Opinion
111,227.
04-17-2015
STATE of Kansas, Appellee, v. Christopher MARINELLI, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher Marinelli contends that the trial court erred when it determined that he was required to register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A.2012 Supp. 22–4901 et seq. Marinelli asserts that the trial court erred because he was never told of his duty to register when he was convicted of aggravated assault as required by K.S.A.2012 Supp. 22–4904(a)(1)(A). Moreover, Marinelli asserts that the trial court erred because it failed to make an on the record finding that he had used a deadly weapon in the commission of the aggravated assault as required by K.S.A.2012 Supp. 22–4902(e)(2). Finding no reversible errors, we affirm.
The State charged Marinelli with one count of aggravated assault, a severity level 7 felony, in violation of K.S.A.2012 Supp. 21–5412(b)(1). According to the information, on May 3, 2013, Marinelli put the victim “in reasonable apprehension of immediate bodily harm with a deadly weapon, to wit: a knife.”
Marinelli and the State ultimately entered into a plea agreement. Under the plea agreement, if Marinelli pled guilty or no contest to the one count of aggravated assault, the State agreed to jointly recommend immediate probation, jointly recommend an interstate compact with California, Marinelli's state of residency, and not file any additional charges related to this case. The plea agreement did not mention KORA registration. Marinelli also signed a “Defendant's Acknowledgement of Rights and Entry of Plea” form. In this form, subsection 7 states: “I have been informed that as a result of my plea I will not be required to register as provided by the Kansas Offender Registration Act.”
At the plea hearing, the trial judge read the information on the record, which included the language that Marinelli placed the victim “in reasonable apprehension of immediate bodily harm with a deadly weapon.” After the trial judge read the information, he asked Marinelli if he understood what he had read. Following the plea colloquy, the trial judge accepted Marinelli's no contest plea and found Marinelli guilty of aggravated assault as charged in the information. The trial judge never told Marinelli that he was required to register under KORA. The trial judge made no statements regarding whether Marinelli committed the aggravated assault with a deadly weapon.
At the sentencing hearing, Marinelli's attorney told the trial court that he had some questions about whether the court could order Marinelli to register under KORA. The trial court then sentenced Marinelli to 24 months' probation with an underlying prison sentence of 12 months, addressing the registration issue after a recess. After the recess, Marinelli's attorney objected to the State's assertion that Marinelli must register under KORA. Marinelli's attorney explained that the trial court had failed to notify Marinelli of his duty to register under K.S.A.2012 Supp. 22–4904(a)(1)(A) when he was convicted or make a finding that Marinelli had committed the aggravated assault with a deadly weapon on the record under K.S.A.2012 Supp. 22–4902(e)(2).
The trial court then made the following finding:
“The Court finds that the failure to accomplish this at the time of the conviction was a procedural error and that it does not excuse registration. That registration is required under 22–4902(e)(2). And that the inherent element of the offense of which he was convicted included reasonable apprehension of immediate bodily harm with a deadly weapon and not requiring a further finding. And it may be further practice to make a further finding but that was inherent to this particular offense. The Court will direct registration be ordered, unless you wish to pursue the alternative of asking to withdraw his plea because of the lack of knowledge of the registration requirement.”
Marinelli did not wish to withdraw his plea. The trial judge then signed the order for registration.
Did the Trial Court Err When It Found that Marinelli Was Required to Register Under KORA?
On appeal, Marinelli contends that the trial court erred in determining that he was required to register under KORA because the trial court did not comply with either K.S.A.2012 Supp. 22–4904(a)(1)(A) or K.S.A.2012 Supp. 22–4902(e)(2). As discussed below, the trial court failed to comply with both K.S.A.2012 Supp. 22–4904(a)(1)(A) and K.S.A.2012 Supp. 22–4902(e)(2).
Because this issue involves interpretation of a statute, this court has unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). In statutory construction, the most fundamental rule is that the intent of the legislature governs if that intent can be ascertained. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). Thus, this court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014). Moreover, when a statute is plain and unambiguous, this court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).
In this case, Marinelli committed the aggravated assault on May 3, 2013. Consequently, the 2011 amendments of KORA apply. K.S.A.2012 Supp. 22–4904(a)(1)(A) states: “At the time of conviction or adjudication for an offense requiring registration as provided in K.S.A. 22–4902, and amendments thereto, the court shall: (A) Inform any offender, on the record, of the procedure to register and the requirements of K.S.A. 22–4905, and amendments thereto.” K.S.A.2012 Supp. 22–4902(e)(2) states that 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.”
At the plea hearing when Marinelli was convicted, the trial judge did not inform Marinelli of his duty to register under KORA. Moreover, no discussions regarding KORA registration occurred. The State, like the trial judge at sentencing, argues that this error was remedied when the trial judge informed Marinelli of his duty to register at the sentencing hearing. Finally, the State contends that based on this court's holding in State v. Simmons, 50 Kan.App.2d 448, 451, 329 P.3d 523 (2014), petition for rev. filed July 25, 2014, that offender registration arises automatically by operation of law as a nonpunitive collateral consequence of the judgment, it does not matter that the trial court failed to inform Marinelli of offender registration at the time of his conviction.
The State is correct. 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.
Based on the Simmons holding, Marinelli's arguments fail. Accordingly, we affirm.
Affirmed.