Opinion
No. 106,903.
2013-02-15
STATE of Kansas, Appellee, v. Kristopher W. HALL, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kristopher W. Hall pled guilty to an offender registration violation after failing to register as a drug offender. Following sentencing, Hall moved to withdraw his plea or, in the alternative, to correct his illegal sentence. With respect to the latter, he argued that his sentence violated the Ex Post Facto Clause of the United States Constitution because the registration requirement became law after Hall committed the offense for which he is now required to register. This appeal follows the district court's denial of relief on Hall's motion.
Hall was convicted of a drug offense in 2006. At the time, the law did not require him to register as a drug offender. In 2007, the Kansas Legislature amended the Kansas Offender Registration Act (KORA) to require certain drug offenders, including Hall, to register during their birth month and to report to the local sheriff's office every 4 months thereafter to verify and update the registration information. See K.S.A. 22–4904(c). This law applied retroactively and required Hall to register as a drug offender upon his release from prison. Hall was released from prison in August 2009, and he registered as an offender. He renewed his registration in October 2009.
Hall's birth month is December. In accordance with K.S.A. 22–4904(c), he was required to report and update his registration information in December 2009. He failed to do so. On December 26, 2009, Hall was arrested on an unrelated charge and was in jail for the rest of the month. He later claimed that it had been his plan to register in the last few days of December 2009, but he was precluded from doing so when he was taken into custody.
In January 2010, the State charged Hall with an offender registration violation pursuant to K.S.A. 22–4903 and K.S.A. 22–4904(c). In June 2010, Hall pled guilty to the charge as part of a plea agreement with the State. At Hall's August 2010 sentencing, the State recommended a downward durational departure, which the court granted. The court sentenced Hall to 30 months' imprisonment.
In March 2011, Hall filed the motion at issue here. He argued that he should be allowed to withdraw his plea or, in the alternative, have his sentence vacated because the law as applied to him violated ex post facto principles.
In this appeal, Hall contends that he should be allowed to withdraw his guilty plea to prevent manifest injustice. His claim on appeal is that there was an insufficient factual basis for the district court to accept his guilty plea; therefore, he should have been allowed to withdraw it. He argues that the State failed to prove that he would not have registered during the last few days of December 2009 had he not been put in jail on December 26, 2009.
The State contends that Hall's argument is not properly before this court because it was not raised before the district court. Hall's sole argument before the district court was that his conviction violated the Ex Post Facto Clause of the United States Constitution. But Hall maintains that an exception to the general rule permits us to address this claim on appeal.
Generally, issues not raised before the district court cannot be raised on appeal. See State v. Leshay, 289 Kan. 546, 553, 213 P .3d 1071 (2009). However, there are several exceptions, including the exception that the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). Hall claims that his argument meets this exception. He relies on State v. Ford, 23 Kan.App.2d 248, 25–54, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997), overruled in part on other ground by State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008), in which the appellate court heard for the first time on appeal the argument that the district court erred in accepting the defendant's guilty plea because a factual basis was not established for all of the elements of the offense charged. Here, Hall makes the same argument on appeal. Under the circumstances, we will consider Hall's argument.
We will not disturb a district court's denial of a motion to withdraw a plea after sentencing unless the defendant establishes an abuse of discretion. State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
We note at the outset that Hall does not argue that his counsel was ineffective at the sentencing hearing, that he was misled into making his plea, or that he did not understand his actions when he pled guilty. See State v. Bricker, 292 Kan. 239, 244–45, 252 P.3d 118 (2011).
There is no dispute that under K.S.A. 22–4904(c) Hall was required to appear at the sheriff's office in December 2009 to update his registration information. But Hall claims that his incarceration in late December excused him from having to update his registration information. He relies on K.S.A. 22–4906(b), which provides in part:
“Upon the first conviction, liability for registration terminates, if not confined, at the expiration of 10 years from the date of conviction, or, if confined, at the expiration of 10 years from the date of parole, discharge or release, whichever date is most recent. The ten-year period shall not apply to any person while the person is incarcerated in any jail or correctional facility.” (Emphasis added.)
K.S.A. 22–4906(b) does not excuse Hall's failure to register during the month of December. This statute merely tolls and extends the 10–year registration period during periods of incarceration. Hall was not incarcerated until December 26. His incarceration on December 26 does not excuse his failure to comply during the days in December before his arrest.
But Hall argues that the State provided no evidence that Hall's failure to appear at the sheriff's office in December was intentional. He relies on In re C.P.W., 289 Kan. 448, 453, 213 P.3d 413 (2009), for support. He claims that he is being punished for mere procrastination.
Hall fails to acknowledge that the charge against him was that he “unlawfully and intentionally fail[ed] to report in person once during the month of the defendant's birthday.” When accepting a plea, the district court must establish that there is a factual basis for the plea. K.S.A.2009 Supp. 22–3210(a)(4). “In establishing a factual basis for the plea, the trial court must establish that all elements of the crime charged are present.” State v. Shaw, 259 Kan. 3, 7, 910 P.2d 809 (1996).
“The requirement of a factual basis for a plea may be satisfied by a complaint or information given or read to the defendant which sets forth the factual details and essential elements of the particular crime charged, by the evidence presented to the court by the prosecutor, by a statement of the facts made by the defendant at the hearing, or if the judge accepting the defendant's plea conducted the defendant's preliminary examination. [Citation omitted .]” 259 Kan. at 10–11.
In his plea agreement, Hall acknowledged that he received and read this charge against him and discussed it with his lawyer. The charging document alleged that Hall intentionally failed to report. At his plea hearing, Hall told the court that he understood the charge. He told the court that he was pleading guilty to the charge because “I failed to register as an offender.” We conclude that this constituted a sufficient factual basis upon which the court could accept Hall's plea and find him guilty.
Returning to the argument raised before the district court, Hall argues that we should vacate his sentence because it violates the Ex Post Facto Clause of the United States Constitution.
The KORA was amended in 2007, after Hall's drug conviction, to require that certain drug offenders register once released from incarceration. See K.S.A. 22–4901 et seq. The law as it existed at the time of Hall's drug conviction did not require Hall to register. The 2007 amendments applied retroactively; therefore, Hall became obligated to register after he was released from prison in August 2009. Hall contends that to require him to register is a form of punishment that “cannot be applied against him retroactively without violating the Ex Post Facto Clause.”
The constitutionality of a statute is a question of law over which we have unlimited review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996). The issue is controlled by our Supreme Court's decisions in Myers and State v. Armburst, 274 Kan. 1089, Syl. ¶¶ 3–4, 59 P.3d 1000 (2002).
In 1991, Myers was convicted of sexual battery and rape before enactment of the Kansas Sex Offender Registration Act (KSORA), which later became KORA. Myers argued that because KSORA was not in place at the time of his offense, it violated the Ex Post Facto Clause as applied to him. The Myers court disagreed and concluded that the registration requirements were remedial and constitutional, 260 Kan. at 671, and the imposed registration requirements' purpose was not punitive, but for public safety. 260 Kan. at 681.
In Armburst, the Kansas Supreme Court held that KORA did not violate the Ex Post Facto Clause. 274 Kan. 1089, Syl. ¶ 4. The Armburst court recognized that the Kansas Legislature may amend the registration laws to affect persons who have already committed crimes that require registration. See 274 Kan. at 1090–94.
The United States Supreme Court also has upheld the constitutionality of offender registration laws. In Smith v. Doe, 538 U.S. 84, 105–06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the Court held that Alaska's sex offender registration act was not punitive and did not violate the Ex Post Facto Clause. The Smith Court held that the registration requirement served to “make a valid regulatory program effective and [did] not impose punitive restraints in violation of the Ex Post Facto Clause.” 538 U.S. at 102.
Finally, Hall argues that the imposition of a $20 registration fee under the KORA forces a convicted offender “to pay $20 for the privilege of moving or changing job or educational circumstances.” We find the registration fee is not punitive. See State v. Weis, 47 Kan.App.2d 703, 719, 280 P.3d 805 (2012) (holding that the $20 registration fee is “a reasonable way to reimburse sheriffs' offices for services provided in the regulatory scheme”), petition for rev. filed July 16, 2012. The fee is similar to Board of Indigents' Defense Services fees, which our Supreme Court has held are for recoupment as opposed to punishment. See State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006).
The district court did not err in rejecting Hall's ex post facto challenge to the KORA.
Affirmed.