Opinion
112,005.
05-08-2015
STATE of Kansas, Appellee, v. Don D. FLOYD, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Don D. Floyd appeals from the district court's order denying his motion to correct an illegal sentence, alleging that the lifetime registration requirement of his sentence was illegal because the district court did not find on the record at sentencing that his crime of conviction was sexually motivated. Because we find no error by the district court, we affirm.
In April 2012, the State charged Floyd with one count of rape pursuant to K.S.A.2014 Supp. 21–5503(a)(3). Twelve months later, Floyd agreed to plead no contest to the charge in exchange for the State's agreement to request a sentence of no more than 180 months' imprisonment. The district court accepted Floyd's no contest plea and found him guilty of rape. At the sentencing hearing, the court granted Floyd's motion for a durational departure and sentenced him to 116 months' incarceration, plus it ordered lifetime postrelease supervision. The district court also ordered lifetime registration. Floyd did not file a direct appeal from the sentence imposed.
On November 7, 2013, Floyd filed a pro se motion to correct an illegal sentence pursuant to K.S.A. 22–3504(1). In his motion, Floyd alleged that the lifetime registration requirement in his sentence was illegal because the district court did not make a finding on the record at sentencing that his crime of conviction was sexually motivated. The district court denied Floyd's motion.
Floyd timely appeals and asks us to proceed without briefing under Supreme Court Rule 7.041 A (2014 Kan. Ct. R. Annot. 66). Our court granted this motion, and the State did not file a response.
The Kansas Offender Registration Act specifically requires any person convicted of rape to register for that person's lifetime. K.S.A.2014 Supp. 22–4906(d)(1). Because rape is deemed by statute to be an offense specifically requiring lifetime registration, the district court was not required to make an independent factual determination that the crime was sexually motivated to impose lifetime registration. Therefore, even assuming that the registration requirement is part of Floyd's sentence, his sentence is not illegal. See State v. Simmons, 50 Kan.App.2d 448, 458, 329 P.3d 523 (2014) (registration requirement not part of an offender's sentence).
Floyd's motion for summary disposition also contains two other allegations of error which were not raised before the district court in his motion to correct an illegal sentence. First, Floyd contends that the district court's order of lifetime postrelease supervision violated his rights under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. However, under State v. Naputi, 293 Kan. 55, 67, 260 P.3d 86 (2011), “the issue of cruel and/or unusual punishment will not be reviewed for the first time on appeal because it requires the district court's findings upon the three-part test established in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).”
Second, Floyd alleges his right to due process and his rights under the Sixth Amendment to the United States Constitution were violated when the district court increased his sentence based on his prior criminal history. As the Kansas Supreme Court previously decided this issue against him in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), we reject Floyd's claim as well.
Affirmed.