.2011 Supp. 22–4908 applies in this case. K.S.A.2013 Supp. 22–4908 [same as 2011 Supp.] states:
“ ‘No person required to register as an offender pursuant to the Kansas offender registration act shall be granted an order relieving the offender of further registration under this act. This section shall include any person with any out of state conviction or adjudication for an offense that would require registration under the laws of this state.’
“Initially, KORA allowed a registrant to petition for relief from registration obligations. See K.S.A.1993 Supp. 22–4908. Then, in 2001, the legislature amended this statute and explicitly made it clear that no registrant can be relieved of his or her registration obligations. See K.S.A.2001 Supp. 22–4908. In 2011, the legislature again amended this statute to include registrants who have an out-of-state conviction which requires registration in Kansas. See K.S.A.2011 Supp. 22–4908 (same as 2013 Supp.).
“KORA is listed under the Kansas Code of Criminal Procedure; thus, it is presumed that the statutes listed in KORA are applicable to criminal jurisdiction. Under K.S.A.2013 Supp. 22–4908, it is clear that a criminal court does not have the authority to relieve a registrant of his or her obligation to register. Nevertheless, there is nothing in the statute to prevent a registrant from challenging his or her registration obligations in a separate civil action. Moreover, K.S.A.2013 Supp. 22–4908 does not apply to Ward's constitutional challenge to his registration requirement. Ward is not seeking to simply be relieved of his registration duties early. He seeks a declaration that the retroactive application of the 2011 amendments to KORA is unconstitutional. Thus, he argues a registrant's offender registration time period could not be extended after it was originally imposed.
“Although not controlling authority, an Idaho court has addressed whether a criminal trial court has jurisdiction to hear an appeal under the Idaho sex offender registration act in a previously dismissed or fully adjudicated criminal case. In State v. Johnson, 152 Idaho 41, 266 P.3d 1146 (2011), an adult sex offender filed a petition in his previously dismissed criminal case seeking an exemption from his duty to register as a sex offender. The trial court denied his petition. On appeal, the Idaho Supreme Court held that it had no jurisdiction to decide the appeal because sex offenders seeking exemption from filing under the Idaho act must file their petitions as new civil actions if their criminal cases have been dismissed or fully adjudicated and the time for appeal had run. 152 Idaho at 48. The Johnson court found that the plain language of the statute made it ‘clear that the Legislature did not extend the district court's jurisdiction to entertain petitions as part of a criminal action.’ 152 Idaho at 48. The court focused on the language in the statute that required an offender convicted out of state to file his or her petition in the county in which he or she resides. The Johnson court reasoned that a person convicted out of state could not petition for relief in the criminal proceeding that resulted in the conviction. 152 Idaho at 48. The court further found that the registration requirement was regulatory in nature rather than criminal; thus, it follows that it should be a civil proceeding. 152 Idaho at 48.
“The reasoning used in Johnson is persuasive. For example, K.S.A.2013 Supp. 22–4908 states that ‘[n]o person required to register as an offender pursuant to the Kansas offender registration act shall be granted an order relieving the offender of further registration under the act.’
“Also, K.S.A.2013 Supp. 22–4908 states that any person who has an out-of-state conviction or adjudication for an offense that would require registration under Kansas law is included under this statute for registration.
“Here, Ward filed this action in the 18th Judicial District of Kansas, where he was ... convicted of ... indecent liberties with a child. If Ward is correct and the 18th Judicial District of Kansas would continue to have jurisdiction over this matter because it involves a part of his sentence, what judicial district of Kansas would have jurisdiction over a person who has an out-of-state conviction that requires registration in Kansas?
“It is obvious that a person convicted out of state of a crime that requires registration in Kansas would be unable to petition in a Kansas criminal proceeding for relief concerning his or her out-of-state conviction. Thus, a person required to register in Kansas as a result of an out-of-state conviction would be treated differently from a person who is convicted in Kansas. Moreover, KORA explicitly states that no registrant may petition the court for relief from registration.
“Thus, from the plain language of K.S.A.2013 Supp. 22–4908, it is clear that the Kansas Legislature did not extend to the 18th Judicial District of Kansas jurisdiction to entertain petitions challenging the registration requirements of KORA as part of a criminal action.
“Accordingly, we dismiss Ward's appeal for lack of jurisdiction.” 2014 WL 5610212, at *1–6.
Hulsey's Case and Our Decision Based on Ward
Hulsey appeals the judgment of the trial court denying his motion to terminate or modify his registration requirement under KORA. On appeal, Hulsey challenges the retroactive application of the 2011 amendments to the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. Hulsey maintains that the trial court lacked jurisdiction to extend his registration requirements and that the amendments to KORA violate the Ex Post Facto Clause of the United States Constitution. Because we determine that Hulsey's registration requirement is not a part of his sentence, we affirm the trial court's denial of his motion to terminate or modify his registration requirement under KORA.
On September 6, 2007, Hulsey was charged as a juvenile offender with one count of rape. On January 15, 2008, Hulsey pled guilty as charged. At sentencing, Hulsey was found to be a juvenile offender and was sentenced to serve 24 months in a juvenile correctional facility, with 6 months of aftercare. This sentence was suspended, and Hulsey was granted probation for a term of 12 months. Hulsey was also ordered to register as a sex offender.
On September 15, 2009, Hulsey was released from probation after having his probation extended twice.
On May 28, 2013, Hulsey's counsel moved to terminate Hulsey's registration requirement. When KORA was amended in 2011, it extended Hulsey's registration requirement from 5 years to lifetime registration. Hulsey's counsel argued that lifetime registration was punitive and that it violated the Ex Post Facto Clause of the United States and Kansas Constitutions.
The trial court initially granted Hulsey's motion to terminate. It determined that the registration requirement was a part of Hulsey's sentence that was ordered and included in his journal entry and probation order. The trial court further determined that the purpose of juvenile registration is different and distinct from adult registration.
Shortly thereafter, the State moved to reconsider or clarify the trial court's registration ruling. In this motion, the State asked the court to reconsider its decision regarding Hulsey's registration requirement.
On January 3, 2014, the trial court entered a written order reversing its previous order. The court granted the State's motion to reconsider and ultimately denied Hulsey's motion to terminate his registration requirement. The trial court held that offender registration under KORA is nonpunitive and that the amendments to KORA do not violate the Ex Post Facto Clause of the United States Constitution.
On appeal, Hulsey argues that the trial court illegally modified his sentence by applying the KORA amendments to his registration requirement. Hulsey maintains that the trial court did not have jurisdiction to alter his registration because it was a part of his sentence that had been entered 3 years before the amendments came into effect.
We are not persuaded that the trial court erred in rejecting Hulsey's illegally modified sentence argument. We considered and rejected a similar argument in Ward, 2014 WL 5610212. We see no reason to duplicate this court's efforts and therefore affirm the judgment of the trial court for substantially the same reasons set forth in Ward, which is hereby adopted and incorporated into our decision.
Accordingly, we affirm the trial court and dismiss Hulsey's appeal for lack of jurisdiction.