Opinion
110,243.
10-17-2014
STATE of Kansas, Appellee, v. Alfred ROCHELEAU, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, 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. Moloney, 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.
After pleading guilty to aggravated indecent solicitation, Alfred Rocheleau was sentenced to a 32–month prison sentence. Because aggravated indecent solicitation is an offense requiring registration, the trial court informed Rocheleau that he had to register under the Kansas Offender Registration Act (KORA). Rocheleau raises two arguments on appeal: (1) that the 2011 amendments to KORA violate the Ex Post Facto Clause of the United States Constitution because his conviction originally required him to register as an offender for 10 years, but the 2011 KORA amendments now required him to register for the rest of his life; and (2) that the trial court abused its discretion when it declined to impose an optional nonprison sentence for his conviction.
Neither of Rocheleau's arguments have merit. First, this court does not have jurisdiction to reach Rocheleau's offender registration argument. Our court recently held that offender registration is not part of a defendant's sentence. State v. Simmons, 50 Kan.App.2d 448, 451, 329 P.3d 523 (2014). Because we determine that offender registration was not part of Rocheleau's sentence and because Rocheleau's notice of appeal stated that he was appealing from only his sentence, we were vested with appellate jurisdiction over only his sentence. Consequently, we lack jurisdiction to consider Rocheleau's offender registration argument. Second, because Rocheleau received a sentence that was within the presumptive sentence for his crime, we lack jurisdiction to consider the trial court's refusal to impose an optional nonprison sentence for his aggravated indecent solicitation conviction. Accordingly, we dismiss for a lack of jurisdiction.
On March 29, 2013, Rocheleau pled guilty to one count of aggravated indecent solicitation, a severity level 5 person felony, in violation of K.S.A.2013 Supp. 21–5508(b)(1). Based on Rocheleau's criminal history score, his offense fell within the 5–I border box on the relevant sentencing guidelines grid. As a result, the trial court could have imposed an optional nonprison sentence if it chose to make certain findings on the record. Following his guilty plea, Rocheleau moved for a nonprison sentence based on the applicable border box findings. The trial court denied Rocheleau's motion and sentenced him to a 32–month prison sentence. Then, the trial court informed Rocheleau that his conviction required him to register under the Kansas Offender Registration Act (KORA).
On May 22, 2013, Rocheleau field a timely notice of appeal from the trial court's ruling. Rocheleau's notice of appeal states that he wished to appeal from only his sentence.
Did the Trial Court Lack Jurisdiction to Address the Merits of Rocheleau's Offender Registration Argument Because He Appealed From Only His Sentence?
Rocheleau's first appellate argument is that amendments to the KORA, which were enacted in 2011, violate the Ex Post Facto Clause of the United States Constitution. Rocheleau 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 the rest of his life. Rocheleau contends that the effects of the 2011 version of KORA are punitive and therefore a violation of the Ex Post Facto Clause. On the other hand, the State argues that “[t]his court has considered this identical argument before, and determined that it was bound by [Kansas Supreme Court] precedent.”
Before considering the merits of Rocheleau's Ex Post Facto argument, we must address the State's preliminary argument: That this court lacks jurisdiction to address Rocheleau's argument because offender registration is not part of an offender's sentence. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. 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 (2013).
Here, Rocheleau's notice of appeal refers to only the sentence imposed as the applicable subject matter of his appeal. Specifically, Rocheleau's notice of appeal reads as follows: “Notice is hereby given by the Defendant, Alfred Rocheleau, by and through Quentin Pittman, his attorney, of his intention to appeal his sentence to [sic ] the District Court to the Court of Appeals of the State of Kansas.” (Emphasis added.)
According to the State, offender registration is not part of an offender's sentence, but offender registration is merely an incident of sentencing. Because Rocheleau appealed from only his sentence, the State asserts that this court lacks jurisdiction to address Rocheleau's argument that his offender registration requirements violate the Ex Post Facto Clause.
The State's argument is sound. In Kansas, the right to appeal is entirely based on statutes. State v. J.D.H., 48 Kan.App.2d at 458, 294 P.3d 343. K.S.A.2013 Supp. 60–2103(b) states that “[t]he notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.” Said differently, an appellate court obtains jurisdiction over only the rulings identified in the notice of appeal. State v. Garza, 295 Kan. 326, 329, 286 P.3d 554 (2012). See also State v. G. W.A., 258 Kan. 703, 705–06, 906 P.2d 657 (1995) (State's appeal); Cf. State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000).
We acknowledge that our Supreme Court has construed notices of appeal liberally. See State v. Laurel, 299 Kan. 668, 673, 325 P.3d 1154 (2014) (“We liberally construe K.S.A. 60–2103(b) “ ‘to assure justice in every proceeding.” ‘ ”) [Citations omitted]. Even so, “there is still a substantive minimum below which a notice cannot fall and still support jurisdiction.” Laurel, 299 Kan. at 673, 325 P.3d 1154 (citing State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012) (notice of appeal for sentence cannot be construed to support appeal of conviction); State v. G. W.A., 258 Kan. at 707, 906 P.2d 657. (State's appeal from judgment of acquittal insufficient to confer jurisdiction over question reserved); Gates v. Goodyear, 37 Kan.App.2d 623, 626–29, 155 P.3d 1196 (notice of appeal citing two specific trial court rulings insufficient to confer jurisdiction over issues not addressed in those rulings), rev. denied 284 Kan. 945 (2007). Here, an argument can be made that Rocheleau's notice of appeal falls below this substantive minimum.
Moreover, our court recently held that offender registration is not part of a defendant's sentence. State v. Simmons, 50 Kan.App.2d 448. In reaching its decision, the Simmons court stated the following:
“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.” Simmons, 50 Kan.App.2d at 451, 325 P.3d 1192.
Because offender registration was not part of Rocheieau's sentence, his notice of appeal vested us with appellate jurisdiction over only his sentence. Consequently, this court lacks jurisdiction to address Rocheieau's offender registration argument.
Moreover, even if we were to construe Rocheieau's notice of appeal to include an appeal from his offender registration requirement or if we were to determine that offender registration is part of an offender's sentence, Rocheieau's ex post facto argument would still fail. Rocheleau maintains that applying the 2011 KORA amendments to him amounts to unconstitutional punishment violating the Ex Post Facto Clause of the United States Constitution, art. I, § 10. A statute that retroactively criminalizes conduct that had not been prohibited or that retroactively makes more burdensome the punishment for conduct already treated as criminal violates ex post facto protections. State v. Myers, 260 Kan. 669, Syl. ¶ 5, 923 P.2d 1024 (1996).
In support of Rocheieau's ex post facto contention, he argues the following: (1) “KORA imposes an affirmative disability or restraint that is hardly ‘minor and indirect’ “ because it requires offenders to register in person, pay registration fees, and creates employment and housing challenges; (2) KORA's public notification provisions serve the purpose of punishing the offender through public shaming; (3) KORA is not rationally connected to the non-punitive purpose of increasing public safety; and (4) KORA's lifetime registration requirement for his offense, aggravated indecent solicitation, is excessive.
Resolution of Rocheleau's arguments requires us to interpret constitutional and statutory provisions. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). Similarly, appellate courts have unlimited review when arguments implicate concerns related to constitutional interpretation. State v. Gonzales, 289 Kan. 351, 365, 212 P.3d 215(2009).
While Rocheleau's ex post facto arguments are compelling, our Supreme Court's decision in Myers controls this case. In that case, the Myers court examined state and federal offender registration laws as well as the legislative purpose behind the Kansas Sex Offender Registration Act (KSORA)-the predecessor to KORA. Ultimately, the Myers Court held that the duty to register served the nonpunitive purpose of public safety and that the sex offender registration requirements were not a form of punishment triggering Ex Post Facto protections. 260 Kan. at 681, 696, 923 P.2d 1024.
Rocheleau does not dispute the Myers court's holding that the retroactive application of KSORA did not violate the Ex Post Facto Clause of the United States Constitution. Rather, Rocheleau suggests that our Supreme Court might reach a different result today when analyzing the current version of KORA. In particular, Rocheleau states the following:
“However, the statutes at issue in Myers hardly resemble the statutes in the present case. The amendments to KORA since Myers have expanded the scope and effect of the law, including many more offenses being subject to registration, penalties being increased for violating the law, increased circumstances and frequency upon which registration was required, the imposition of a twenty-dollar fee on each occasion of required reporting, increased information required to be included in registration, and a statutory prohibition against any judicial relief from registration.”
The changes between the version of the KSORA under Myers and the version of KORA applied to Rocheleau are significant. But Rocheleau cites no authority indicating that our Supreme Court intends to retreat from its holding in Myers, This court is duty bound to follow our Supreme Court precedent, absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Consequently, absent an indication that our Supreme Court intends to depart from its decision in Myers, it remains controlling authority.
Our court has reached this same conclusion on multiple occasions when addressing Ex Post Facto arguments raised by offenders required to register under KORA. See e.g., Simmons, 50 Kan.App.2d at 464, 325 P.3d 1192 (“Although the changes Simmons points out between KSORA as it was upheld in Myers and the KORA version applied to her are significant, ultimately they are matters of degree rather than differences of kind. Thus, absent some indication the Kansas Supreme Court intends to retreat from its decision in Myers, it remains controlling authority.”); State v. Wingo, No. 108,275, 2013 WL 2936088 at * 3 (Kan.App.) (unpublished opinion) (“Until the Kansas Supreme Court signals an intent to depart from its holding in Myers, we are duty bound to follow its conclusion that the KORA registration requirement challenged by Wingo does not violate the Ex Post Facto Clause.”). Because our Supreme Court has rejected a challenge to KORA's registration requirements as violating the Ex Post Facto Clause, Rocheleau's argument fails.
Did the Trial Court Abuse Its Discretion When It Declined to Impose an Optional Nonprison Sentence for Rocheleau's Aggravated Indecent Solicitation Conviction?
Next, Rocheleau contends that “the district court abused its discretion in not making border box findings.” To the contrary, the State argues that this court lacks jurisdiction to consider Rocheleau's border box sentencing argument because Rocheleau received a presumptive sentence. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Charles, 298 Kan. at 1002, 318 P.3d 997.
As mentioned earlier, Rocheleau's aggravated indecent solicitation offense fell within the 5–I border box on the nondrug sentencing guidelines grid. Thus, the trial court could have imposed an optional nonprison sentence if it chose to make the following findings on the record:
“(1) An appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and
(2) the recommended treatment program is available and the offender can be admitted to such program within a reasonable period of time; or
(3) the nonprison sanction will serve community safety interests by promoting offender reformation.” K.S.A.2013 Supp. 21–6804(q).
The trial court, however, declined to impose the optional nonprison sentence and instead sentenced Rocheleau to a presumptive sentence of 32 months. Because Rocheleau's sentence for aggravated indecent solicitation was within the presumptive sentence for his crime, this court lacks jurisdiction to review his sentence. See State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011).
But even if we had jurisdiction to review Rocheleau's sentence, the record does not support his argument that the trial court's decision to sentence him to prison constituted an abuse of discretion. Under Kansas law, the trial court has discretion in border box cases to impose incarceration or probation. State v. Whitlock, 36 Kan.App.2d 556, 559, 142 P.3d 334 (2006) (“Under the KSGA, the sentence in border box cases is presumed imprisonment; nevertheless, the court may impose an optional nonprison sentence upon making certain findings on the record.”) A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
Here, the trial court considered all of the factors under K.S.A.2013 Supp. 21–6804(q) but declined to impose the optional nonprison sentence. Based on Rocheleau's medical reports, the trial court found that he was a threat to public safety and that he was a threat to other young girls. The trial court's findings were not arbitrary, fanciful, or unreasonable; based on an error of law; or based on an error of fact. Accordingly, the trial court did not abuse its discretion when it sentenced Rocheleau to a prison sentence of 32 months. Accordingly, we dismiss for lack of jurisdiction.