Opinion
No. 106,800.
2012-08-10
STATE of Kansas, Appellee, v. Henry FOGLE, Appellant.
Appeal from Sumner District Court; William R. Mott, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Kay Gowen, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sumner District Court; William R. Mott, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Kay Gowen, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL, J. and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM:
Henry Fogle contends the district court erred when it ordered him to register as a sex offender for the rest of his life. Under Kansas law, one conviction for a sex offense requires a convict to register for 10 years. A second conviction for a sex offense results in a lifetime registration requirement. Because Fogle pled guilty to two separate sexually violent offenses committed on different days and upon different victims, we hold the district court did not err when it ordered a lifetime registration requirement for Fogle. The State charged Fogle in two different cases.
The prosecution of Fogle began with two cases. In one case (10 CR 66), Fogle was charged with a single count of aggravated sexual battery in violation of K.S.A. 21–3518, which was alleged to have occurred on or about March 5, 2010, against M.F. In the other case (10 CR 64), Fogle was charged with at least two sex crimes (rape and aggravated criminal sodomy) that were alleged to have occurred between February 11 and March 5, 2010, against K.N.
The parties made a single plea agreement for both cases. The State agreed to amend one count in 10 CR 64 to misdemeanor sexual battery in violation of K.S.A. 21–3517, to dismiss the remaining count, and to make an agreed sentencing recommendation in return for Fogle's guilty pleas to that amended charge and the aggravated sexual battery charge in 10 CR 66.
The State filed an amended complaint in 10 CR 66 reflecting the misdemeanor sexual battery and the aggravated sexual battery charges discussed in the plea agreement and an order to consolidate, which the court signed. Fogle then entered guilty pleas to each of the counts as reflected in the amended complaint, and the district court dismissed 10 CR 64.
A dispute arose at sentencing about how long Fogle should have to register as a sex offender under the Kansas Offender Registration Act, K.S.A. 22–4901 et seq. Fogle insisted that the consolidation of the charges due to their “ ‘same or similar character’ “ resulted in one “conviction event” against him for sex offender registration purposes. And with one conviction, he would only be required to register as a sex offender for 10 years. In response to questions from the district court, Fogle acknowledged that the two crimes to which he pled occurred at different times, in different places, and against different victims.
The district court concluded that Fogle had two convictions of a sexually violent offense, so he must register as a sex offender for his lifetime under the Offender Registration Act. The court then sentenced Fogle to a controlling 36–month prison sentence. Fogle claims the district court erred in ordering a lifetime registration.
Fogle continues his argument he began in the district court. He maintains this case is a one-conviction event and therefore his registration requirement should be 10 years and not for the rest of his life. The State contends the district court is correct because Fogle has two convictions for sexually violent offenses and the law requires a lifetime registration.
Obviously, resolution of this issue requires statutory interpretation, which involves a legal question subject to unlimited review on appeal. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Here are the pertinent provisions of the Offender Registration Act:
• K.S.A.2010 Supp. 22–4906(a) commanded registration for a period that varied according to the number of convictions:
“Except as provided in subsection (d), 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 as defined in subsection (c) of K.S.A. 22–4902 ... 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, whichever date is most recent ...; or (2) upon a second or subsequent conviction for such person's lifetime.”
• K.S.A.2010 Supp. 22–4902(c)(9) defined sexual battery as a “sexually violent crime.”
• K.S.A.2010 Supp. 22–4902(c)(10) defined aggravated sexual battery as a “sexually violent crime.”
• K.S.A.2010 Supp. 22–4902(a) provided, immediately after its 11 numerical subsections defining an “offender” under the Offender Registration Act, that “[c]onvictions which result from or are connected with the same act, or result from crimes committed at the same time, shall be counted for the purpose of this section as one conviction.”
In essence, Fogle is arguing that because his two cases were consolidated into one, he has but one conviction and, therefore, the 10–year registration period applies. He cites the consolidation statute, K.S.A. 22–3202(1), as support. That statute provides:
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
The district court noted at the plea hearing that consolidation was appropriate under this statute because the charges at issue were of the “same or similar character.” But we question whether the number of complaints filed actually controls this issue.
Next, Fogle turns to the sentencing statutes for support. Here, Fogle relies on K.S.A.2010 Supp. 21–4710(a), which provides for purposes of calculating a defendant's criminal history that “[a] prior conviction is any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case.” According to Fogle, neither of his two convictions can be considered a prior conviction under this statute, so there could be no second or subsequent conviction that requires lifetime registration under K.S.A.2010 Supp. 22–4906(a)(2).
In support of this argument, Fogle cites State v. Gilley, 290 Kan. 31, 223 P.3d 774 (2010). Gilley interpreted K.S.A. 21–3710(b)(4) to determine what forgery convictions could be counted for purposes of the progressive sentencing provisions in that statute. Gilley held: “Because K.S.A. 21–3710(b) does not limit progressive sentencing to prior forgery convictions but rather focuses on the number of forgery convictions incurred by a defendant, any forgery conviction can be used to heighten the defendant's conditions of probation.” 290 Kan. at 39. Highly summarized, Gilley held that a conviction of a violation of the Kansas forgery statute in a past case or in the current case can be used for sentence enhancement. According to Fogle, this same reasoning cannot be applied to conclude he has two convictions for purposes of registration under the Offender Registration Act because, unlike the forgery statute, K.S.A.2010 Supp. 22–4902(a) “specifically limits the number of convictions in determining if the offender has a ‘second or subsequent conviction.’ “
We are not persuaded that the authorities Fogle cites are applicable. Instead, we think that applying the plain language of K.S.A.2010 Supp. 22–4902(a) to the facts of this case is a more appropriate way to resolve this matter. It was undisputed that Fogle's convictions resulted from his separate acts, committed on two separate occasions against different victims. In other words, neither of Fogle's two convictions “result[ed] from or are connected with the same act, or ... from crimes committed at the same time,” which is the language found in K.S.A.2010 Supp. 22–4902(a). Thus, these truly are separate convictions, and since there are two, the Kansas Legislature has directed that the sentencing court must impose a lifetime registration order.
Accordingly, we hold that Fogle's pleas to the separate charges resulted in two convictions of sexually violent offenses, as contemplated under K.S.A.2010 Supp. 22–4906(a)(2). The district court did not err in ordering him to register as a sex offender for his lifetime under the Offender Registration Act.
Therefore, we affirm the district court's order requiring Fogle to register as a sexually violent offender for the rest of his life.