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State v. McCall

Court of Appeals of Kansas.
Mar 15, 2013
296 P.3d 1141 (Kan. Ct. App. 2013)

Opinion

No. 107,112.

2013-03-15

STATE of Kansas, Appellee, v. Laurence McCALL, a/k/a Lawrence Drake McCall, Appellant.

Appeal from Shawnee District Court; Mark S. Braun, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Shawnee District Court; Mark S. Braun, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.

MEMORANDUM OPINION


PER CURIAM.

In March 2010, Laurence McCall was charged with aggravated battery and criminal restraint after an incident in which McCall stabbed Becky Garcia in her left shoulder with a large butcher knife. In May 2010, McCall pled no contest to the aggravated battery charge, and the charge of criminal restraint was dismissed.

On July 12, 2010, the district court sentenced McCall to 32 months in prison. The district court made a finding, on the record, that McCall used a deadly weapon and ordered McCall to register as an offender. McCall did not object. McCall now appeals the order to register as an offender.

McCall argues the district court violated his constitutional rights by requiring him to register as an offender. Specifically, he argues the registration requirement increased his punishment and any fact that increased his punishment should have been proven to a jury beyond a reasonable doubt. However, the State points out that appellate courts have ruled against this argument several times.

McCall did not object to the registration requirement at sentencing and is making his argument for the first time on appeal. While ordinarily an objection would have to be made, we may consider McCall's argument because it alleges a violation of fundamental rights under the Sixth and Fourteenth Amendments to the United States Constitution. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). A constitutional challenge is a question of law over which we have unlimited review. State v. Carr, 274 Kan. 442, 444–45, 53 P.3d 843 (2002).

The definition of an “offender” under the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , 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.” K.S.A.2010 Supp. 22–4902(a)(7). An offender must register with the sheriff of the county where the offender resides, works, and or attends school. See K.S.A.2010 Supp. 22–4904(a)(1)(5). Here, the district court made a finding on the record that McCall used a deadly weapon during his crime, so he would be required to register under KORA.

McCall argues his constitutional rights were violated because a jury did not make the finding that resulted in an increased penalty. And the United States Supreme Court requires that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Here, the question is whether offender registration increases the penalty for a crime. McCall concedes this court has ruled against his argument that Apprendi applies to a finding that results in offender registration. See State v. Chambers, 36 Kan.App.2d 228, 239, 138 P.3d 405,rev. denied 282 Kan. 792 (2006) (“ Apprendi does not apply to a sentencing judge's finding beyond a reasonable doubt that an offense was sexually motivated which results in imposition of the provisions of the KORA.”). Many other panels of this court have agreed that Apprendi also does not apply to a sentencing judge's finding that a deadly weapon was used in the commission of a crime, resulting in a registration requirement. State v. Weis, 47 Kan.App.2d 703, 717–19, 280 P.3d 805 (2012), petition for review filed July 16, 2012; State v. Unrein, 47 Kan.App.2d 366, 372, 274 P.3d 691 (2012), petition for review filed May 21, 2012; State v. Urista, 45 Kan.App.2d 93, 97–98, 244 P.3d 287 (2010), rev. granted 291 Kan. 917 (2011); State v. Franklin, 44 Kan.App.2d 156, 160–62, 234 P.3d 860 (2010), petition for review filed August 2, 2010; State v. Dobyns, No. 106,228, 2012 WL 3289968, at *1–2 (Kan.App.2012) (unpublished opinion), petition for review filed September 10, 2012; State v. Fields, No. 105,543, 2012 WL 3171795, at *8 (Kan.App.2012) (unpublished opinion), petition for review filed September 4, 2012; State v. Everett, No. 103,067, 2011 WL 3250559, at *4–5 (Kan.App.2011) (unpublished opinion), petition for review filed August 22, 2011.

The United States Supreme Court has concluded that sex-offender registration accessible by the public on the Internet is not punitive. Smith v. Doe, 538 U.S. 84, 99, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (“The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender.”). In Chambers, this court reviewed Kansas Supreme Court precedent and distinguished between sentences and punishment. 36 Kan.App.2d at 237–39. This court found that an increased sentence implicates Apprendi, but an increased punishment does not. Chambers, 36 Kan.App.2d at 237 (citing Carr, 274 Kan. at 451–52). This court held that an order to register as an offender does not increase a defendant's imposed sentence beyond the statutory maximum, so Apprendi does not apply. Chambers, 36 Kan.App.2d at 239. Recently, this court also agreed that any stigma associated with offender registration is not punishment. Weis, 47 Kan.App.2d at 719 (“The stigma [the defendant] might expect to suffer from registration is not an increase in sentence or punishment but a collateral consequence of his registration as an offender.”); Unrein, 47 Kan.App.2d at 371.

Chambers followed Kansas Supreme Court precedent to conclude that Apprendi only applies to sentences increased in duration, even if registration could be considered an increase in punishment. 36 Kan.App.2d at 239. We are duty bound to follow Kansas Supreme Court precedent unless there is some indication the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Because there is no indication that the Kansas Supreme Court is departing from its precedent on this issue, the district court's order for McCall to register as an offender is affirmed.

Affirmed.


Summaries of

State v. McCall

Court of Appeals of Kansas.
Mar 15, 2013
296 P.3d 1141 (Kan. Ct. App. 2013)
Case details for

State v. McCall

Case Details

Full title:STATE of Kansas, Appellee, v. Laurence McCALL, a/k/a Lawrence Drake…

Court:Court of Appeals of Kansas.

Date published: Mar 15, 2013

Citations

296 P.3d 1141 (Kan. Ct. App. 2013)