State v. Ford

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NOT DESIGNATED FOR PUBLICATION

No. 119,328

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TYLER LEE FORD,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed July 19, 2019.
Affirmed.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., GREEN and POWELL, JJ.

PER CURIAM: Tyler Lee Ford appeals the district court's order requiring that he
register as a violent offender under the Kansas Offender Registration Act (KORA),
K.S.A. 22-4901 et seq., after his conviction for robbery. Ford makes several
constitutional arguments, all of which are raised for the first time on appeal. First, Ford
contends the district court violated his due process rights when it required him to register
as a violent offender without notice or an opportunity to be heard. Second, Ford claims
KORA unconstitutionally violates offenders' due process rights by failing to establish the
State's burden of proof or a process by which to contest the district court's factual
findings creating a duty to register. And third, Ford alleges the district court unlawfully
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increased his punishment based on improper judicial fact-finding in violation of his
constitutional rights as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000). After carefully considering Ford's arguments, we are
unpersuaded by them and affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND

On October 11, 2017, Ford robbed a convenience store. Ford entered the
convenience store, pointed a handgun at the store clerk, and demanded money. The store
clerk gave Ford about $132, which included a marked $2 bill. After receiving information
concerning Ford's involvement with the robbery, officers obtained a warrant to search
Ford's residence. While searching Ford's residence, officers found a loaded handgun and
the marked $2 bill.

Ford was arrested and subsequently charged with aggravated robbery while armed
with a dangerous weapon. As part of a plea agreement with the State, Ford waived his
preliminary hearing and pled guilty to an amended charge of simple robbery, a severity
level 5 person felony. The amended complaint did not state that Ford used a gun or
another deadly weapon during the commission of the robbery. When giving the factual
basis for the plea, the State explained that Ford pointed a black semiautomatic handgun at
the store clerk and demanded money. The State also noted that officers located a .22-
caliber black Ruger handgun with a loaded magazine in Ford's residence. The district
court determined a factual basis existed for the plea and found Ford guilty of robbery.
The district court did not inform Ford of his duty to register.

Prior to sentencing, a presentence investigation (PSI) report revealed that Ford's
criminal history included four convictions of automotive burglary and a conviction of
aggravated battery. The PSI also indicated that a special sentencing rule applied because
Ford's crime of conviction was a "person felony committed with a firearm." When a
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firearm is used to commit a person felony, the sentence is presumptive imprisonment.
K.S.A. 2018 Supp. 21-6804(h). The PSI noted that offender registration was required
under K.S.A. 2018 Supp. 22-4902. Ford filed a motion for a departure from his presumed
sentence.

At sentencing, the State opposed the departure motion, arguing Ford had
committed armed robbery and pointed a gun at the clerk's head. The district court denied
Ford's departure motion, reasoning: "Not only was this an armed robbery of a Kwik
Shop with a gun used, and the court will make the finding of a weapon, you had just got
out of prison." (Emphasis added.) The district court sentenced Ford to 57 months in
prison with 24 months of postrelease supervision. Again, the district court did not
mention registration.

Subsequent to sentencing, a disagreement arose concerning whether the journal
entry should reflect that Ford must register as a violent offender because the crime was
committed with a deadly weapon. At the hearing to resolve the journal entry, the State
argued registration was required because the case involved an armed robbery and the
district court "made a specific finding that a dangerous weapon had been involved."
Ford's counsel responded: "What I have in my notes, judge, is that the court said the
words [']that a gun was used in the commission of the crime,['] but there was no finding
that it was a dangerous weapon and there was no finding that it was a registration order."

The district court determined that Ford must register as a violent offender, stating:

"The court specifically found a firearm was used in the commission of the
offense. That requires registration. . . .

" . . . [I]f there's any question whether a gun or a firearm is a dangerous weapon I
will say that it is. And under Kansas law registration is required and it's the responsibility
of the Department of Corrections to see that that is done."
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The district court filed a journal entry which required Ford to register as a violent
offender under KORA for 15 years after his release from prison because he committed a
person felony with a deadly weapon.

Ford timely appeals.

I. DID THE DISTRICT COURT VIOLATE FORD'S DUE PROCESS RIGHTS BY REQUIRING
HIM TO REGISTER AS A VIOLENT OFFENDER?

Ford complains his due process rights were violated when the district court
required him to register as a violent offender because he "had no notice nor meaningful
opportunity to be heard on the court's discretionary finding that he register as a violent
offender for 15 years for his conviction of robbery, which does not have a weapon as an
element of the crime."

A. Should we consider this issue raised for the first time on appeal?

Ford acknowledges that he raises this due process claim for the first time on
appeal. Generally, an issue not raised before the district court—even a constitutional
claim—may not be raised for the first time on appeal. State v. Daniel, 307 Kan. 428, 430,
410 P.3d 877 (2018).

"There are three exceptions to this rule: (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."
State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Ford correctly argues that we may address the issue for the first time on appeal
because such consideration is necessary to serve the ends of justice and prevent the denial
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of fundamental rights. See State v. Ibarra, 307 Kan. 431, 432, 411 P.3d 318 (2018); State
v. Carter, 55 Kan. App. 2d 511, 519-20, 419 P.3d 55 (2018), rev. granted 309 Kan. ___
(January 11, 2019).

Under the Fourteenth Amendment to the United States Constitutions, no state may
"deprive any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, § 1. In Carter, the defendant challenged the district court's finding that she
used a deadly weapon when committing a crime and, thus, qualified as a violent offender
under KORA. Although Carter raised this argument for the first time on appeal, a panel
of this court considered her argument "because it presents only an issue of law and
because consideration of it is necessary to serve the ends of justice." 55 Kan. App. 2d at
520. Like in Carter, consideration of Ford's due process claim is necessary to serve the
ends of justice. Therefore, we will consider it.

Whether a defendant's right to due process was violated is a question of law over
which we exercise unlimited review. State v. Hayes, 307 Kan. 537, 538, 411 P.3d 1225
(2018). When reviewing a due process claim, we first determine whether a protected
liberty or property interest is involved. If so, we must then determine the nature and
extent of the process that is due. Village Villa v. Kansas Health Policy Authority, 296
Kan. 315, 331, 291 P.3d 1056 (2013). Due process is flexible in that not all situations
calling for procedural safeguards call for the same kind of procedure. See In re Care &
Treatment of Ellison, 305 Kan. 519, 526, 385 P.3d 15 (2016). A due process violation
exists only if the claimant is able to show that he or she was denied "'a specific
procedural protection to which he or she was entitled.'" In re K.E., 294 Kan. 17, 22, 272
P.3d 28 (2012).

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B. Was Ford given notice and a meaningful opportunity to be heard?

Accepting at face value Ford's claim that KORA's registration requirements
impinge on his protected liberty and property interests, Ford fails to show how the district
court denied him a specific procedural protection to which he is entitled.

The basic elements of procedural due process are notice and "the opportunity to be
heard at a meaningful time and in a meaningful manner." Ellison, 305 Kan. at 526. "To
satisfy due process, notice must be reasonably calculated, under all of the circumstances,
to apprise the interested parties of the pendency of an action and to afford the parties an
opportunity to present any objections. Mullane v. Central Hanover Tr. Co., 339 U.S. 306,
314-15, 70 S. Ct. 652, 94 L. Ed. 865 (1950)." Johnson v. Brooks Plumbing, 281 Kan.
1212, 1215, 135 P.3d 1203 (2006).

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
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). And, generally, an offender must register for
15 years if the offender is convicted of a person felony and "the court makes a finding on
the record that a deadly weapon was used in the commission of such person felony."
K.S.A. 2018 Supp. 22-4906(a)(1)(N).

At Ford's plea hearing, the State provided a factual basis for the plea and explained
that Ford used a gun in the commission of the crime. Ford never objected to the State's
factual basis. Given the factual basis that a gun (which we agree is a deadly weapon) was
used by Ford to commit the robbery, Ford was put on notice at this point that he could be
subject to a registration requirement. See State v. Smith-Parker, 301 Kan. 132, 154, 340
P.3d 485 (2014) ("A gun is unquestionably a deadly weapon."); Black's Law Dictionary
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1909 (11th ed. 2019) (term "deadly weapon" includes "[a]ny firearm or other device . . .
calculated or likely to produce death"). But Ford argues the district court improperly
failed to inform him about his registration obligations at the plea hearing as required by
KORA. See K.S.A. 2018 Supp. 22-4904(a)(1)(A). However, this failure does not affect
Ford's violent offender status or otherwise excuse his registration obligations. See 307
Kan. at 790-91.

According to our Supreme Court, "[n]o provision in KORA creates a consequence
for the [district court's] failure to inform a defendant [of his or her duty to register] at the
appropriate time. . . . [T]he Act itself imposes the duty to register upon [the defendant],
rather than the court's order." 307 Kan. at 790. The purposes of the notice requirement are
ensuring offenders know their registration obligations and preventing lack of knowledge
from being raised as a defense to a later charge of failing to register. 307 Kan. at 790. But
"neither the fact of notice or its timing are dispositive to whether a person is an 'offender'
and, therefore, subject to registration requirements." 307 Kan. at 791. As a result, the
district court's failure to satisfy K.S.A. 2018 Supp. 22-4904(a)(1)(A) does not entitle Ford
to any relief at this stage of the proceedings. See State v. Wren, No. 118,046, 2018 WL
3077193, at *2 (Kan. App. 2018) (unpublished opinion).

According to the record, notice was provided to Ford in multiple ways. First, in
addition to the notice provided by the factual basis at the plea hearing, the PSI prepared
prior to sentencing put Ford specifically on notice that he was subject to a registration
requirement. The PSI specifically stated that a special sentencing rule applied because
Ford had committed a person felony with a firearm and that registration was required.
Second, during sentencing, the district court found that Ford used a gun in the
commission of the robbery, a person felony, and specifically noted that "the court will
make the finding of a weapon." Ford did not object to this finding, nor did Ford object to
the PSI. Although the district court did not use the words "deadly" or "dangerous" from
the bench, it noted a gun was used and made the specific "finding of a weapon." Third,
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the completed sentencing journal entry indicated that Ford had committed the crime of
conviction with a deadly weapon. In the journal entry, the district court checked a box
labeled "Yes" next to the question asking whether the offender committed the current
crime with a deadly weapon. As a result of this finding, an offender registration
supplement was attached to the journal entry, showing Ford's duty to register as a violent
offender for 15 years because he was convicted "of a person felony with court finding on
the record that such felony was committed with a DEADLY WEAPON." Our Supreme
Court has found such findings made in the sentencing journal entry to be sufficient to
require registration. Marinelli, 307 Kan. at 788-89.

Ford was also given the opportunity to be heard. As we have already noted, after
sentencing the State and Ford disputed whether the journal entry should include a
registration requirement. At a special hearing to resolve the journal entry, Ford was given
the opportunity to argue that, although the district court found a gun was used, "there was
no finding that it was a dangerous weapon and there was no finding that it was a
registration order." In response, the district court then clarified that the gun was a
dangerous weapon that was used in the commission of the offense. Ford did not object to
this finding nor did he ask the court to reconsider its ruling.

We conclude the district court properly found on the record that Ford used a
deadly weapon, and it did not violate Ford's due process rights when it required him to
register as a violent offender.

II. DOES KORA VIOLATE OFFENDERS' DUE PROCESS RIGHTS?

Ford next contends that KORA is unconstitutional on its face because (1) the Act
fails to specify the burden of proof required to find that an offender used a deadly weapon
when committing a person felony and (2) the Act does not give offenders an opportunity
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to contest the district court's exercise of a discretionary finding. Ford asserts these
failures violate defendants' procedural due process rights.

Again, Ford acknowledges he did not challenge the constitutionality of KORA
before the district court. But Kansas courts have considered the constitutionality of
KORA for the first time on appeal to serve the ends of justice and prevent the denial of
fundamental rights. See State v. Watkins, No. 110,702, 2014 WL 4231269, at *1 (Kan.
App. 2014) (unpublished opinion), aff'd 306 Kan. 1093, 401 P.3d 607 (2017).

Determining a statute's constitutionality is a question of law subject to unlimited
review. "'We presume statutes are constitutional and must resolve all doubts in favor of a
statute's validity.'" State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127, cert.
denied 137 S. Ct. 226 (2016). Our duty is to interpret a statute in a way that makes it
constitutional if there is any reasonable construction that would maintain the Legislature's
apparent intent. State v. Gonzalez, 307 Kan. 575, 579, 412 P.3d 968 (2018).

As stated above, the basic elements of procedural due process are notice and "the
opportunity to be heard at a meaningful time and in a meaningful manner." Ellison, 305
Kan. at 526. When determining what due process protections are required, we examine
three factors:

"(1) the private interest affected by the official action; (2) the risk of erroneous
deprivation of that interest through the procedures used and the probable value, if any, of
additional or substitute procedural safeguards; and (3) the government's interest,
including the function involved and the fiscal and administrative burdens the additional
or substitute procedural requirements would entail." In re Care & Treatment of
Ontiberos, 295 Kan. 10, 22, 287 P.3d 855 (2012).

Ford first argues that due process requires a district court to find beyond a
reasonable doubt that a defendant used a deadly weapon when determining whether that
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defendant is a violent offender under K.S.A. 2018 Supp. 22-4902(e)(2). Because K.S.A.
2018 Supp. 22-4902(e)(2) contains no explicit standard of proof, Ford claims the statute
is unconstitutional. Second, Ford asserts that KORA violates his right to due process by
providing no opportunity to contest the district court's exercise of the discretionary
finding that he used a deadly weapon.

A. Does KORA fail to specify the burden of proof?

Typically, statutes that fail to specify a particular standard of proof implicitly
contain a preponderance of evidence standard. See State v. Spain, 263 Kan. 708, 714, 953
P.2d 1004 (1998). In recent Kansas Supreme Court opinions addressing K.S.A. 22-
4902(e)(2), the court mentioned no burden of proof attached to the district court's finding
that the defendant used a deadly weapon. See, e.g., Marinelli, 307 Kan. at 788-89.

The failure of K.S.A. 2018 Supp. 22-4902(e)(2) to mention a burden of proof
suggests a preponderance of evidence standard. This conclusion is further supported by
the Legislature's inclusion of a beyond reasonable doubt standard in subsection (c)(18) of
K.S.A. 2018 Supp. 22-4902, which provides that a sex offender includes a person
convicted of a crime involving "any act which has been determined beyond a reasonable
doubt to have been sexually motivated." If we were to presume that proof beyond a
reasonable doubt is required on all the district court's findings under K.S.A. 2018 Supp.
22-4902, then the language in K.S.A. 2018 Supp. 22-4902(c)(18) specifying the beyond
reasonable doubt standard would become superfluous. See Patterson v. Cowley County,
Kansas, 307 Kan. 616, 626, 413 P.3d 432 (2018) ("We generally presume 'the legislature
does not intend to enact useless or meaningless legislation.'"). As a result, we conclude
that the Legislature intended for the district court to use a preponderance of the evidence
standard when determining whether a defendant used a deadly weapon under K.S.A.
2018 Supp. 22-4902(e)(2).

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A preponderance of the evidence standard does not violate due process in this
context because the function of a standard of proof is to instruct the fact-finder to the
level of confidence that society expects for the particular decision. The different
standards of proof reflect the differences in how society believes the risk of error should
be distributed between the parties. See In re B.D.-Y., 286 Kan. 686, 696, 187 P.3d 594
(2008).

The most stringent burden of proof—beyond a reasonable doubt—applies to
criminal trials due to the gravity of the private interests affected. 286 Kan. at 691. Given
the magnitude of the private interests wrongly lost when a criminal defendant is
erroneously convicted of a crime, "society imposes almost the entire risk of error upon
itself." Addington v. Texas, 441 U.S. 418, 424, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).
As a result, due process requires the State to prove the guilt of an accused beyond a
reasonable doubt on each element of the crime charged. See State v. Ta, 296 Kan. 230,
236, 290 P.3d 652 (2012). By contrast, the preponderance of the evidence standard
reflects a belief that parties should share the risk of error equally. Addington, 441 U.S. at
423.

A preponderance of the evidence standard is presumptively applicable to civil
actions unless "'particularly important individual interests or rights are at stake.'"
Nauheim v. City of Topeka, 309 Kan. 145, 152, 432 P.3d 647 (2019). Cases involving
termination of parental rights and civil commitment are examples of actions that
implicate individual interests so fundamental or important that due process requires a
higher standard of proof than preponderance of the evidence. See Santosky v. Kramer,
455 U.S. 745, 768, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (termination of parental
rights); Addington, 441 U.S. at 431 (civil commitment); K.S.A. 2018 Supp. 38-2269(a)
(clear and convincing standard of proof applies to all termination of parental rights
cases); K.S.A. 2018 Supp. 59-2966 (clear and convincing standard of proof required for
civil commitment of mentally ill).
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However, the private interests affected by KORA registration are outweighed by
the government's interests in public safety. More specifically, the risk of erroneously
depriving defendants of their private interests by using a preponderance of the evidence
standard in a deadly weapon finding is relatively low. KORA registration affects
offenders' private interests by imposing reporting requirements and requiring them to pay
registration fees. However, the registration requirements do not burden Ford's
fundamental right to privacy. See State v. Adams, No. 114,276, 2016 WL 4499520, at *3
(Kan. App. 2016) (unpublished opinion); also see In re W.M., 851 A.2d 431, 450-51
(D.C. 2004) (finding District of Columbia Sex Offender Registration Act infringes on no
fundamental liberty interests). And as other states have recognized, offender registration
requirements do not implicate interests as fundamental or important as those which
trigger a heightened standard of proof. See In re W.M., 851 A.2d at 455; J.J.F. v. State,
132 P.3d 170, 178-79 (Wyo. 2006).

In requiring states to use at least a clear and convincing evidence standard when
terminating parental rights, the United States Supreme Court noted a magnified risk of
erroneous fact-finding because the proceedings "employ imprecise substantive standards
that leave determinations unusually open to the subjective values of the judge." Santosky,
455 U.S. at 762. The Court also noted that termination proceedings are frequently
vulnerable to cultural or class bias because they involve parents who are often poor,
uneducated, and members of minority groups, and the State's ability to present its case
through experienced attorneys, medical experts, and involved agency caseworkers dwarfs
the parents' ability to mount a defense. 455 U.S. at 763.

Conversely, whether a defendant used a deadly weapon is an objective, black-and-
white standard not particularly susceptible to subjective values or biases of a judge. And
concerns about disparities in litigation resources are not as prevalent in a deadly weapon
finding as they are in a finding of parental unfitness. Using a preponderance of the
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evidence standard in a deadly weapon finding does not create an undue risk of an
erroneous deprivation of private interests.

Weighing against a defendant's lesser private interests is the government's
considerable interest in protecting the public. The purpose of KORA is to protect the
public from designated offenders whom the Legislature has concluded are likely to
reoffend. State v. Wilkinson, 269 Kan. 603, 609, 9 P.3d 1 (2000). Unlike other
proceedings requiring a heightened standard of proof, the possible injury to a defendant
from an erroneous classification as a violent offender under K.S.A. 2018 Supp. 22-
4902(e)(2) is not "significantly greater than any possible harm to the state." Addington,
441 U.S. at 427. Although KORA registration affects an offender's private interests, the
impacted interests are not as fundamental or important as the interests involved in the
parent-child relationship or civil commitment. And given the government's compelling
interest in protecting the public from violent offenses committed by recidivists, the State
is not constitutionally required to bear a disproportionate share of the risk of error.

Due process does not require a district court to find beyond a reasonable doubt that
a defendant used a deadly weapon when determining whether that defendant is a violent
offender under K.S.A. 2018 Supp. 22-4902(e)(2).

B. Does KORA fail to provide an opportunity to contest a discretionary
finding?

Ford next claims KORA violates due process because the Act "does not give
defendants a path or an opportunity to contest the court's exercise of a discretionary
finding in K.S.A. 22-4902(e)(2)."

As Ford argues, K.S.A. 2018 Supp. 22-4902(e)(2) "does not affirmatively require
the district court to consider and determine whether [the defendant] used a deadly
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weapon in the commission of [his or] her offense." See State v. Thomas, 307 Kan. 733,
750, 415 P.3d 430 (2018). But Ford fails to explain why due process requires KORA to
outline a process for defendants to oppose the district court's exercise of its discretion to
consider whether a deadly weapon was used.

Registration requirements under KORA are not part of an offender's criminal
sentence. Thomas, 307 Kan. at 750. Instead, an offender's duty to register "springs into
existence by operation of law immediately upon the existence of statutorily prescribed
conditions." 307 Kan. at 750. Relevant to Ford's case, the obligation to register sprang
into existence when two statutorily prescribed conditions existed: (1) his person felony
conviction and (2) the district court's factual finding on the record that a deadly weapon
was used in the commission of the crime.

The Kansas Supreme Court has rejected arguments that KORA requires additional
procedural protections beyond those required to convict the defendant of the underlying
offense and those necessary to deem the defendant an offender. In Wilkinson, the
defendant pled no contest to incest and was ordered to register as a sex offender because
the district court found beyond a reasonable doubt that the crime was sexually motivated.
On appeal, Wilkinson argued this procedure violated his due process rights because
KORA did not afford him a hearing to determine the degree of threat he posed to the
public before requiring him to register. Our Supreme Court rejected Wilkinson's
argument and held:

"[T]he only procedural due process to which Wilkinson was entitled was the process
required to convict him of the underlying offenses . . . and the due process necessary to
certify his offenses as sexually violent crimes within the terms of the Act . . . . Assuming
no constitutionally deficient procedure in arriving at the conviction and in certifying it as
a sexually violent offense under the terms of the Act (neither of which is asserted), there
is no risk that the lack of a hearing would lead to an erroneous application of the Act's
mandatory requirements. [Citation omitted.]" 269 Kan. at 614.
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The only procedural due process to which Ford was entitled was the process
required to convict him of the underlying offense and the due process necessary to deem
him a violent offender under KORA. Ford was considered a violent offender after the
district court found that he used a deadly weapon in the commission of the crime. And
like the requested preregistration hearing in Wilkinson, there is no risk that a defendant's
lack of opportunity to contest the district court's exercise of its discretionary
consideration would lead to an erroneous application of KORA's mandatory
requirements. KORA does not violate defendants' due process rights by failing to include
a specific process for a defendant to contest the district court's exercise of the
discretionary finding that he or she used a deadly weapon.

In sum, KORA does not violate offenders' due process rights by failing to provide
a burden of proof or failing to outline a process to contest a discretionary finding under
K.S.A. 2018 Supp. 22-4902(e)(2). Accordingly, Ford fails to show that KORA is
unconstitutional.

III. DID THE DISTRICT COURT VIOLATE FORD'S CONSTITUTIONAL RIGHTS?

Finally, Ford contends the district court violated his constitutional rights as
described in Apprendi when the judge—rather than a jury—determined that he used a
deadly weapon in the commission of his crime, thus prompting the requirement that he
register as a violent offender under KORA.

Ford failed to raise his Apprendi argument before the district court. However, Ford
asserts we should consider his Apprendi claim for the first time on appeal to prevent the
denial of a fundamental right. Ford correctly notes that our appellate courts have
routinely addressed Apprendi issues raised for the first time on appeal to prevent the
denial of a fundamental right. See State v. Unrein, 47 Kan. App. 2d 366, 369, 274 P.3d
691 (2012), rev. denied 297 Kan. 1256 (2013).
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"'Whether a defendant's constitutional rights as described under Apprendi were
violated by a district court . . . raises a question of law subject to unlimited review.'" State
v. Huey, 306 Kan. 1005, 1009, 339 P.3d 211 (2017), cert. denied 138 S. Ct. 2673 (2018).
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.
Apprendi, 530 U.S. at 490. 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. In contrast, "[t]he
legislature intended KORA to be civil and nonpunitive for all classes of offenders
currently subject to its provisions." Huey, 306 Kan. at 1009. In fact, our Supreme Court
has repeatedly rejected the argument that offender registration under KORA is
punishment. See, e.g., Watkins, 306 Kan. at 1095; Huey, 306 Kan. at 1009-10; Petersen-
Beard, 304 Kan. at 209.

In Huey, the Kansas Supreme Court reviewed procedural facts and arguments
identical to Ford's arguments here. Huey claimed the district court's deadly weapon
finding and resulting registration order violated his constitutional rights under Apprendi.
However, Huey brought his claim for the first time on appeal, so he had not presented
facts to the district court attempting to show that the registration's effects on him were
punitive. 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 was punitive before the court would consider registration
a criminal penalty and that Huey had not shown, as he must, that his registration
requirements constituted punishment. 306 Kan. at 1010. "Because the registration
requirements did not increase Huey's punishment . . . , it was not necessary that Huey's
use of a deadly weapon be found beyond a reasonable doubt by a jury." 306 Kan. at 1010.

Like Huey, Ford did not raise an Apprendi claim before the district court and has
provided no fact-based record for this court to evaluate KORA's alleged punitive effects
17
on him or any other violent offender. Thus, Ford has not shown that his registration
requirements as a violent offender are punishment.

While Ford asserts Huey was wrongly decided, "[t]his court is duty bound to
follow Kansas Supreme Court precedent absent some indication that the court is
departing from its previous position." State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360
P.3d 467 (2015). Because the registration order did not increase Ford's punishment, it
was unnecessary that Ford's use of a deadly weapon be found beyond a reasonable doubt
by a jury. Ford's duty to register as a violent offender under KORA did not violate
Apprendi.

Affirmed.