Opinion
No. 107,557.
2013-05-10
STATE of Kansas, Appellee, v. Matthew CARLSON, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant county attorney, Stephen M. Howe, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant county attorney, Stephen M. Howe, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Matthew Carlson appeals the district court's order requiring him to register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. Carlson argues that the district court lacked jurisdiction to later impose registration after it had failed to make the required findings and order registration from the bench at the sentencing hearing. We agree with Carlson that the district court improperly modified his sentence by ordering registration under KORA after sentencing had been completed, and accordingly we vacate the district court's registration order.
On October 26, 2011, Carlson pled guilty to one count of aggravated robbery. At the plea hearing, the State's factual basis for the charge was that Carlson had walked into a QuikTrip armed with a serrated kitchen knife and demanded money from the cashier. Carlson agreed at the plea hearing that the State had presented an accurate statement of the facts. The district court accepted the plea, but the court made no finding on the record that a deadly weapon was used in the commission of the crime.
On December 22, 2011, the district court sentenced Carlson to 71 months' imprisonment but granted a downward dispositional departure and placed him on probation for 36 months with community corrections. At the sentencing hearing, the district court made no finding on the record that Carlson used a deadly weapon in the commission of the crime. Likewise, the district court did not order from the bench that Carlson must register as a violent offender under KORA.
In a subsequent journal entry of judgment, the question “Did offender, as determined by the court, commit the current crime with a deadly weapon?” was marked yes. The journal entry also ordered Carlson to register for 15 years from the date of conviction based on the conviction of a person felony and a “finding on the record that such felony was committed with a deadly weapon.”
On January 25, 2012, the district court held a hearing to settle the journal entry and determine whether Carlson was required to register as a violent offender under KORA. Carlson argued that to order registration, the district court needed to make a specific finding on the record that Carlson had used a deadly weapon in the commission of the crime. Because the district court had not made this finding on the record or ordered him to register at the sentencing hearing, Carlson argued that he should not be required to register. The State argued that the district court could take judicial notice of the plea, at which Carlson had admitted the State's factual basis for the charge, including the fact that he had used a knife to commit aggravated robbery.
After hearing arguments of counsel, the district court noted that everyone at the sentencing hearing acknowledged there was a weapon involved in the crime. Thus, the district court found that it had jurisdiction to make the specific finding that Carlson used a deadly weapon in committing aggravated robbery, and therefore he was ordered to register as a violent offender. Carlson timely appealed the district court's judgment.
In his sole issue on appeal, Carlson argues that the district court erred in ordering him to register as a violent offender. Specifically, Carlson contends that the district court did not have jurisdiction to make such an order at a hearing held after sentencing when it had failed to make the required finding and order registration at sentencing. The State argues that the district court retained jurisdiction to clarify registration requirements. The State also argues that this court may infer the required factual finding from either (1) the fact that neither party disputed that Carlson used a knife in the robbery or (2) the fact that the district court accepted Carlson's plea to aggravated robbery.
Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012). Also, to the extent this issue involves statutory interpretation, an appellate court exercises unlimited review. See State v. Inkelaar, 293 Kan. 414, 433, 264 P.3d 81 (2011).
K.S.A.2011 Supp. 22–4902(a) defines the meaning of the word “offender” for KORA's purposes. K.S.A.2011 Supp. 22–4902(a)(2) explicitly incorporates “a violent offender.” A violent offender includes any person who “on or after July 1, 2006, is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony.” (Emphasis added.) K.S.A.2011 Supp. 22–4902(e)(2). Here, the district court made no finding on the record at either the plea hearing or the sentencing hearing that Carlson used a deadly weapon in the commission of a person felony. However, the district court attempted to correct this omission by holding a subsequent hearing at which it made the finding.
Carlson correctly notes that sentencing in a criminal case is effective when the district court pronounces the sentence from the bench. See State v. Jackson, 291 Kan. 34, 35, 238 P.3d 246 (2010). Moreover, Kansas appellate courts have typically imposed registration requirements at sentencing and treated registration as part of a defendant's sentence. See, e.g., State v. Wilson, 295 Kan. 605, 627, 289 P.3d 1082 (2012); State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012); Jackson, 291 Kan. at 37. A district court is powerless to vacate a sentence and impose a harsher sentence once it has pronounced sentence. 291 Kan. at 35. A journal entry that imposes a sentence varying from the sentence pronounced from the bench is erroneous and must be corrected to show the actual sentence imposed. 291 Kan. at 35–36. A sentencing court may, however, file a journal entry of sentencing that “clarifies an ambiguous or poorly articulated sentence pronounced from the bench” and may modify a sentence “in order to correct an arithmetic or clerical error.” 291 Kan. at 36.
Relying on Jackson, the State argues that the district court retained jurisdiction to “clarify” Carlson's registration order after his initial sentencing hearing. Carlos Jackson pled guilty to three counts of aggravated battery arising from an incident where he fired a gun into a crowd, injuring several people, and the district court imposed a controlling sentence of 184 months' imprisonment. Jackson had multiple prior juvenile adjudications, and the district court directed the parties to brief the issue of whether the juvenile adjudications constituted convictions under KORA, which required lifetime registration upon a second or subsequent conviction of a violent crime. See K.S.A.2011 Supp. 22–4906(c). The district court later filed a journal entry of sentencing in which it ordered lifetime registration because Jackson had a second conviction of a crime committed with a deadly weapon.
On appeal, Jackson raised two issues: (1) whether the sentencing court had jurisdiction to impose offender registration when it did not order the registration when it pronounced sentence from the bench and (2) whether the district court properly relied on a prior extended jurisdiction juvenile conviction when it ordered Jackson to maintain lifetime violent offender registration. Regarding the first issue, our Supreme Court compared a registration order to a condition of probation. Our Supreme Court recognized that although “special conditions of probation” that are imposed only in a journal entry are of no effect, “[s]tandard conditions of probation imposed by statute in every case are excluded [from this rule] because the defendant has constructive notice of them and the conditions are implicit in the grant of every probation. [Citations omitted.]” 291 Kan. at 37.
Focusing on the statutory language that “speaks of persons who are ‘required to register’ and of a ‘registration requirement,’ “ the court stated that because registration is mandatory, not discretionary, an order of registration is similar to a standard order of probation of which the defendant has constructive notice. 291 Kan. at 37. Our Supreme Court concluded that “[t]he sentencing court had jurisdiction to include the registration requirement in the journal entry without making it part of the sentence imposed from the bench.” 291 Kan. at 37. But turning to the second issue raised by Jackson, our Supreme Court found that the district court had erred by relying on a prior extended jurisdiction juvenile conviction to impose lifetime violent offender registration. Thus, the Supreme Court vacated the order for lifetime registration. 291 Kan. at 40.
Jackson stands for the proposition that a statutorily mandated registration order can be included in a journal entry even when the order was not pronounced from the bench. But Jackson is distinguishable from Carlson's case on two grounds. First, in Jackson, the district court continued the sentencing hearing and ordered the parties to submit briefs on the issue of registration. The district court later filed a journal entry of sentencing in which it ordered lifetime registration. In Carlson's case, the district court pronounced sentence, asked if either counsel had anything further, and then concluded sentencing. There was no indication that the district court was reserving any part of sentencing for a later date. Thus, the Jackson court did not squarely address the issue presented now: whether, after completing sentencing, a district court may hold another hearing to make an additional factual finding and order registration.
Second, Jackson is distinguishable because the Supreme Court considered the lifetime registration order to be required if any one of Jackson's juvenile adjudications counted as a prior conviction of an offense requiring registration. See K.S.A.2011 Supp. 22–4906(c). The Supreme Court did not discuss the language in K.S.A.2011 Supp. 22–4902(e)(2) requiring the district court to make a finding that a deadly weapon was used in the commission of the crime. In Carlson's case, the registration order was not mandatory. Carlson is only required to register as a violent offender if the district court first makes a finding on the record that a deadly weapon was used in the commission of a person felony. See K.S.A.2011 Supp. 22–4902(e)(2). KORA does not require the district court to find that a deadly weapon was used in the commission of a person felony; it just requires that the district court must impose registration if it makes such a finding. Here, the district court failed to make the threshold finding; thus, it was not required to impose registration. Accordingly, Jackson does not control the outcome of Carlson's case.
The State also advances two ways in which this court should “construe a finding of a deadly weapon.” First, the State contends that the finding Carlson used a deadly weapon in the commission of his crime may be implied because of the facts Carlson acknowledged throughout the proceedings in this case. At the plea hearing, the State alleged a factual basis in which Carlson walked into a QuikTrip, armed with a serrated kitchen knife, and demanded money from the cashier. Carlson agreed at the plea hearing that the State had presented an accurate statement of the facts. At the sentencing hearing, Carlson's attorney referred to the knife that was used in the robbery. When the judge asked what had happened to the knife, Carlson replied, “It's gone now, sir.”
K.S.A.2011 Supp. 22–4902(e)(2) requires the district court to make a finding on the record that a deadly weapon was used in the commission of a person felony in order for the district court to order the defendant to register as a violent offender. The only legal authority the State cites for the proposition that this court may infer such a finding from the proceedings in district court is State v. Denmark–Wagner, 292 Kan. 870, 258 P.3d 960 (2011). In that case, the defendant was convicted of first-degree murder and the district court ordered lifetime registration. As previously indicated, the district court can order lifetime registration upon a second or subsequent conviction of an offense requiring registration. See K.S.A.2011 Supp. 22–4906(c).
On appeal, the defendant challenged the order for lifetime registration. In analyzing the registration order, our Supreme Court noted that the journal entry of judgment stated that the defendant was required to register as a violent offender “because of his conviction of a person felony with a finding on the record that the felony was committed with a deadly weapon.” 292 Kan. at 883. The court observed that the district court did not appear to have made any specific findings on the record that the defendant committed the crime with a deadly weapon. Rather, the record reflected that the district court asked the defendant at the plea hearing if the State's assertion of the facts was substantially correct. Our Supreme Court then stated:
“Even if the district court's question to [defendant] could be construed as leading to a finding that the crime was committed with a deadly weapon, there appears to be no showing in the record that such a use of a deadly weapon was a second or subsequent crime requiring lifetime registration.” 292 Kan. at 883.
The Supreme Court ultimately vacated the order for lifetime registration because there was no evidence in the record that the defendant's first-degree murder conviction was a second or subsequent conviction of an offense requiring registration. 292 Kan. at 884.Denmark–Wagner does not stand for the proposition that an appellate court may infer a finding that a deadly weapon was used from the proceedings in district court. The inconclusive language in the court's decision about an implied finding is dicta and did not control the outcome of the case. The plain statutory language requires the district court to make “a finding on the record that a deadly weapon was used in the commission of such person felony.” See K.S.A.2011 Supp. 22–4902(e)(2). When a statute is plain and unambiguous, an appellate court will not read into the statute something not readily found in it. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
Second, the State argues that this court may infer the required finding from the district court's acceptance of Carlson's plea to aggravated robbery. Here, Carlson pled guilty to aggravated robbery, which is defined as a robbery committed by a person who (1) is armed with a dangerous weapon or (2) inflicts bodily harm upon any person in the course of the robbery. See K.S.A.2011 Supp. 21–5420(a)–(b). The State argues that because there was no allegation that Carlson inflicted bodily harm upon anyone during the robbery, the district court must have been satisfied that there was a factual basis that a deadly weapon was used in the crime. But we note that the use of a dangerous weapon as referenced in the aggravated robbery statute does not necessarily equate to the use of a deadly weapon under KORA. And again, the State's argument does not address or justify why this court should read out of the statute the plain-language requirement that a court must find on the record that a deadly weapon was used in the commission of the person felony before ordering registration under KORA.
In summary, registration is considered a part of sentencing. Jackson, 291 Kan. at 37. Sentencing in a criminal case is effective when the district court pronounces the sentence from the bench. 291 Kan. at 35. Once the district court pronounces sentence, the district court has no jurisdiction to change or modify the sentence. A district court is powerless to vacate a sentence and impose a harsher sentence once it has pronounced sentence. 291 Kan. at 35. In Carlson's case, the district court could only order registration if the court made a finding on the record that a deadly weapon was used in the commission of the crime. The district court completed Carlson's sentencing hearing without making any such finding on the record. As a result, the district court lacked jurisdiction to later modify Carlson's sentence by ordering registration under KORA. Therefore, the registration order must be vacated.
Vacated in part and remanded with directions.