Opinion
No. 110,706.
2014-11-7
STATE of Kansas, Appellee, v. Justin Lester MOORE, Appellant.
Appeal from Johnson District Court; Kevin P. Moriarty and Timothy P. McCarthy, Judges.Heather Cessna, of Kansas Appellate Defender Office, for appellant.Paul E. Brothers, legal intern, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Kevin P. Moriarty and Timothy P. McCarthy, Judges.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Paul E. Brothers, legal intern, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Justin Lester Moore 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. Because we find the district court's order mandating registration was valid under K.S.A.2013 Supp. 22–4906(a)(1)(F) and (Q), we affirm the district court.
Factual and Procedural Background
In keeping with a plea agreement, Moore pled no contest to attempted first-degree murder, a severity level 1 person felony, in violation of K.S.A.2012 Supp. 21–5301 and K.S.A.2012 Supp. 21–5402. During the plea hearing, the State provided the following factual basis for Moore's plea:
“Had this matter gone to trial, the evidence in this case would have shown that on July 2nd, 2012, Ashley Gonzalez, who is over the age of 18, was located at the residence of Kevin Irvin in Lenexa, Johnson County, Kansas. While at that residence, Ms. Gonzalez began to receive text messages from [Moore]. [Moore] and Miss Gonzalez had previously been in a dating relationship. [Moore] also being over the age of 18.
“The text messages threatened to kill Miss Gonzalez. Miss Gonzalez stayed at the apartment; [Moore] came over to the apartment. When [Moore] came over to the apartment, Miss Gonzalez and Mr. Irvin went outside to meet [him]. [Moore] got out of his vehicle, retrieved a firearm, a shotgun, and pointed it at Miss Gonzalez. Miss Gonzalez ran back into the apartment complex and [Moore] fired one shot which struck the building close to the entrance at which Miss Gonzalez had just entered.”
At sentencing, although Moore acknowledged that “[t]he law says he will register for fifteen years” under KORA, Moore objected to the imposition of such a requirement. Moore argued that KORA was unconstitutionally overbroad as applied to him because the registration term was excessive, he did not pose a danger to society, his crime was “a one-time deal with a bad relationship,” and, other than invoking fear, his crime did not harm anyone.
The State countered that KORA obligated Moore to register as a violent offender under two separate provisions, K.S.A.2013 Supp. 22–4906(a)(l)(F) and (Q) (conviction of attempted first-degree murder) and K.S.A.2013 Supp. 22–4906(a)(l)(M) and (Q) (use of a deadly weapon in the commission of an attempted person felony).
Without elaboration, the district court overruled Moore's objection and sentenced him to a downward durational departure sentence of 100 months' incarceration. The district judge then stated: “[Moore] will be required to register.” The journal entry of sentencing was more specific, however, stating that Moore was to register as a violent offender under KORA for 15 years due to his conviction for attempted first-degree murder and his attempted commission of a “person felony with court finding on the record that such felony was committed with a DEADLY WEAPON.”
Moore filed this timely appeal.
Analysis
On appeal, Moore contends the district court erred when it ordered him to register under K.S.A.2013 Supp. 22–4906(a)(1)(M) and (Q) because it failed to make the necessary factual finding on the record that Moore used a deadly weapon during the commission of the offense. Additionally, Moore insists that if the district court had made such a finding, application of K.S.A.2013 Supp. 22–4906(a)(1)(M) and (Q) in this case violated his constitutional rights in a manner prohibited by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, Moore argues that any fact that increases a defendant's maximum penalty must be presented to a jury and proven beyond a reasonable doubt.
At the outset, it is necessary to review KORA's statutory provisions. Under KORA, a “ ‘[v]iolent offender’ “ includes any person convicted of: (1) any of the offenses enumerated in the statute; (2) “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”; and (3) an attempt, conspiracy or criminal solicitation of an offense enumerated in the statute. K.S.A.2013 Supp. 22–4902(e)(1)(A)–(I), (2), (4). In other words, a defendant convicted of attempting any of the listed crimes—which include first-degree murder—qualifies as a violent offender subject to KORA's registration requirements without any specific finding by the court. (Emphasis added.) See K.S.A.2013 Supp. 22–4902(e)(1)(A)–(I), (4).
Alternatively, a district court may classify a defendant convicted of an attempted person felony as a violent offender if the court makes a finding on the record that the defendant used a deadly weapon in the commission of that person felony. K.S.A.2013 Supp. 22–4902(e)(2), (4).
Under either scenario, KORA requires an offender receiving a first conviction for attempted first-degree murder, or any attempted person felony committed with a deadly weapon, to register “if confined, 15 years after the date of parole, discharge or release, whichever date is most recent, or, if not confined, 15 years from the date of conviction.” K.S.A.2013 Supp. 22–4906(a)(1)(F), (M), and (Q).
It is important to note that Moore does not challenge the district court's finding that his attempted first-degree murder conviction obligates him to register under K.S.A.2013 Supp. 22–4906(a)(1)(F) and (Q), As a consequence, Moore has waived any appellate review regarding the validity of this finding and order. See State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011) (issues not briefed by the appellant or points raised incidentally in a brief and not argued therein are deemed waived and abandoned).
Moreover, because the district court's order obligating Moore to register as a violent offender was valid under K.S.A.2013 Supp. 22–4906(a)(l)(F) and (Q) due to his conviction for attempted first-degree murder, Moore's argument relating to the deadly weapon alternative set forth in K.S.A.2013 Supp. 22–4906(a)(l)(M) is “purely academic.” See State v. Keith, No. 102,965, 2011 WL 1376887, at *1 (Kan.2011) (unpublished opinion). As our Supreme Court explained in Keith, which involved factual circumstances nearly identical to those present in this case, “Even if we were to reject the State's argument that the finding need not be stated at the sentencing but merely be in the record of the case, the error would be harmless.” See 2011 WL 1376887, at *1.
Finally, with regard to the Apprendi issue, we note that Moore raised this argument with regard to K.S.A.2013 Supp. 22–4906(a)(1)(M) and (Q), but not with regard to K.S.A.2013 Supp. 22–4906(a)(1)(F) and (Q). As a result, this issue is also waived with regard to K.S.A.2013 Supp. 22–4906(a)(1)(F) and (Q). See Anderson, 291 Kan. at 858. Regardless, we note in passing that our court has repeatedly held that a district court's finding that a defendant used a deadly weapon in the commission of the crime does not violate the defendant's rights under Apprendi. See. e.g., State v. Weis, 47 Kan.App.2d 703, 717–19, 280 P.3d 805 (2012), petition for rev. filed July 16, 2012; State v. Unrein, 47 Kan.App.2d 366, 369–72, 274 P.3d 691 (2012), rev. denied 297 Kan. 1256(2013).
In conclusion, the district court did not err in ordering Moore to register pursuant to K.S.A.2013 Supp. 22–4906(a)(1)(F) and (Q) because he was convicted of attempted first-degree murder. Whether the district court's registration order was appropriate under K.S.A.2013 Supp. 22–4906(a)(1)(M) and (Q) and Apprendi is an academic question under these circumstances and is moot. Accordingly, we decline to review this issue. See State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012); Keith, 2011 WL 1376887, at *1.
For the reasons discussed, we affirm the district court's order requiring Moore to register under KORA pursuant to K.S.A.2013 Supp. 22–4906(a)(1)(F) and (Q).
Affirmed.