State v. Johnson

1

NOT DESIGNATED FOR PUBLICATION

No. 115,919

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JERRY JOHNSON, JR.,
Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed April 14, 2017.
Affirmed in part, vacated in part, and remanded with directions.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before LEBEN, P.J., PIERRON and BRUNS, JJ.

LEBEN, J.: Jerry Johnson, Jr., challenges the district court's decision to sentence
him to prison on his convictions for possession of methamphetamine, possession of
marijuana with a prior conviction, and criminal threat. Johnson contends that K.S.A.
2016 Supp. 21-6824, which requires that a court sentence certain offenders to drug
treatment instead of prison, should have controlled his sentence. We find that Johnson
qualified for a drug-treatment sentence under that statute; the district court erred when it
instead sent Johnson to prison.

2

Johnson separately challenges another order the district court made at sentencing.
The court found that he had committed a criminal threat with a deadly weapon; on that
basis, the court ordered him to register as a violent offender. Johnson argues that the
registration requirement violated his constitutional rights because it was based on a
deadly weapon finding made by the court rather than by a jury. He's correct that any fact
that increases the penalty for a crime beyond the statutory maximum does have to be
proved to a jury beyond a reasonable doubt and can't simply be found by the court. But
according to Kansas caselaw, the registration requirement isn't punishment, so it doesn't
increase the penalty for his crime. Thus, there's no constitutional problem with the court
making the deadly weapon finding, as it did here. We affirm the district court's judgment
on the registration issue, but we otherwise vacate Johnson's sentence and remand for
resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

This case began in July 2015 when the State charged Johnson with attempted
aggravated robbery, aggravated assault using a knife, criminal threat, interference with a
police officer, possession of methamphetamine, and possession of marijuana with a prior
conviction. As part of a plea deal, Johnson pled no contest to possession of
methamphetamine, possession of marijuana with a prior conviction, and criminal threat;
in exchange, the State dismissed the three other charges. For most Kansas felony
offenses, our sentencing guidelines provide three potential sentences—a low number (the
mitigated sentence), a middle number (the standard sentence), and a high number (the
aggravated sentence)—with the numbers based on the severity level of the crime and the
extent of the defendant's past criminal convictions. The parties agreed to recommend the
low number for each of the convictions but otherwise did not limit what the State or the
defendant could ask for at sentencing. As part of the same deal, Johnson also pled no
contest in three other cases (one count of felony theft in each), and the State dismissed a
traffic case against him.
3

At the plea hearing, the prosecutor summarized the facts underlying these charges:
Sheila Howe had called the police and reported that Johnson had threatened her with a
knife, attempted to steal her Xbox 360 and games, and said, "'I'll kill you.'" When police
arrived and located Johnson, they found methamphetamine and marijuana in his pocket.

Johnson's criminal-history score in this case was E. (The criminal-history
categories range from A, the most serious, to I, the least serious.) Based on Johnson's
score and the severity of his crimes, the presumptive sentence for each of his convictions
would have been probation—but because he committed these crimes while on felony
bond, the district court had the option of imposing a prison sentence instead.
Significantly, the presentence investigation report indicated that Johnson was eligible for
drug treatment—and the presentence investigator checked the "Mandatory" box beside
"Drug Treatment." When drug treatment is simply an option, depending on the facts of
the case, the presentence investigator is supposed to check a different box marked "With
Court Finding."

The court held a single sentencing hearing for all four of Johnson's cases (this one
and the three felony-theft cases). Johnson asked the district court to sentence him to
probation and drug treatment, while the State opposed the request because of Johnson's
history of theft and burglary. The victim asked the district court to sentence Johnson to
drug treatment rather than prison.

The district court sentenced Johnson to prison, the lower number (the mitigated
sentence) for each conviction: 18 months for possession of methamphetamine, 10 months
for possession of marijuana with a prior conviction, and 5 months for criminal threat. (In
the separate cases for felony theft, the court gave Johnson a prison sentence of 11 months
for each of the three theft convictions.) The district court ordered that all these sentences
be served concurrently, or at the same time, effectively sentencing Johnson to 18 months
in prison. The district court also found that Johnson had committed the criminal threat
4

with a deadly weapon (a knife) and ordered him to register as a violent offender for the
next 15 years.

Johnson then appealed to this court.

ANALYSIS

I. The District Court Should Have Sentenced Johnson to Drug Treatment Instead of
Prison.

Johnson argues that the district court should have sentenced him to drug treatment
rather than prison. We will begin by addressing two issues that could preclude our
consideration of this issue altogether.

First, it appears that Johnson has already finished serving the prison portion of his
sentence, so we must consider whether this issue is moot. Kansas appellate courts do not
decide moot questions or render advisory opinions. State v. Hilton, 295 Kan. 845, 849,
286 P.3d 871 (2012). But the mootness doctrine is not jurisdictional; it's just a court
policy recognizing that our role is to determine the outcome of real controversies. State v.
Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014). Mootness applies when the only
judgment that could be entered would be ineffectual for any purpose and would not
impact any of the parties' rights. 298 Kan. at 1082. In some circumstances, fully serving
the prison portion of a sentence will render an appeal moot. See State v. Brown, No.
112,825, 2015 WL 9286987, at *4 (Kan. App. 2015) (unpublished opinion) ("Because
Brown has completely served the confinement portion of his sentence, any remand for
resentencing would be ineffectual for any purpose."), petition for rev. filed January 14,
2016; State v. Fields, No. 113,341, 2015 WL 7693753, at *1 (Kan. App. 2015)
(unpublished opinion) (mandate issued January 14, 2016) (claim of illegal sentence based
on incorrect criminal history score moot because defendant already served full sentence).
5

But here, Johnson claims that this issue isn't moot because he remains on
postrelease supervision, so he hasn't completely finished serving his sentence. He also
notes that if he had been properly sentenced to drug treatment and successfully completed
the drug-treatment program while on probation, he wouldn't have been subject to any
postrelease term at all. See K.S.A. 2016 Supp. 22-3717(d)(1) (postrelease supervision
follows the completion of the prison portion of sentence). Furthermore, he points out that
there is a concrete difference between the sentence he's currently serving (postrelease
supervision) and the sentence he should have been given (drug treatment paid for, at least
in part, by the State). On these facts, we agree that his rights would be impacted if we
vacated his sentence because he would be resentenced to state-sponsored drug treatment.
The drug treatment is a real distinction and something that Johnson didn't receive in
prison and isn't receiving on postrelease supervision.

Second, we recognize that Johnson did not raise this issue before the trial court.
While he did ask to be given probation and drug treatment, he didn't argue at sentencing
that the district court had no option but to send him to drug treatment. That's apparently
because everyone recognized that Johnson had a presumptive prison sentence in each of
the cases in which he had been convicted of felony theft because he had several prior
theft convictions. See K.S.A. 2016 Supp. 21-6804(p) (providing for presumptive prison
sentence for felony theft when defendant has three or more prior felony theft or burglary
convictions). So Johnson's attorney filed a motion in each of the theft cases for a
dispositional sentencing departure from prison to probation. That attorney also filed a
departure motion in the case now before us—even though Johnson didn't have a
presumptive prison sentence in this case. Then in the single sentencing hearing held in all
of the cases, Johnson's attorney never argued that the court was required to sentence
Johnson to drug treatment in this case; she merely argued that the court should do so.

Even so, if the sentencing statutes required that Johnson be given probation and a
drug-treatment sentence, sending him instead to prison would be an illegal sentence. See
6

State v. Gray, 303 Kan. 1011, 1014, 368 P.3d 1113 (2016) (noting that a sentence that
doesn't conform to statutory requirements is an illegal sentence). And an illegal sentence
may be challenged at any time—even if the proper argument wasn't made at sentencing.
303 Kan. at 1014.

Moving on to the merits, Johnson correctly argues that the district court should
have sentenced him to drug treatment rather than sending him to prison.

We review the interpretation of sentencing statutes independently, without any
required deference to the district court's conclusion. State v. Andelt, 289 Kan. 763, 768,
217 P.3d 976 (2009). The resolution of this issue turns on the application of three
different sentencing statutes: the special rule that allows a district court to impose a
prison sentence instead of what would otherwise be presumptive probation (K.S.A. 2016
Supp. 21-6604[f]), the drug-treatment statute (K.S.A. 2016 Supp. 21-6824), and the
multiple-conviction sentencing statute (K.S.A. 2016 Supp. 21-6819).

K.S.A. 2016 Supp. 21-6604(f) provides that even if a defendant's presumptive
sentence is probation, a court can nonetheless impose a prison sentence if the defendant
committed the new crime while on felony bond. Johnson committed his crimes while on
felony bond. So even though Johnson's presumptive sentence was probation, the district
court had authority under K.S.A. 2016 Supp. 21-6604(f) to impose a prison sentence.

But at the same time, K.S.A. 2016 Supp. 21-6824 requires that a court sentence
certain qualified offenders to drug treatment, and Johnson was one such qualified
offender: he committed a drug-possession offense in grid box 5-E, had no disqualifying
convictions, and met the risk-assessment requirements outlined in the statute. Johnson's
presentence investigation report reflects this conclusion; it states both that he is eligible
for drug treatment and that drug treatment is "[m]andatory." That's based on the language
of K.S.A. 2016 Supp. 21-6824, which provides that if an offender is assigned a high-risk
7

status in the drug-abuse assessment and a high- or moderate-risk status in the criminal-
risk-and-needs assessment, then "the sentencing court shall commit the offender to
treatment in a drug abuse treatment program . . . ." (Emphasis added.)

So while one statute gives the district court the option to impose a prison sentence
instead of probation, the other requires the district court to impose drug treatment—what
do we do when both of these apply in the same case? According to Kansas caselaw, the
drug-treatment statute prevails. Andelt, 286 Kan. at 774; State v. Worley, No. 114,899,
2016 WL 6024584, at *3 (Kan. App. 2016) (unpublished opinion) (mandate issued
November 21, 2016) (following Andelt and noting that later statutory amendments didn't
change the analysis).

The State argues that this case is different from Andelt because it involves multiple
convictions in a single case. According to the State, the mandatory-drug-treatment statute
doesn't apply to cases involving multiple convictions.

Our court has previously rejected this argument in State v. Sims, No. 104,406,
2011 WL 3891878, at *3-5 (Kan. App. 2011) (unpublished opinion). We do so again
here.

The drug-treatment statute applies to offenders who are "convicted of a felony
violation" of certain drug-possession statutes. K.S.A. 2016 Supp. 21-6824(a). The State
urges us to read this statute narrowly and in the singular, applying it only to defendants
who have a single felony conviction and not to defendants who have more than one
conviction in a single case. But the Kansas Legislature has instructed that the singular can
include the plural and the plural can include the singular—so the singular language in the
statute ("a felony conviction") isn't controlling. K.S.A. 2016 Supp. 77-201, Third.

8

The State also claims that applying the mandatory-drug-treatment statute in
multiple-conviction cases will lead to absurd results, such that a defendant convicted of
both rape and drug possession in a single case would have to be sentenced to drug
treatment instead of prison. This argument misses the mark because it ignores K.S.A.
2016 Supp. 21-6819, which governs sentencing in cases involving multiple convictions.
That statute directs a district court in a multiple-conviction case to establish a base
sentence based on the primary crime, and "[t]he primary crime is the crime with the
highest crime severity ranking." K.S.A. 2016 Supp. 21-6819(b)(2). The statute also
provides that if one crime is on the drug grid and one on the nondrug grid—and one
crime is presumptive prison while the other is presumptive probation—the presumptive-
prison crime will be the base offense. K.S.A. 2016 Supp. 21-6819(b)(2). So in the State's
hypothetical, the defendant convicted of rape and drug possession would have a
presumptive prison sentence. See K.S.A. 2016 Supp. 21-6819(b)(2); Sims, 2011 WL
3891878, at *5.

In Sims, our court assumed that the reference to a single "offense" under the drug-
treatment statute referred to the primary crime identified under the multiple-convictions
statute, especially since we presume that the legislature acts with knowledge of already-
existing law. 2011 WL 3891878, at *4. Accordingly, the Sims court found that the drug-
treatment statute applied to multiple-conviction cases. We agree.

The State's argument also ignores the possibility of both prison and drug-treatment
sentences. Here, the district court could properly sentence Johnson to prison in his other,
presumptive-prison cases even though it was required to give him drug treatment in this
case. No statute has been cited to us that precludes that result. See State v. Madden, No.
105,897, 2012 WL 2476988, at *5-7 (Kan. App. 2012) (unpublished opinion) (finding
that defendant should have been sentenced to drug treatment in one of his cases but
affirmed his prison sentence in another, simultaneous case and noting that once the
9

defendant had served his prison sentence, he would then have to complete his drug-
treatment sentence).

To decide Johnson's case, we need not determine whether, in the State's
hypothetical, the court could first sentence someone convicted of rape to prison, with that
sentence followed by drug treatment on a qualifying conviction in the same case. In
Johnson's case, his base offense was the conviction that qualified him for mandatory drug
treatment, and no other conviction in this case took him out of the statute's mandate. The
district court erred when it sentenced him to prison.

II. The District Court Did Not Violate Johnson's Constitutional Rights When It Found
that He Had Used a Deadly Weapon and Required Him to Register as a Violent Offender.

Johnson next argues that the district court violated his Sixth and Fourteenth
Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000), when it found that he had committed criminal threat with a deadly
weapon and ordered him to register as a violent offender.

Johnson didn't make this argument at the district court, either, so we must once
again consider whether it may be raised for the first time on appeal. State v. Phillips, 299
Kan. 479, 493, 325 P.3d 1095 (2014). One situation that qualifies is when consideration
of the issue is necessary to prevent the denial of fundamental rights. 299 Kan. at 493.
Because Apprendi protects the fundamental rights to due process and a jury trial, we will
review Johnson's newly raised Apprendi issue to prevent the denial of these rights.
Phillips, 299 Kan. at 493; State v. Unrein, 47 Kan. App. 2d 366, 369, 274 P.3d 691
(2012), rev. denied 297 Kan. 1256 (2013). Whether a defendant's constitutional rights
have been violated is a question of law that we review without any required deference to
the district court. 47 Kan. App. 2d at 369.

10

Under the Kansas Offender Registration Act, a district court can order a defendant
to register as a violent offender if (among other reasons) the defendant is convicted of a
person felony and the court finds that the defendant used a deadly weapon to commit that
felony. K.S.A. 2016 Supp. 22-4902(e)(2). In this case, that's exactly what happened:
Johnson was convicted of criminal threat (a person felony), and the district court found
that he had used a deadly weapon (a knife) to commit that crime, so it ordered him to
register as a violent offender for the next 15 years.

Apprendi held that because of the Sixth Amendment right to a jury trial and the
Fourteenth Amendment right to due process, "[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 476-85,
490. So Johnson argues that the district court violated Apprendi because ordering him to
register as a violent offender increased the penalty for his crime and was based on a court
finding that hadn't been proved to a jury beyond a reasonable doubt.

But there's another wrinkle in play here: Is registration as a violent offender
punishment? Or is it merely a nonpunishment, community-safety measure? If it's not
punishment, then Apprendi does not apply.

Our court has held on several occasions that a registration requirement doesn't
increase the penalty for a crime beyond the legal maximum because registration is
separate from and doesn't impact the length of a defendant's sentence. Unrein, 47 Kan.
App. 2d at 372; State v. Chambers, 36 Kan. App. 2d 228, 238-39, 138 P.3d 405, rev.
denied 282 Kan. 792 (2006). Based on those cases, requiring a defendant to register as a
violent offender, even when the finding that triggers registration is made by the court,
rather than a jury, doesn't violate Apprendi. Unrein, 47 Kan. App. 2d at 372; Chambers,
36 Kan. App. 2d at 238-39.

11

Whether our prior rulings on this question are still good law is put in some doubt
by our Supreme Court's ruling in State v. Charles, 304 Kan. 158, 178, 372 P.3d 1109
(2016). In that case, the Kansas Supreme Court reached the opposite conclusion, holding
that because a registration requirement qualifies as a type of punishment, imposing
registration effectively increases the penalty for a crime. Under this reasoning, imposing
registration without a jury finding that the defendant used a deadly weapon would violate
Apprendi. Charles, 304 Kan. at 178.

But once the Kansas Supreme Court gives an indication that it is departing from its
own precedent, we are no longer bound to follow that precedent. Heartland Presbytery v.
Presbyterian Church of Stanley, Inc., 53 Kan. App. 2d 622, Syl. ¶ 10, 390 P.3d 581
(2017). And the Kansas Supreme Court has given a strong indication that Charles isn't
good law anymore.

The ruling in Charles was based on a case published on the same day, Doe v.
Thompson, 304 Kan. 291, 373 P.3d 570 (2016), overruled by State v. Petersen-Beard,
304 Kan. 192, 377 P.3d 1127 (2016). Thompson, a four-to-three decision, held that the
registration requirement was a type of punishment; therefore, the Ex Post Facto Clause of
the United States Constitution applied to prevent retroactive application of amendments
to the registration statutes. 304 Kan. 291, Syl. ¶ 7. But Thompson was overruled on the
day it was issued: Petersen-Beard, with a different four-judge majority, held that the
registration requirement couldn't be challenged as cruel and unusual punishment under
either the United States or the Kansas Constitutions because it was not a type of
punishment. 304 Kan. 192, Syl. ¶¶ 1-2. Petersen-Beard didn't expressly overrule Charles,
but it did expressly overrule Thompson. And in Charles, the court noted that the
Petersen-Beard holding—which is the exact opposite of the Thompson holding that
Charles relied on—"may influence whether the [registration-requirement] holding of this
case is available to be relied upon by violent offenders whose appeals have yet to be
decided." 304 Kan. at 179.
12

So while Charles is exactly on point and hasn't been expressly overruled, we have
an indication, both from the Charles court and from the differently constituted Petersen-
Beard court, that the Supreme Court is departing from the position that imposing a
registration requirement based on a court finding that the defendant used a deadly
weapon violates Apprendi. See State v. Secrest, No. 115,565, 2017 WL 543546, at *4-5
(Kan. App. 2017) (unpublished opinion), petition for rev. filed March 9, 2017; State v.
Brown, No. 114,808, 2016 WL 7429424, at *8-9 (Kan. App. 2016) (unpublished
opinion), petition for rev. filed January 18, 2017. We note too that the Petersen-Beard
decision was issued by the full, regular members of the Kansas Supreme Court, while the
Charles and Thomas courts included one judge who was not a member of the court,
sitting by designation for those cases.

We conclude that Charles is no longer good law. Thus, the district court did not
violate Apprendi when it found that Johnson used a deadly weapon in the course of
committing a person felony and relied on that finding to require Johnson to register as a
violent offender. See Secrest, 2017 WL 543546, at *5 (no Apprendi violation in these
circumstances); accord State v. Perez-Medina, No. 114,589, 2017 WL 262025, at *6
(Kan. App. 2017) (unpublished opinion), petition for rev. filed February 21, 2017; Brown,
2016 WL 7429424, at *8-9; State v. Wheeler, No. 114,518, 2016 WL 5853090, at *3
(Kan. App. 2016) (unpublished opinion), petition for rev. filed October 28, 2016; State v.
Campbell, No. 114,167, 2016 WL 3407598, at *6 (Kan. App. 2016) (unpublished
opinion), petition for rev. filed July 12, 2016.

We affirm the district court's judgment on the registration requirement, but we
otherwise vacate Johnson's sentence and remand for resentencing.