Opinion
110,277.
05-08-2015
STATE of Kansas, Appellee, v. Marcus D. REED, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., GREEN and LEBEN, JJ.
Opinion
PER CURIAM.
In August 2009, Marcus D. Reed pled guilty to two counts of failing to register as a sex offender in exchange for the dismissal of five similar counts. The court granted Reed both a dispositional and a durational departure and sentenced him to probation. The court, however, later revoked Reed's probation and ordered him to serve a 31–month prison sentence. In October 2012, Reed moved to withdraw his guilty pleas, contending that his counsel was ineffective and that his term for registering as a sex offender had expired before the events leading to the 2008 charges. On appeal, Reed contends that the trial court erred in denying his motion to withdraw his guilty pleas. We disagree. Accordingly, we affirm.
In December 1995, Reed was convicted of aggravated indecent liberties with a child in Cowley County, Case No. 95CR220–A. Although there is some allegation that Reed was given a prison sentence for this conviction, it seems from the parties' agreement as to his prison dates that he was initially placed on probation. At some point thereafter, Reed's probation was revoked and he spent some time in prison before the current charges.
In December 2008, Reed was charged in Sedgwick County with seven counts of failing to register under K.S.A. 22–4901 et seq. The State alleged that Reed was required to register in Sedgwick County under the Kansas Offender Registration Act (KORA) because of his 1995 conviction. The State further alleged that Reed failed to register during the months of May through November 2008.
Before the trial, Reed's attorney filed a variety of motions. One of those motions sought to suppress all evidence against Reed. In this motion, Reed asserted that he had not been told when sentenced or through the Department of Corrections (DOC) that he had a duty to register. Reed also argued that when his original conviction occurred, Kansas law did not require individuals to register as offenders for a conviction such as Reed's 1995 conviction.
On August 3, 2009, the trial court heard arguments on the before-mentioned motion. It determined that the registration requirement was in effect as of the date of Reed's 1995 conviction and therefore was proper. The trial court also determined that a claim of lack of notice or knowledge of the duty to register was not a defense based upon State v. Anderson, 40 Kan.App.2d 69, 70–71, 188 P.3d 38, rev. denied 287 Kan. 766 (2009). Finally, the trial court cited various exhibits (apparently not included in the record) to find there was “some indication” that defendant had notice of his duty to register.
That same day, the trial court denied Reed's previously mentioned motion. Reed then entered into a plea agreement with the State. Under the agreement, Reed promised to plead guilty to two counts of failure to register in exchange for the State's promises to dismiss the remaining five counts, to recommend the low number in the appropriate sentencing guidelines' gridbox, and to recommend that the two counts run concurrent with each other. Under the plea agreement, Reed was free to argue for probation. Reed acknowledged the constitutional rights he would waive by pleading guilty in both a written acknowledgment and during a plea hearing. Reed agreed that he had ample time to discuss the charges with this trial counsel, James Crawford, and he was happy with Crawford's services. Reed pled guilty to those two counts, and the court accepted those pleas; the State dismissed the remaining charges.
In October 2009, Reed appeared for sentencing. During the hearing, Reed stipulated that his criminal history score was F and requested a departure sentence. In both his written motion and arguments for a departure, Reed argued that he had been registering as an offender in Oklahoma and mistakenly believed that his registration there was sufficient. Reed argued that he intended to comply with the Kansas registration requirement in the future and requested the court grant him probation. The court granted Reed both a downward durational and a dispositional departure by placing him on 36 months' probation with a controlling underlying departure sentence of 31 months' imprisonment. The court also extended Reed's duty to register for 3 years. Although Reed was advised of his right to appeal, he did not take a direct appeal from his sentence.
Twice in the 13 months following his sentencing, the State moved to revoke Reed's probation claiming he committed new criminal violations. At the first revocation hearing, the trial court revoked, reinstated, and extended Reed's probation. Following his second revocation hearing in May 2011, the trial court found that Reed committed the crime of aggravated battery/domestic violence in November 2010, revoked Reed's probation, and ordered him to serve the original 31–month prison sentence. Reed did not appeal from the revocation, but he filed a variety of motions seeking reinstatement of his probation or additional jail credit.
In October 2012, Reed, through counsel, moved to withdraw his guilty pleas in this case. In the alternative, Reed requested that the court remove the extension of his duty to register under K.S.A. 22–4901 et seq. Reed attached to his motion an order from the Cowley County District Court. The order stated that Reed's duty to register as an offender for the Cowley County conviction had expired. Reed asserted that the Sedgwick County District Court lacked jurisdiction to convict him of failing to register because his duty to register had expired before May 2008. Moreover, Reed contended that his trial counsel was ineffective for failing to recognize the jurisdictional issue and that he would not have entered guilty pleas had he known of this defense. Consequently, Reed asserted that he had established manifest injustice that warranted the withdrawal of his pleas.
The State opposed Reed's motion to withdraw his pleas. First, the State argued that Reed's motion was untimely under K.S.A. 22–3210 because it was filed more than 3 years after he had entered his pleas. In addition, the State argued that Reed failed to show excusable neglect to justify his late filing.
The trial court conducted a hearing on June 14, 2013, to address Reed's motion. At the beginning of the hearing, the State cited the tolling provision in K.S.A.2008 Supp. 22–4906 and asserted that Reed was still required to register during the period upon which his 2008 charges were based. The State argued that the expiration of the registration period was tolled if (1) the defendant was incarcerated or (2) was not incarcerated but failed to comply with registration requirements. The State presented testimony from an administrative officer for the Kansas Bureau of Investigation's (KBI) Offender Registration Unit. The officer testified that Reed was required to register for 10 years beginning December 4, 1995. The officer testified that Reed was incarcerated with the DOC during the following periods: April 14, 1998, to June 18, 2001; August 10, 2001, to January 16, 2002; June 20, 2002, to November 1, 2002; and January 15, 2003, to March 6, 2003. Reed's counsel stipulated to the incarceration dates. The officer also testified that Reed had failed to register—and thus was not in compliance with the statute—from December 4, 1995, to April 13, 1998; June 2, 2003, to January 6, 2004; and September 1, 2004, to December 4, 2005. The KBI's unit would send correspondence to the offender reminding the offender if he or she did not file a registration form.
During the hearing, Reed made several arguments. First, he asserted that he should not have had to register when he was charged and that his attorney had failed to discover that defense. Reed's counsel argued that Reed did not have to register in 2008 and that his attorney was ineffective for failing to raise this defense. Reed's counsel, however, failed to articulate the legal basis supporting his claim that Reed had no duty to register. Reed also argued that the rules regarding the tolling of the registration period were very complicated and that ordinary people would not have been able to determine if their registration duty had expired. In addition, Reed argued that in light of the confusing nature of the tolling provision, it was a legitimate issue for his counsel to raise. Reed argued that this defense could have been raised at trial and that the jury would have been just as confused as the attorneys about the application of the tolling provision. As a result of this confusion, Reed maintains that he might not have been convicted.
At the conclusion of the hearing, the trial court declined to make any finding as to whether Reed's motion to withdraw was untimely or whether he had established excusable neglect for any delay. Instead, the trial court concluded that based upon all the evidence presented, Reed had failed to establish manifest injustice necessary to withdraw his pleas. The court determined that the evidence established that Reed was noncompliant with the registration requirements for a little over 4 years. This meant that when Reed was charged with the current offenses, he was still under the duty to register. As a result, the trial court denied Reed's motion. The trial court later filed a journal entry setting forth the times when Reed was incarcerated and the periods he did not comply with the registration requirements. Relying on K.S.A.2008 Supp. 22–4906(b)'s tolling provision, the court determined that Reed's duty to register did not expire in December 2005—10 years from the date of his conviction—and that he was obligated to register as an offender in 2008 as charged in the present case.
Did the Trial Court Err in Determining that Reed had Failed to Show Manifest Injustice Because the Tolling Provisions Added to KORA in 2008 Trumped his Claim of Lack of Jurisdiction?
Reed changes his argument that he presented to the trial court and now argues another on appeal. At the trial court level, Reed argued that his attorney had overlooked the potential defense that his time to register had expired. Nevertheless, Reed essentially concedes that under K.S.A.2008 Supp. 22–4606(b), the expiration of his registration requirement was tolled. On appeal, he contends that the 2005 amendments that added the tolling provision, and other revisions to KORA, violate the Ex Post Facto Clause of the United States Constitution.
The question before this court deals with Reed's motion to withdraw his guilty pleas. The applicable statute states “[t]o correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” K.S.A.2014 Supp. 22–3210(d)(2). Generally, an appellate court will not disturb a trial court's denial of a postsentencing motion to withdraw plea absent an abuse of discretion. State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014).
As stated earlier, Reed has abandoned the claims he raised in the trial court: that his counsel was ineffective for not informing him of a potential defense that he was not obligated to register between May and December 2008 or that the confusing nature of the tolling statute provided him a defense of lack of intent. An issue not briefed by the appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
Instead, Reed admits he is raising a completely different issue on appeal: that the various amendments to KORA before his 2009 convictions made KORA a punishment and thereby violated the Ex Post Facto Clause of the United States Constitution. As Reed concedes, issues not raised before the trial court—even constitutional issues—generally will not be considered for the first time on appeal. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). Reed simply argues that the court should consider his constitutional issue because it involves only a question of law arising on undisputed facts.
Our Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with Rule). In this case, Reed was represented by counsel from the initial motion to withdraw his pleas. Although he has new counsel on appeal, Reed has made no attempt to justify or explain why this constitutional issue was not raised below. Accordingly, we could decline to address this issue.
For the sake of argument, we will address this issue. The question is whether the version of KORA in effect in the fall of 2008 violates the Ex Post Facto Clause of the United States Constitution. In doing so, we focus solely on the effect of the pre–2008 amendments because the Cowley County District Court discharged Reed from further registration requirements in 2011. Whether the Cowley County District Court had authority to discharge Reed from future registration is not at issue before us and was apparently not challenged by the State after the order was issued.
The Kansas Sexual Offender Registration Act (KSORA), K.S.A. 22–4901 et seq. (Furse 1995), first enacted in 1993, set forth specific periods for registration by those convicted of various sex offenses. When Reed was convicted in 1995, the applicable provision stated:
“(a) Any person required to register as provided in this act shall be required to register: (1) Upon the first conviction of a sexually violent crime, if not confined, for a period of 10 years after conviction, or if confined, for a period of 10 years after paroled, discharged or released....”
“(b) 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....” K.S.A. 22–4906 (Furse 1995).
Based upon the parties' agreement that Reed was not immediately incarcerated following his conviction in December 1995, his registration obligation would terminate under the 1995 statute on December 4, 2005.
Nevertheless, before that termination date, the 2005 legislature adopted amendments to the Act after it became KORA. In House Bill 2314, L.2005, ch. 202, sec. 1, the legislature modified K.S.A. 22–4906 so as to include a provision tolling the expiration date for registration under specific circumstances. The amendment provided:
“(b) 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 is most recent. The ten-year period shall not apply to any person while the person is incarcerated in any jail or correctional facility. The ten-year registration requirement does not include any time period when any person who is required to register under this act knowingly or willfully fails to comply with the registration requirement. ” (Emphasis added.) K.S.A.2005 Supp. 22–4906(b).
This amendment went into effect July 1, 2005, before Reed's original registration obligation expired. L.2005, ch. 202, sec. 4.
As a result of Reed's undisputed periods of incarceration (slightly in excess of 4 years) and his failure to register when required for at least another almost 3 years, the trial court determined that under K.S.A.2005 Supp. 22–4906(b), Reed's registration obligation was extended beyond the initial termination date of December 4, 2005. Based upon his period of incarceration alone, his registration obligation extended beyond the period on which the 2008 charges were based.
Because the 2005 amendments extended his registration period, Reed now contends that application of that amendment in his case violated the Ex Post Facto Clause of the United States Constitution. The Ex Post Facto Clause of the United States Constitution forbids “ ‘[n]ot only the retroactive criminalization of an act, but also the retroactive increase in the severity of punishment ...’ “ (Emphasis added.) State v. Todd, 299 Kan. 263, 278, 323 P.3d 829 (2014). A statute that retroactively criminalizes conduct that was not prohibited previously or that retroactively make more burdensome the punishment for past criminal conduct violates ex post facto protections. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997).
A challenge to the constitutionality of a statute is a question of law and this court has unlimited review. State v. Chamberlain, 280 Kan. 241, 246, 120 P.3d 319 (2005). The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken it must clearly appear the statute violates the United States Constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. State v. Martis, 277 Kan. 267, 298, 83 P.3d 1216 (2004).
Reed no longer alleges that the tolling provision extending his obligation to register under KORA is unlawful or confusing. Instead, he contends that the increasing requirements under KORA create a punitive effect that implicates the Ex Post Facto Clause of the United States Constitution. He asserts that the postconviction amendment created an affirmative disability or restraint, serves as retribution rather than deterrence, has no rational connection to a nonpunitive purpose, is excessive for the crime, and resembles traditional punishment. In discussing these points, Reed focuses not on the tolling provision, but other amendments adopted both before and after the 2005 tolling provision. Those changes include the increased frequency of in-person registration (L.2007, ch. 183, sec.3[c] ). He complains about the provision prohibiting orders relieving an offender from the duty to register (L.2001, ch. 208, sec.15), even though he obtained such an order in 2011. He cites to the requirement that registered offenders be given special identification cards or driver's license numbers recognizable by law enforcement officers (L.2006, ch. 214, sec.1, 3[d] ), and the quarterly registration fee now imposed under KORA (L.2006, ch. 214, sec.7[f] ). Finally, Reed also cites the 2011 amendments increasing the severity level for violations of the registration act (L.2011, ch. 95, sec.3[c] ).
Kansas appellate courts have addressed the KSORA which became KORA July 1, 1997, on numerous occasions. First, our Supreme Court in Myers, 260 Kan. 669, evaluated whether the application of KSORA to defendants whose crimes occurred before its adoption in April 1994 constituted ex post facto legislation. After evaluating the Ex Post Facto Clause of the United States Constitution and KSORA, our Supreme Court concluded that the legislature intended KSORA to be nonpunitive and focused on public safety. 260 Kan. at 681. After reviewing numerous authorities, our Supreme Court concluded that KSORA's registration requirement did not violate the Ex Post Facto Clause of the United States Constitution. 260 Kan. at 695–96. Nevertheless, our Supreme Court concluded that the broad public disclosure of registration information amounted to punishment and that portion of KSORA could not constitutionally be applied retroactively. 260 Kan. 699–700.
Our Supreme Court has not addressed the ongoing viability of Myers after Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). In Smith, the United States Supreme Court held that Alaska's actions in posting its sex offender registry on the Internet was not punishment for ex post facto purposes because such publication was necessary for the efficacy of the regulatory scheme. 538 U.S. at 99. Still, our Supreme Court has continued to uphold the constitutionality of KORA's provisions even in light of the numerous changes made to the Act. See State v. Cook, 286 Kan. 766, 775–76, 187 P.3d 1283 (2008) (applying statutory amendments increasing the severity level of failing to register did not violate the Ex Post Facto Clause when the charges were based on defendant's failure to register after the amendments went into effect); State v. Armbrust, 274 Kan. 1089, Syl. ¶¶ 3–4, 59 P.3d 1000 (2002) (same).
This court has continued to uphold the constitutionality of KORA's registration requirement despite various legislative changes. In State v. Simmons, 50 Kan.App.2d 448, 463–64, 329 P.3d 523 (2015), petition for rev. filed July 25, 2014, our court held that charging a person convicted of drug felonies with failure to register when KORA did not apply to drug felonies when the defendant's original drug convictions occurred was not an ex post facto violation. Likewise, in State v. Unrein, 47 Kan.App.2d 366, 370–72, 274 P.3d 691 (2012), rev. denied 297 Kan. 1256 (2013), our court held that the registration requirement of KORA was not a punishment that required the underlying facts be proven to a jury under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Moreover, in State v. Evans, 44 Kan.App.2d 945, 948, 242 P.3d 220 (2010), our court held that the amendment to KORA changing the 10–year registration requirement to a lifetime registration was not a punishment and did not violate the Ex Post Facto Clause of the United States Constitution. Rejection of ex post facto claims with respect to KORA amendments has been consistent. In accord with this directive, our court has upheld the constitutionality of KORA through several amendments. See State v.. Wilson, No. 109,692, 2014 WL 5801006, at *2–4 (Kan.App.2014) (unpublished opinion); State v. Lammert, No. 104,040, 2011 WL 4440206, at *4 (Kan.App.2011) (unpublished opinion), rev. denied 296 Kan. 1132 (2013); State v. Legg, 28 Kan.App.2d 203, 207, 13 P.3d 355 (2000), rev. denied 270 Kan. 901 (2001).
In light of our Supreme Court's rulings in Cook and Ambrust, any claim that Reed may have that his counsel was ineffective for failing to raise an ex post facto claim before encouraging Reed to plead guilty must be rejected. Those decisions clearly would have undermined any such constitutional argument.
Likewise, we reject Reed's new claim that KORA, as it existed in 2008, violated the Ex Post Facto Clause of the United States Constitution. The tolling provision, in-person registration provision, and other amendments in effect in 2008 all serve the regulatory interest of ensuring the location of high-risk offenders was known by the State for purposes of public safety. Accordingly, Reed's arguments fail.
Moreover, in its brief, the State argues that we can affirm the trial court on alternative grounds: namely, that Reed's motion to withdraw his pleas was untimely under K.S.A.2014 Supp. 22–3210(e)(1). While before the trial court, Reed did not dispute that his motion to withdraw his pleas was not filed within the statutory 1–year limit, but he did claim excusable neglect existed.
As a general rule, if the trial court reaches the correct result, its decision will be upheld even if the court relied upon the wrong ground or assigned erroneous reasons for its decision. See State v. May, 293 Kan. 858, 870, 269 P.3d 1260 (2012.) Nevertheless, this rule is limited when the statute requiring a notice of cross-appeal is applicable.
“When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which such appellee complains, the appellee shall, within 21 days after the notice of appeal has been served upon such appellee and filed with the clerk of the trial court, give notice of such appellee's cross-appeal.” (Emphasis added.) K.S.A.2014 Supp. 60–2103(h).
Based upon this statute, the appellate courts have repeatedly held that “before an appellee may present adverse rulings to the appellate court it must file a cross-appeal. If the appellee does not, the issue is not properly before the court and may not be considered.” (Emphasis added.) Cooke v. Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008) ; see In re Estate of Strader, 301 Kan. 50, 55, 339 P.3d 769 (2014).
There is a distinction, however, between an argument previously rejected by the trial court and an alternative, unaddressed rationale for a district court's judgment. See Scott v. Hughes, 294 Kan. 403, 414, 275 P.3d 890 (2012). In this case, the trial court specifically declined to address the statute of limitations defense raised by the State. As a result, the State was not required to file a notice of cross-appeal, and it may raise the 1–year limitation period as alternative grounds to support the district court's decision.
Thus, we may consider whether Reed justified his untimely motion to withdraw his pleas. According to the statute, a postsentence motion to withdraw a plea must be filed within 1 year of the judgment becoming final. The judgment is final when either: “(A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction”; or (B) the United States Supreme Court's denial of any petition for writ of certiorari or issuance of a final order after the granting of such petition. K.S.A.2014 Supp. 22–3210(e)(1) ; see State v. Moses, 296 Kan. 1126, 1128, 297 P.3d 1174 (2013). This 1–year time limitation may be extended only “upon an additional, affirmative showing of excusable neglect by the defendant.” K.S.A.2014 Supp. 22–3210(e)(2). Where a defendant makes no attempt at an affirmative showing of excusable neglect, an appellate court will find the motion untimely and procedurally barred. Moses, 296 Kan. at 1128.
In his motion to withdraw his guilty pleas, Reed cited only the court's lack of jurisdiction to convict him, i.e., his obligation to register had expired, and ineffective assistance of counsel in not recognizing this jurisdictional defense. In light of our Supreme Court's decisions relating to the general regulatory purpose of KSORA/KORA and Reed's acknowledged periods of incarceration and lack of compliance, Reed has failed to establish ineffective assistance of counsel. Absent any other affirmative showing of excusable neglect, Reed failed to comply with K.S.A.2014 Supp. 22–3210(e)(2) by not establishing excusable neglect for his delay in filing his motion. Accordingly, we also affirm the trial court's decision on this alternative ground.
Affirmed.