State v. Atkins

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NOT DESIGNATED FOR PUBLICATION

No. 119,878

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES NICHOLAS ATKINS,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed August 30,
2019. Affirmed.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., GREEN and MALONE, JJ.

PER CURIAM: James Nicholas Atkins appeals the district court's order requiring
him to register as a violent offender under the Kansas Offender Registration Act
(KORA), K.S.A. 22-4901 et seq., after his conviction of attempted aggravated assault of
a law enforcement officer. Atkins first argues that the district court wrongly ordered
offender registration based on his attempted use—not actual use—of a deadly weapon.
He next argues that his current crime of conviction of attempted aggravated assault of a
law enforcement officer is not statutorily designated as a person felony, so the district
court had no authority to order offender registration under K.S.A. 2018 Supp. 22-
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4902(e)(2). Finally, Atkins argues that K.S.A. 2018 Supp. 22-4902(e)(2) is
unconstitutional because it imposes punishment based on judicial fact-finding. We reject
Atkins' claims and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In the early hours of January 1, 2018, Officer Steven Koenig of the Lawrence
Police Department responded to a reported disturbance with weapons at an apartment in
Lawrence. After Koenig arrived at the apartment, Atkins tried to leave the residence with
his hands in his pockets. Officers ordered Atkins to stop and told him they were going to
pat him down for weapons. Rather than stopping, Atkins pulled away from the officers
and ran towards the back door.

Koenig grabbed Atkins' arm to stop him from escaping. Atkins then reached into
his waistband and grabbed a firearm. Koenig believed Atkins was about to pull the
firearm out of his waistband so he tackled Atkins, gripped his hand, and tried to "peel his
hand off" the firearm. Atkins kept trying to pull the firearm out of his waistband
throughout his fight with Koenig. Officers eventually removed Atkins' hand from the
firearm and placed him under arrest.

On January 3, 2018, the State filed several charges against Atkins, including one
count of aggravated assault of a law enforcement officer and one count of interference
with law enforcement. Following plea negotiations, Atkins agreed to plead no contest to
attempted aggravated assault of a law enforcement officer and interference with law
enforcement. The amended information charged Atkins with attempted aggravated
assault of a law enforcement officer, a "Level 8/Person/Felony."

At the plea hearing on March 29, 2018, Atkins' attorney announced that Atkins
wanted to plead no contest to "attempted aggravated assault of a law enforcement officer.
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That will be a severity Level 8 person felony." The district court later asked: "Sir, you
are telling me that today you want to enter a plea to a Level 8 person felony. Are you
aware that the maximum sentence, depending on your criminal history, for a Level 8
person felony, is 23 months in the Kansas Department of Corrections?" Atkins
responded: "Yes, Your Honor."

When providing the factual basis for the plea, the State proffered: "Judge, we did
have a preliminary hearing on this case, and ask the Court to remember those facts. The
overt act for the attempted aggravated [assault] is when the defendant, as he was running
from police, tried to remove a deadly weapon from his pants." The State clarified that the
deadly weapon was a handgun. After receiving the factual basis, the district court again
asked Atkins: "Alright. Knowing all those things, how do you plead to the amended
charge of attempted aggravated assault on a law enforcement officer, a severity Level 8
person felony?" Atkins responded: "No contest."

The case was originally scheduled for sentencing on May 7, 2018. At that hearing,
the district court asked defense counsel if he had explained to Atkins "about the
registration requirements that result from the person felony with a deadly weapon?"
Counsel responded that he had explained that matter to Atkins "very briefly." So at that
point the district court engaged in a lengthy discussion with Atkins about the registration
requirements under KORA. The district court explained that Atkins would need to
register as a violent offender under KORA for 15 years because he used a deadly weapon
during the commission of a person felony. Atkins stated that he understood and he signed
a written notification of the procedure and requirements of the offender registration act.

Noting that it had not explained the registration requirements to Atkins at the plea
hearing, the district court told Atkins: "If that changes your mind about how you want to
go forward here, you need to communicate that to [defense counsel] and he can proceed
accordingly." Atkins' counsel told the court: "I am very happy to go over the registration
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in more detail with my client." As it happened, the sentencing hearing was continued for
the parties to obtain clarification of some issues described in Atkins' drug and alcohol
evaluation. Atkins did not file any type of motion to withdraw his plea.

The district court resumed the sentencing hearing on July 20, 2018. The State
called two police officers to testify about an incident the prior weekend in which Atkins
was arrested for driving under the influence. After considering the evidence and
arguments, the district court sentenced Atkins to a controlling term of 18 months'
imprisonment. The district court also ordered Atkins to register as a violent offender
because he committed a person felony with a deadly weapon. The journal entry of
judgment designates Atkins' crime of attempted aggravated assault of a law enforcement
officer as a severity level 8 person felony. Atkins filed a notice of appeal.

ANALYSIS

On appeal, Atkins only challenges the district court's order requiring him to
register as a violent offender. He argues that the district court wrongly ordered offender
registration based on his attempted use—not actual use—of a deadly weapon. He also
argues that his current crime of conviction of attempted aggravated assault of a law
enforcement officer is not statutorily designated as a person felony, so the district court
had no authority to order offender registration under K.S.A. 2018 Supp. 22-4902(e)(2).
Finally, Atkins argues that K.S.A. 2018 Supp. 22-4902(e)(2) is unconstitutional because
it imposes punishment based on judicial fact-finding.

Atkins acknowledges that he makes all three claims for the first time on appeal.
Generally, issues not raised before the district court may not be raised for the first time on
appeal. State v. Gross, 308 Kan. 1, 6, 417 P.3d 1049 (2018). Kansas courts recognize
three exceptions to this rule and consider issues for the first time on appeal when:

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"(1) The newly asserted theory involves only a question of law arising on proved or
admitted facts and is determinative of the case; (2) consideration of the theory is
necessary to serve the ends of justice or to prevent the denial of fundamental rights; and
(3) the district court is right for the wrong reason. [Citations omitted.]" State v. Phillips,
299 Kan. 479, 493, 325 P.3d 1095 (2014).

Atkins asserts that the first two exceptions apply to allow this court to consider his
issues for the first time on appeal. The State agrees that the first exception applies. Thus,
we will address the merits of Atkins' claims.

Did Atkins use a deadly weapon during the commission of attempted aggravated assault
of a law enforcement officer?

Atkins first contends the district court erred by ordering him to register as a violent
offender because he did not use a deadly weapon to commit the crime of attempted
aggravated assault of a law enforcement officer. Atkins argues the record shows he only
attempted to use a deadly weapon but failed to actually use one to commit the offense.

This issue involves interpreting statutory provisions in KORA, which presents a
question of law subject to unlimited review. State v. Gilkes, 307 Kan. 725, 728, 415 P.3d
427 (2018). The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be determined. State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). An appellate court must first attempt to
ascertain legislative intent through the statutory language enacted, giving common words
their ordinary meanings. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135 (2016).

An individual defined by KORA as a violent offender must register under the Act.
State v. Marinelli, 307 Kan. 768, 774, 415 P.3d 405 (2018). A violent offender includes
any person convicted of a person felony after July 1, 2006, when "the court makes a
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finding on the record that a deadly weapon was used in the commission of such person
felony." K.S.A. 2018 Supp. 22-4902(e)(2).

This court has defined "used" within the meaning of K.S.A. 2018 Supp. 22-
4902(e)(2) as "the deliberate utilization (active employment) either directly, indirectly, or
in some manner using a weapon that results in a change of circumstances of the crime
being committed, such as facilitating commission of the offense." State v. Dinneen, 48
Kan. App. 2d 692, Syl. ¶ 4, 297 P.3d 1185 (2013). This concept of use "'certainly
includes brandishing, displaying, bartering, striking with, and, most obviously, firing or
attempting to fire a firearm.'" 48 Kan. App. 2d at 701 (quoting Bailey v. United States,
516 U.S. 137, 148, 116 S. Ct. 501, 133 L. Ed. 2d 472 [1995]). As a result, even an
offender's reference to a firearm in the offender's possession could satisfy the statutory
meaning of using a deadly weapon. 48 Kan. App. 2d at 701.

Aggravated assault of a law enforcement officer includes knowingly placing a law
enforcement officer in reasonable apprehension of immediate bodily harm with a deadly
weapon. K.S.A. 2018 Supp. 21-5412(d)(1). An attempt crime is defined as "any overt act
toward the perpetration of a crime done by a person who intends to commit such crime
but fails in the perpetration thereof or is prevented or intercepted in executing such
crime." K.S.A. 2018 Supp. 21-5301(a).

Atkins used a deadly weapon during his commission of attempted aggravated
assault of a law enforcement officer by reaching for, grabbing, and trying to remove a
firearm from his waistband. When Atkins tried to pull out the firearm, he deliberately
used the weapon in a manner that changed the circumstances of the crime. Specifically,
Atkins committed the overt act required for his attempt conviction by grabbing the
firearm. Although Atkins failed to remove the firearm from his waistband, the concept of
use is broad and encompasses displaying or even referencing a deadly weapon. By
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grabbing the firearm and attempting to pull it out when officers tried to apprehend him,
Atkins used a deadly weapon towards perpetrating the crime.

Simply put, Atkins used a firearm in the commission of his crime and it does not
matter that the crime was only an "attempted" aggravated assault of a law enforcement
officer. The district court did not err by finding that Atkins used a deadly weapon during
the commission of attempted aggravated assault of a law enforcement officer.

Is attempted aggravated assault of a law enforcement officer a "person felony" within the
meaning of K.S.A. 2018 Supp. 22-4902(e)(2)?

Atkins next contends the district court erred by finding that his attempted
aggravated assault of a law enforcement officer conviction was a person felony which
subjected him to KORA registration. Atkins claims Kansas law provides no mechanism
to designate current attempt convictions as person crimes and so courts may not rely on
attempt convictions to order registration under K.S.A. 2018 Supp. 22-4902(e)(2). This
issue also involves statutory interpretation, which presents a question of law subject to
unlimited review. Gilkes, 307 Kan. at 728.

Not only did Atkins fail to raise this argument in district court, but everything in
the record shows that Atkins acknowledged in district court that he was charged with and
convicted of a person felony. The amended information charged Atkins with attempted
aggravated assault of a law enforcement officer, a "Level 8/Person/Felony." At the plea
hearing, the district court asked Atkins if he wanted "to enter a plea to a Level 8 person
felony." Atkins responded: "Yes, Your Honor." At the hearing on May 7, 2018, the
district court explained to Atkins that he would need to register as a violent offender
under KORA for 15 years because he used a deadly weapon during the commission of a
person felony. Atkins stated that he understood and he signed a written notification of the
procedure and requirements of the offender registration act. Finally the journal entry of
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judgment designates Atkins' crime of attempted aggravated assault of a law enforcement
officer as a severity level 8 person felony.

But on appeal, Atkins argues that his current crime of conviction of attempted
aggravated assault of a law enforcement officer is not statutorily designated as a person
felony, so the district court had no authority to order offender registration under K.S.A.
2018 Supp. 22-4902(e)(2). That statute requires registration if a person "is convicted of
any person felony and the court makes a finding on the record that a deadly weapon was
used in the commission of such person felony." (Emphasis added.) Aggravated assault of
a law enforcement officer is a person felony. K.S.A. 2018 Supp. 21-5412(e)(4). But as
Atkins points out, the Kansas attempt statute provides no method for classifying attempt
convictions as person or nonperson crimes. See K.S.A. 2018 Supp. 21-5301.

In response, the State points out that K.S.A. 2018 Supp. 21-6811(g) expressly
provides that a "prior felony conviction of an attempt . . . to commit a crime shall be
treated as a person or nonperson crime in accordance with the designation assigned to the
underlying crime." The State also points out that under K.S.A. 2018 Supp. 21-5301(c)(1),
an attempt to commit a nondrug felony is ranked two severity levels below its completed
counterpart. The State argues that when reading these two sections of the criminal code
together, it is clear that the Legislature intended that an attempt be treated simply as a less
severe version of the underlying crime without changing the nature of the crime.

Atkins argues that K.S.A. 2018 Supp. 21-6811(g) applies only to prior convictions
of attempted crimes and no statutory provision permits courts to classify current attempt
convictions as person crimes. Put another way, Atkins argues that his conviction of
attempted aggravated assault of a law enforcement officer is only classified as a person
crime for criminal history purposes but not to designate the current crime of conviction.

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The State responds that for this court to "hold that a felony conviction for attempt
only gains a person or nonperson designation at the moment the defendant is sentenced
is, at best, nonsensical." The State further asserts that Atkins' interpretation of the statutes
"strips every inchoate crime of its person or nonperson designation until sentencing—a
result that is clearly contrary to the legislature's intent in crafting our criminal code."

When construing statutes to determine legislative intent, appellate courts must
consider various provisions of an act in pari materia with a view of reconciling and
bringing the provisions into workable harmony if possible. State v. Keel, 302 Kan. 560,
Syl. ¶ 7, 357 P.3d 251 (2015). The courts must construe statutes to avoid unreasonable or
absurd results and presume the Legislature does not intend to enact meaningless
legislation. State v. Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014).

We agree with the State that K.S.A. 2018 Supp. 21-6811(g) sufficiently reflects a
legislative intent that any attempt to commit a crime shall be treated as a person or
nonperson crime in accordance with the designation assigned to the underlying crime.
Moreover, K.S.A. 2018 Supp. 21-5301(c)(1) provides that an attempt to commit a
nondrug felony is ranked two severity levels below its completed counterpart. But there is
no language in the statute to suggest that an attempt to commit a person crime such as
aggravated assault of a law enforcement officer—which requires an overt act toward the
perpetration of a crime done with the intent to commit such crime—changes the nature of
the offense from person to nonperson. See K.S.A. 2018 Supp. 21-5301(a).

Here, the amended information charged Atkins with attempted aggravated assault
of a law enforcement officer, a severity level 8 person felony. The district court asked
Atkins if he wanted to enter a plea to a severity level 8 person felony, and Atkins
responded: "Yes, Your Honor." If Atkins' argument on appeal is correct, his crime of
attempted aggravated assault of a law enforcement officer is not designated as either a
person or nonperson crime in the current case, but thereafter the crime is designated as a
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person offense for criminal history purposes. We agree with the State that interpreting the
applicable statutes within our criminal code in this way would be unreasonable and make
little practical sense. Thus, we reject Atkins' claim that his current crime of conviction of
attempted aggravated assault of a law enforcement officer is not designated as a person
felony within the meaning of K.S.A. 2018 Supp. 22-4902(e)(2).

Is K.S.A. 2018 Supp. 22-4902(e)(2) unconstitutional?

Atkins next contends that K.S.A. 2018 Supp. 22-4902(e)(2) is unconstitutional
under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
because it requires a defendant to register as a violent offender when a judge—rather than
a jury—determines that the defendant used a deadly weapon in the commission of a
crime. Atkins argues that any fact necessary to increase the punishment for an offense
other than a prior conviction must be established by a guilty plea or proved beyond a
reasonable doubt to a jury. 530 U.S. at 490. Determining a statute's constitutionality is a
question of law subject to unlimited review. State v. Petersen-Beard, 304 Kan. 192, 194,
377 P.3d 1127, cert. denied 137 S. Ct. 226 (2016).

But under Apprendi, only facts that increase the penalty, or punishment, for a
crime need to be submitted to a jury. 530 U.S. at 490. The Kansas Supreme Court has
repeatedly rejected the argument that offender registration under KORA is punishment.
See, e.g., State v. Watkins, 306 Kan. 1093, 1095, 401 P.3d 607 (2017); State v. Huey, 306
Kan. 1005, 1009-10, 339 P.3d 211 (2017), cert. denied 138 S. Ct. 2673 (2018); Petersen-
Beard, 304 Kan. at 209. Recognizing our Supreme Court's decisions against him, Atkins
clarifies that he raises this issue only to preserve it for Kansas Supreme Court review.

In Huey, the Kansas Supreme Court found that because the Kansas Legislature
intended KORA to be a civil regulatory scheme—not punishment—a defendant must
present "the clearest proof" that registration is punitive before the court would consider
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registration a criminal penalty. 306 Kan. at 1010. The court must consider several factors
to determine whether KORA's effects render it punitive as applied to violent offenders.
These questions are fact intensive and require a robust record. But Huey raised his
Apprendi challenge for the first time on appeal and thus failed to present facts in district
court which showed that the registration's effects on him were punitive. Without a record,
the court held it could not conclude the effects of KORA were so punitive to override the
Legislature's intent that KORA be a civil remedy. 306 Kan. at 1010.

This court is duty bound to follow Kansas Supreme Court precedent, unless there
is some indication the court is departing from its previous position. State v. Meyer, 51
Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Like Huey, Atkins did not raise his
Apprendi claim before the district court and has provided no fact-based record for this
court to evaluate KORA's alleged punitive effects on him or any other violent offender.
Thus, Atkins has not shown that his registration requirements as a violent offender are
punishment. Because the registration order did not increase Atkins' punishment, it was
unnecessary that a jury find beyond a reasonable doubt that Atkins used a deadly weapon
in the commission of the crime. Atkins' duty to register as a violent offender under
KORA did not violate Apprendi.

Affirmed.