Opinion
No. 109,717.
2014-10-24
STATE of Kansas, Appellee, v. Taylor B. PERCIADO, Appellant.
Appeal from Sedgwick District Court; Eric A. Commer, Judge.Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric A. Commer, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., STEGALL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Taylor Perciado appeals the trial court's determination that it lacked subject matter jurisdiction to consider his motion which challenged the retroactive application of the 2011 amendments to the Kansas Offender Registration Act (KORA), K.S.A. 22–4901, et seq. On appeal, Perciado maintains that the trial court had subject matter jurisdiction to address the merits of his claims as a motion to correct an illegal sentence. He further argues that the retroactive application of the 2011 amendments to KORA is punitive and violates the Ex Post Facto Clause of the United States Constitution. Because we determine that the trial court lacked subject matter jurisdiction to consider the merits of Perciado's claims, we dismiss his appeal.
On October 14, 2003, Perciado was charged with two counts of aggravated criminal sodomy in the juvenile department of Wyandotte County District Court. Perciado pled guilty to one count of aggravated criminal sodomy and was adjudicated a juvenile offender. The Wyandotte County District Court then transferred venue to the juvenile department of the Sedgwick County District Court for sentencing.
On December 12, 2003, the court ordered that Perciado be committed to a juvenile correctional facility for a term of 36 months, with 12 months of conditional release. The trial court also recommended that Perciado be provided sex offender and substance abuse treatment.
On April 23, 2012, Perciado, through counsel, moved to allow his juvenile court matters to be filed in criminal court now that he was an adult. Perciado also argued in his motion that he was challenging the retroactive application of the 2011 amendments to the KORA. Perciado then requested to join the challenges made in the trial court case of State v. Ward, No. 99 CR 1751, filed in Sedgwick County District Court, that raised the same argument.
The trial court granted Perciado's motion, allowing his juvenile matters to be addressed in criminal court.
After considering its rulings in Ward, the trial court similarly held that it had no jurisdiction to consider Perciado's claims. As in Ward, the trial court held that it did not have jurisdiction to hear or rule on Perciado's constitutional challenges or motions in a criminal case because (1) the trial was completed; (2) the probation was completed or terminated or a felony sentence of imprisonment had been placed into effect; (3) the appeal rights were exhausted or expired; and (4) the conviction had not been expunged. The trial court advised that its ruling did not prevent Perciado from bringing his claims in a civil action.
Did the Trial Court Lack Subject Matter Jurisdiction to Consider the Merits of Perciado's Claims?
Perciado's main argument is that amendments to KORA—which were enacted in 2011—violate the Ex Post Facto Clause of the United States Constitution. Perciado points out that his conviction originally required him to register as an offender for 10 years, but the 2011 KORA amendments now required him to register for 25 years. Perciado contends that the effects of the 2011 amendments to KORA are punitive and therefore retroactive application is a violation of the Ex Post Facto Clause. To the contrary, the State asserts that the trial court properly dismissed Perciado's motions for lack of subject matter jurisdiction.
For the first time on appeal, Perciado argues that the trial court had jurisdiction to consider the merits of his claim as a motion to correct an illegal sentence under K.S.A. 22–3504. In response, the State maintains that the trial court properly dismissed Perciado's claims for lack of jurisdiction. The State contends that the trial court lacked jurisdiction over claims raised regarding Perciado's previously adjudicated criminal case and, therefore, the case was properly dismissed.
Whether jurisdiction exists is a question of law over which appellate courts exercise unlimited review. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014). Moreover, an appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, an appellate court must dismiss the appeal. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). To the extent this case will require statutory interpretation, such interpretation is a question of law over which an appellate court has unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
We must first consider Perciado's illegal sentence argument that was not raised before the trial court. Perciado maintains that this court can address his illegal sentence argument because “registration was a part of sentencing and ... the enforcement of the original sentence was raised by [Mr. Perciado].”
Appellate courts may consider a defendant's illegal sentence arguments for the first time on appeal. Under K.S.A. 22–3504(1), Kansas courts have “specific statutory jurisdiction to correct an illegal sentence at any time.” State v. Scherzer, 254 Kan. 926, 930, 869 P.2d 729 (1994); see also State v. Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013) (“This court may correct an illegal sentence sua sponte.”).
Whether a sentence is illegal is a question of law over which appellate courts have unlimited review. Under K.S.A. 22–3504, an illegal sentence is defined as: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of punishment authorized; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. See State v. Gilbert, 299 Kan. ––––, Syl. ¶ 2, 326 P.3d 1060 (2014).
We can quickly dispose of Perciado's offender registration argument based on this court's recent holding in State v. Simmons, 50 Kan.App.2d 448, 329 P.3d 523 (2014). In Simmons, our court held that offender registration is not part of a defendant's sentence. In reaching this ruling, 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, 325 P.3d 1192.
Because offender registration was not part of Perciado's sentence his illegal sentence argument fails. Consequently, this court lacks jurisdiction to consider Perciado's offender registration argument.
The Trial Court's Jurisdiction Finding
In the alternative, we will consider the trial court's lack of subject matter jurisdiction holding.
In Ward, the trial court held that “[t]here is no ... provision of state statute that would allow the defendant to file a motion of constitutional objection within his/her district court criminal case after the sentence has been satisfied and all requirements of parole have been satisfied. Therefore, the district court is without jurisdiction in this criminal case to entertain the defendant's motion”
Following its Ward holding, the trial court ruled in this case:
“[T]he district court does not have jurisdiction to hear or rule on such a constitutional challenge or other motion within a criminal case for which 1) the trial has been completed; and 2) probation has been completed or terminated or a felony sentence of imprisonment has been placed in effect; and 3) appeal rights have expired or been exhausted; and 4) for which the conviction has not been expunged.”
The trial court explained that its ruling did not prevent Perciado from asserting his constitutional challenges in an appropriately filed civil action, such as a declaratory judgment.
Thus, the question before this court is whether the trial court properly determined that it lacked jurisdiction to address the merits of Perciado's case in his previously adjudicated criminal case.
“Subject matter jurisdiction establishes the court's authority to hear and decide a particular action. It cannot be conferred by consent, waiver, or estoppel. Nor can parties convey subject matter jurisdiction onto a court by failing to object to the court's lack of jurisdiction. If the district court lacks subject matter jurisdiction, an appellate court cannot acquire jurisdiction over the subject matter on appeal.” Sleeth v. Sedan City Hospital, 298 Kan. 853, 868, 317 P.3d 782 (2014) (citing Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 [2009] ).
In Kansas, trial courts “have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law.” K.S.A. 20–301. Trial courts have “exclusive jurisdiction to try all cases of felony and other criminal cases arising under the statutes of the state of Kansas.” K.S.A. 22–2601.
“Subject matter jurisdiction lies in the district court and follows the defendant through the process of the issuing of the complaint, arrest pursuant to a warrant, initial appearance, the setting or denial of bond at the bond hearing, and the preliminary hearing, arraignment, and trial.” State v. Hall, 246 Kan. 728, 757, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).
The trial court retains jurisdiction over a case until its order becomes final. See Sanders v. City of Kansas City, 18 Kan.App.2d 688, 692, 858 P.2d 833 (“In Kansas, the district court retains jurisdiction until an appeal is docketed with the appellate court.”), rev. denied 253 Kan. 860 (1993), cert. denied 511 U.S. 1052, 114 S.Ct. 1611, 128 L.Ed.2d 339 (1994). A judgment becomes final in a criminal case once the defendant is convicted and sentenced. State v. Howard, 44 Kan.App.2d 508, 511, 238 P.3d 752 (2010).
Our appellate courts have held that the Kansas Sentencing Guidelines Act does not give a trial court continuing jurisdiction after a sentencing proceeding is concluded. State v. Trostle, 41 Kan.App.2d 98, 102, 201 P.3d 724 (2009) (citing State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 [1996] ). When a lawful sentence has been imposed under the sentencing guidelines, the sentencing court loses subject matter jurisdiction to modify that sentence except to correct arithmetic or clerical errors under K.S.A.2013 Supp. 21–6820(i). See State v. Guder, 293 Kan. 763, 766, 267 P.3d 751 (2012).
K.S.A.2013 Supp. 22–4908
The parties dispute whether K.S.A.2013 Supp. 22–4908 applies in this case. K.S.A.2013 Supp. 22–4908 states:
“No person required to register as an offender pursuant to the Kansas offender registration act shall be granted an order relieving the offender of further registration under this act. This section shall include any person with any out of state conviction or adjudication for an offense that would require registration under the laws of this state.”
Initially, KORA allowed a registrant to petition for relief from registration obligations. See K.S.A.1993 Supp. 22–4908. Then, in 2001, the legislature amended this statute and explicitly made it clear that no registrant can be relieved of his or her registration obligations. See K.S.A.2001 Supp. 22–4908. In 2011, the legislature again amended this statute to include registrants who have an out-of-state conviction that requires registration in Kansas. See K.S.A.2011 Supp. 22–4908 (same as 2013 Supp.).
KORA is listed under the Kansas Code of Criminal Procedure; thus, it is presumed that the statutes listed in KORA are applicable to criminal jurisdiction. Under K.S.A.2013 Supp. 22–4908, it is clear that a criminal court does not have the authority to relieve a registrant of his or her obligation to register. Nevertheless, there is nothing in the statute to prevent a registrant from challenging his or her registration obligations in a separate civil action. Moreover, K.S.A.2013 Supp. 22–4908 does not apply to Perciado's constitutional challenge to his registration requirement. Perciado is not seeking to simply be relieved of his registration duties early. Perciado seeks a declaration that the 2011 amendments to KORA are unconstitutional and, thus, a registrant's offender registration time period could not be extended after it was originally imposed.
Although not controlling authority, an Idaho court has addressed whether a criminal trial court has jurisdiction to hear an appeal under the Idaho sex offender registration act in a previously dismissed or fully adjudicated criminal case. In State v. Johnson, 152 Idaho 41, 266 P.3d 1146 (2011), an adult sex offender filed a petition in his previously dismissed criminal case seeking an exemption from his duty to register as a sex offender. The trial court denied his petition.
On appeal, the Idaho Supreme Court held that it had no jurisdiction to decide the appeal because sex offenders seeking exemption from filing under the Idaho act must file their petitions as new civil actions if their criminal cases have been dismissed or fully adjudicated and the time for appeal had run. 152 Idaho at 48. The Johnson court found that the plain language of the statute made it “clear that the Legislature did not extend the district court's jurisdiction to entertain petitions as part of a criminal action.” 152 Idaho at 48. The court focused on the language in the statute that required an offender convicted out of state to file his or her petition in the county in which he or she resides. The Johnson court reasoned that a person convicted out of state could not petition for relief in the criminal proceeding that resulted in the conviction. 152 Idaho at 48. The court further found that the registration requirement was regulatory in nature rather than criminal and, thus, it follows that it should be a civil proceeding. 152 Idaho at 48.
The reasoning used in Johnson is persuasive. For example, K.S.A.2013 Supp. 22–4908 states that “[n]o person required to register as an offender pursuant to the Kansas offender registration act shall be granted an order relieving the offender of further registration under this act.”
Also, K.S.A.2013 Supp. 22–4908 states that any person who has an out-of-state conviction or adjudication for an offense that would require registration under Kansas law is included under this statute.
Here, Perciado had the venue transferred to the 18th Judicial District of Kansas for sentencing. If Perciado is correct and the 18th Judicial District of Kansas would continue to have jurisdiction over this matter because it involves a part of his sentence, what judicial district of Kansas would have jurisdiction over a person who has an out-of-state conviction that requires registration in Kansas?
It is obvious that a person convicted out of state of a crime that requires registration in Kansas would be unable to petition in a Kansas criminal proceeding for relief concerning his or her out-of-state conviction. Thus, a person required to register in Kansas as a result of an out-of-state conviction would be treated differently from a person who is convicted in Kansas. Moreover, KORA explicitly states that no registrant may petition the court for relief from registration.
Thus, from the plain language of K.S.A.2013 Supp. 22–4908, it is clear that the Kansas Legislature did not extend to the 18th Judicial District of Kansas jurisdiction to entertain petitions challenging the registration requirements of KORA as part of a criminal action.
Accordingly, we dismiss Perciado's appeal for lack of jurisdiction.