Opinion
No. 106,808.
2013-05-3
STATE of Kansas, Appellee, v. Shane R. ZINC, Appellant.
Appeal from Reno District Court; Joseph L. McCarville III, Judge. Mark T. Schoenhofer, of Wichita, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Joseph L. McCarville III, Judge.
Mark T. Schoenhofer, of Wichita, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Shane Zink appeals the 14 concurrent hard 25 life sentences he received following his guilty pleas to six counts of aggravated indecent liberties with a child and eight counts of sexual exploitation of a child. The district court imposed those sentences under what is commonly known as Jessica's Law, which mandates harsher punishment for such crimes if the defendant is 18 years of age or older and the victim is under the age of 14. Zink complains he never admitted, and the State did not prove to a jury beyond a reasonable doubt, that he was at least 18 years old when he committed the offenses. Thus, he argues the court had to engage in judicial factfinding to impose the more harsh sentences, in violation of his constitutional rights.
We conclude the fact that Zink was at least 18 years of age was an element of the offenses he plead to and that element was specifically mentioned in each count in the amended complaint. When he entered his guilty plea, he then admitted the truth of every element of the charges mentioned in that complaint, including that he was at least 18 years of age. We affirm.
The essential facts are not in dispute. In an amended complaint filed in May 2010, the State charged Zink with six counts of aggravated indecent liberties in violation of K.S.A. 21–3504(a)(3) and eight counts of sexual exploitation of a child in violation of K .S.A. 21–3516(a)(5). Each count was classified as an off-grid felony under Jessica's Law based on the allegations that Zink was “18 or more years of age” and his victim was 7 years old. See K.S.A. 21–3504(c); K.S.A. 21–3516(c); K.S.A. 21–4643(a)(1)(c) and (f). Zink eventually pled guilty as charged without a plea agreement.
Before accepting Zink's guilty pleas, the district court and Zink engaged in a plea colloquy, during which Zink admitted, among other things, that he understood the nature of each of the charges; each of the charges was true; he knew he faced life sentences on each count; and the court would be required to impose a minimum 25–year sentence under Jessica's Law. After the court accepted the pleas to each count, the State offered the factual basis for the pleas, which included the fact that Zink was 36 years old when he committed the offenses.
Then, at sentencing, Zink argued the district court could not sentence him under Jessica's Law because he was never asked whether he agreed with the State's proffer of the factual basis for the pleas. He further argued that he neither admitted the fact that he was at least 18 years old when he committed the offenses nor did the State prove that fact beyond a reasonable doubt. The sentencing judge had not presided over the plea hearing, so he engaged in an additional colloquy to confirm Zink's understanding of his plea and asked Zink if he wished to withdraw his pleas. Zink answered, “No.”. Following that colloquy, the judge found that Zink had admitted to every element of each offense as charged through his guilty pleas, including the fact that he was 18 years of age or older when he committed the offenses. He then denied Zink's motion for a departure sentence and sentenced him to 14 concurrent had 25 life sentences. Zink appeals.
On appeal, Zink persists in his position that the district court violated his constitutional rights in imposing the enhanced sentence based on the fact he was 18 years of age or older, because he did not admit that fact and the State did not prove it beyond a reasonable doubt. The State disagrees and urges us to agree with the district court's reasoning concerning the legal effect of Zink's guilty pleas.
The parties agree that we have unlimited review because Zink's arguments implicate matters of jurisdiction, statutory interpretation, and constitutional interpretation. See State v. Bello, 289 Kan. 191, 195–96, 211 P.3d 139 (2009).
The law governing this issue is well settled. Under determinate sentencing schemes such as the Kansas Sentencing Guidelines Act, when “a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” United States v. Booker, 543 U.S. 220, 233, 160 L.Ed.2d 621, 125 S.Ct. 738 (2005). However, the Sixth and Fourteenth Amendments to the United States Constitution require that any fact that increases the penalty for a crime beyond the statutory maximum, except the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); see also Blakely v. Washington, 542 U.S. 296, 304, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (noting that the jury must find “all the facts ‘which the law makes essential to the punishment’ ”). “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303.
In Booker, the United States Supreme Court recognized an exception to the Apprendi rule when the defendant admits a fact. Booker, 543 U.S. at 244. In Kansas, the fact that the defendant is 18 years of age or older is an element of offenses classified as off-grid felonies under Jessica's Law, not a sentence-enhancing factor. See State v. Hernandez, 294 Kan. 200, 207, 273 P.3d 774 (2012). Accordingly, when there is no evidence to establish the age element in offenses charged under Jessica's Law, the sentencing court is precluded from imposing the enhanced off-grid sentence and must instead impose the lesser on-grid sentence. See State v. Sellers, 292 Kan. 346, 362, 253 P.3d 20 (2011); State v. Morningstar, 289 Kan. 488, Syl. ¶ 3, 213 P.3d 1045 (2009); State v. Gonzales, 289 Kan. 351, Syl. ¶ 10, 212 P.3d 215 (2009); Bello, 289 Kan. at 199–200.
In a nutshell, Zink contends there was no evidence to support the element of his age because the district court never asked him whether he agreed with the factual basis for the pleas offered by the State at the plea hearing. The State responds that Zink's argument overlooks the legal effect of his guilty pleas. We agree.
Importantly, “[a] plea of guilty is admission of the truth of the charge and every material fact alleged therein.” (Emphasis added.) K.S.A. 22–3209(1); accord State v. Case, 289 Kan. 457, 460–62, 213 P.3d 429 (2009) (discussing and distinguishing pleas of guilty versus Alford and nolo contendere pleas). As we stated, each count of the amended complaint included the material factual element that Zink was “18 or more years of age” when he committed the offense. Consequently, by pleading guilty to each offense as charged, Zink expressly admitted that he was 18 or more years of age when he committed all 14 offenses against the 7–year–old victim. The district court could then use that admitted fact to impose the off-grid sentences without running afoul of the constitutional principles discussed in Apprendi and its progeny.
It seems that Zink perhaps misinterprets the legal significance of the State's proffer of the factual basis for his pleas. That factual basis was necessary for the court to accept Zink's plea. See Case, 289 Kan. at 464–65 (citing K.S.A. 22–3210[a][4] in discussing necessity of district court's satisfaction with sufficiency of factual basis to accept plea); accord State v. Snyder, 10 Kan.App.2d 450, 454–55, 701 P.2d 969 (1985) (discussing appropriate ways in which factual basis for plea can be established, including prosecutor's presentation of evidence to the court). Here, the plea court found the State's proffered factual basis sufficient to support its acceptance of Zink's pleas. That Zink did not explicitly admit to the veracity of that factual basis, however, does not eliminate the significance of his pleas of guilty, i.e., his admission to the truth of each and every element of the charges as set forth in the amended complaint.
Affirmed.