State v. Evans

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No. 103,059

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DELARICK EVANS,
Appellant.


SYLLABUS BY THE COURT

1.
Interpretation of a statute raises a question of law over which this court has
unlimited review.

2.
An appellate court must attempt to ascertain the legislature's intent by giving
ordinary words their ordinary meaning.

3.
Under K.S.A. 22-4912, the plain and unambiguous language of the statute allows
an offender who was required to register under the pre-July 1999 version of the Kansas
Offender Registration Act but was not required to register under the July 1, 1999,
version, to apply for an order relieving that offender from the requirement of registering
as a sex offender.

4.
When both the pre-July 1999 version and the July 1, 1999, version of the Kansas
Offender Registration Act require an offender to register as a sex offender, the offender
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cannot apply to the sentencing court for an order relieving him or her of the duty to
register.

5.
The Kansas Offender Registration Act, K.S.A. 22-4901 et seq., registration
requirement does not impose punishment; thus, amendments to the Act are retroactive.

6.
Any person convicted of an offense described in K.S.A. 22-4906(d) is now
required to register for that person's lifetime regardless of whether the crime occurred
before the legislature amended the Kansas Offender Registration Act.

Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge. Opinion filed November
12, 2010. Affirmed.

Courtney T. Henderson, of Billam & Henderson LLC, of Olathe, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Steve Six,
attorney general, for appellee.

Before PIERRON, P.J., GREEN and MARQUARDT, JJ.

MARQUARDT, J.: Delarick Evans appeals the district court's denial of his 2008 pro
se motion for relief from his requirement to register as a sex offender. We affirm.

On May 9, 1997, Evans was charged with lewd fondling or touching a child under
14 years of age with intent to arouse or satisfy his sexual desires. On November 23, 1998,
Evans pled guilty to two counts of aggravated indecent liberties with a child, which were
severity level 3 person felonies. See K.S.A. 21-3504(a)(3)(A) (Furse), The district court
sentenced Evans on January 7, 1999, to 49 months in prison with 36 months' postrelease
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supervision. At sentencing, Evans was granted 261 days' jail time credit; however, he was
required to register as a sex offender for a period of 10 years after parole, discharge, or
release. See K.S.A. 22-4906(a)(1) (Furse).

On December 16, 2008, Evans filed a pro se motion for relief from his
requirement to register as a sex offender, claiming he fulfilled his obligation under
K.S.A. 22-4912(a).

On February 20, 2009, the district court summarily denied Evans' motion finding
that under the version of the Kansas Offender Registration Act (KORA), in effect at the
time of his crimes, K.S.A. 22-4901 et seq. (Furse), Evans was required to register as a sex
offender for a period of 10 years after parole, discharge, or release. However, under the
2007 version of the KORA, Evans was required to register throughout his lifetime. See
K.S.A. 22-4906(d)(3) and K.S.A. 1999 Supp. 22-4902(b) and (c)(3). After quoting
K.S.A. 22-4912(a), the district court denied Evans' motion, stating that the statute
"provides relief from registration only if the offender would not have been required to
register after the 1999 amendment" to the KORA. Evans timely appeals.

On appeal, Evans contends the district court failed to consider K.S.A. 22-4912(a)
when it denied his motion for relief from registering as a sex offender without a hearing.
Resolution of this issue requires interpretation of K.S.A. 22-4912(a). Interpretation of a
statute raises a question of law over which this court has unlimited review. State v.
Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

An appellate court must attempt to ascertain the legislature's intent by giving
ordinary words their ordinary meaning. State v. Stallings, 284 Kan. 741, 742, 163 P.3d
1232, Syl. ¶ 2 (2007). When a statute is plain and unambiguous, an appellate court does
not speculate about the legislature's intent and will not read into the statute something not
readily found in it. The court will resort to statutory construction, legislative history, or
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other considerations only if the language of the statute is unclear or ambiguous. State v.
Trautloff, 289 Kan. 793, 796, 217 P.3d 15 (2009).

"'It is also well established that the doctrine of liberal construction does not allow this
court to delete vital provisions or supply vital omissions in a statute. No matter what the
legislature may have really intended to do, if it did not in fact do it, under any reasonable
interpretation of the language used, the defect is one which the legislature alone can
correct.'" State v. Johnson, 289 Kan. 870, 879, 218 P.3d 46 (2009) (quoting Eveleigh v.
Conness, 261 Kan. 970, 978, 933 P.3d 675 [1997]).

Evans claims the district court failed to comply with K.S.A. 22-4912(a) when it
did not hold an evidentiary hearing so that he could present evidence verifying that he no
longer satisfied the definition of "sex offender." Research has revealed no Kansas case
that has interpreted K.S.A. 22-4912.

The relevant portion of K.S.A. 22-4912(a) provides:

"Any offender who was required to be registered pursuant to the [KORA], prior to July 1, 1999,
and who would not have been required to be registered pursuant to the [KORA] on and after July
1, 1999, as a result of enactment of this act, shall be entitled to be relieved of the requirement to
be registered. Such offender may apply to the sentencing court for an order relieving the offender
of the duty of registration. The court shall hold a hearing on the application at which the
applicant shall present evidence verifying that such applicant no longer satisfies the definition of
offender pursuant to K.S.A. 22-4902 and amendments thereto." (Emphasis added.)

Evans claims that under K.S.A. 22-4912(a), he was entitled to a hearing on his
motion. Evans, however, ignores the first two sentences of the statute. The plain and
unambiguous language of the statute allows an offender who was required to register
under the pre-July 1999 version of the KORA, but was not required to register under the
July 1, 1999, version of the KORA, to apply for an order relieving that offender from the
requirement of registering as a sex offender. See K.S.A. 22-4912(a).
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Here, both the pre-July 1999 version and the July 1, 1999, version of K.S.A. 22-
4912(a) required Evans to register as a sex offender. Because both versions of the KORA
required Evans to register as a sex offender, Evans is not "[s]uch offender" that can apply
to the sentencing court for an order relieving him of his duty to register under K.S.A. 22-
4912(a). The district court did not err in refusing to grant Evans a hearing on his motion
for relief from registering as a sex offender.

At oral argument, Evans' counsel claimed for the first time that he believed Evans
meant to argue his motion under K.S.A. 22-4906. This is not only a new issue on appeal,
it was not briefed. Ordinarily this court will not entertain such an issue. State v. Martin,
285 Kan. 994, 998, 179 P.3d 457, cert. denied ____U.S. ___ , 129 S. Ct. 192 (2008).

Under the facts available in the record on appeal, Evans could have been released
from prison at the earliest in 2002. The 10-year registration requirement would not expire
until 2012. However, we note that Evans is serving a prison sentence currently for
another conviction. It is unclear from the scant record on appeal when, or if, he would be
released. At any rate, the law has changed since his conviction, and now the registration
requirement for Evans is for his lifetime. See K.S.A. 22-4906(a),(d)(3).

In State v. Myers, 260 Kan. 669, 696, 923 P.2d 1024 (1996), cert. denied 521 U.S.
1118 (1997), our Supreme Court held the KORA "registration requirement does not
impose punishment; thus, our ex post facto inquiry as to registration ends." This language
suggests that the KORA's 2007 amendments are retroactive. Because the registration
requirement is not punishment and does not violate the Ex Post Facto Clause of the
Constitution, any person who has been convicted of any of the offenses listed in K.S.A.
22-4906(d) is now required to register for that person's lifetime regardless of whether the
crime occurred before the legislature amended the KORA. It follows then that any
amendments not imposing punishment are also retroactive.
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Under the current law, Evans will never be relieved from the requirement to
register as a sex offender.

Affirmed.