State v. Shaffer

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NOT DESIGNATED FOR PUBLICATION

No. 119,738

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DENNIS LEE SHAFFER,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed
November 22, 2019. Affirmed.

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

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREEN, P.J., BRUNS, J., and WALKER, S.J.

PER CURIAM: Dennis Lee Shaffer appeals his conviction in Johnson County
District Court for violating the Kansas Offender Registration Act (KORA). He raises two
constitutional challenges to his conviction, but we find both of them to lack merit. He
also contends that the State failed to present sufficient evidence to support his conviction
for violating KORA, but we disagree and affirm Shaffer's conviction.



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FACTS

On July 17, 2017, the State charged Shaffer with failing to report as required by
K.S.A. 2018 Supp. 22-4905(b)(1) of KORA, in violation of K.S.A. 2018 Supp. 22-
4903(a). Shaffer waived his right to a jury trial and proceeded to a bench trial on
stipulated facts, presumably to preserve his constitutional challenges. The following
stipulation of facts by the State and Shaffer ultimately formed the basis for Shaffer's
conviction:

"1. In May of 2017, Johnson County Sheriff's Detective Gary Borstelman received
information that registered sex offender, Dennis Shaffer, had failed to update his
registration in April of 2017 as required by Kansas statute, K.S.A. 22-4905.
"2. Mr. Shaffer was convicted in June of 1994 of First Degree Sexual Abuse in Clark
County, Missouri and, as a result of this conviction, Mr. Shaffer is required to
register as a sex offender. In Kansas, Mr. Shaffer's offender registration is considered
private, meaning that he is required to register per Kansas statutes, but his registration
is not listed on the public offender registration website.
"3. Mr. Shaffer first registered in Johnson County in January of 2010. He completed
registration in Johnson County on January 31, 2017, at which time he listed a home
address of . . . Olathe, Johnson County, Kansas, which remains his current address. A
move from this last listed residence in Olathe, Kansas would cause Mr. Shaffer to be
in violation of his registration by not providing information about a change of
residency within three business days of making that move.
"4. Kansas statutes require Mr. Shaffer to update his registration in the months of
January, April, July and October.
"5. Mr. Shaffer was required to update his registration in April of 2017 but failed to do
so. At no point between May 1, 2017 and July 14, 2017 did he register.
"6. Shaffer was eventually charged in Johnson County District Court with failure to
register."

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The district court inquired of Shaffer as to his understanding of the stipulation of
facts, accepted the stipulation, and then found Shaffer guilty of failing to report as
required under KORA.

Shaffer filed a motion for a dispositional sentencing departure. The district court
ultimately granted the motion and imposed a presumptive, underlying prison term of 34
months but suspended the sentence in favor of 24 months of probation. Because Shaffer
was on postrelease supervision at the time of his conviction, the court ordered Shaffer to
serve 60 days of shock time in jail before being placed on probation.

Shaffer filed a timely notice of appeal from his conviction and sentence.

ANALYSIS

Does federal registration law constitute an unconstitutional delegation of congressional
authority?

Shaffer first argues that requiring him to register because of his Missouri first-
degree sexual abuse conviction is unconstitutional. His argument is not about the
constitutionality of KORA, but instead he challenges the constitutionality of the federal
Sex Offender Registration and Notification Act (SORNA). Shaffer contends that the
provision of SORNA authorizing inclusion of convictions committed before the 2006
enactment of the Act, 34 U.S.C. § 20913(d), is an unconstitutional delegation of
congressional power. Therefore, Shaffer reasons that the Missouri conviction did not
require Shaffer's registration under KORA.

As he concedes, Shaffer did not raise this issue in the district court. Typically,
issues raised for the first time on appeal, even constitutional issues, are not properly
considered. See State v. Alvarez, 309 Kan. 203, 209, 432 P.3d 1015 (2019). Shaffer
contends that consideration of his issue for the first time on appeal is appropriate because
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the issue is solely a legal question. The constitutionality of a statute is a question of law.
State v. Gonzalez, 307 Kan. 575, 579, 412 P.3d 968 (2018). But a legal question is
appropriately resolved on appeal only when the facts upon which the legal question is
framed have been conclusively determined. See Alvarez, 309 Kan. at 209 ("claim
involves only a question of law arising on proved or admitted facts and is determinative
of the case"). But as noted by the State in its appellate brief, we believe it is questionable
whether the legal issue raised by Shaffer is based on determined facts.

As framed by Shaffer, the documents in his file suggest that he was required to
register for his Missouri sex offense conviction because the application of SORNA
required him to register in Missouri. Shaffer's recitation of these facts suggests that he
believes his only KORA obligation to register arose under K.S.A. 2018 Supp. 22-
4902(a)(4) (defining offender to include "any person who has been required to register
under out-of-state law or is otherwise required to be registered"). But in opposition the
State contends that Shaffer's argument is much too narrow, and his June 1994 conviction
for a sex offense in Missouri would likely require him to register under other sections of
KORA regardless of any registration requirement in Missouri or under SORNA. The
State cites K.S.A. 2018 Supp. 22-4902(a)(1), (b)(1), and (c)(16), which read as follows:

"As used is the Kansas offender registration act, unless the context otherwise
requires:
"(a) 'Offender' means:
(1) A sex offender;
. . . .
"(b) 'Sex offender' includes any person who:
(1) On or after April 14, 1994, is convicted of any sexually violent crime;
. . . .
"(c) 'Sexually violent crime' means:
. . . .
(16) any conviction or adjudication for an offense that is comparable to a
sexually violent crime as defined in this subsection, or any out-of-state conviction or
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adjudication for an offense that under the laws of this state would be a sexually violent
crime as defined in this subsection."

The stipulation of facts entered by the parties in this case merely stated that,
because of the June 1994 conviction for first-degree sexual abuse in Missouri, Shaffer
was required to register under KORA. But when two separate statutory provisions may
require offender registration, we cannot presume that the State applied the provision that
requires resolution of a constitutional challenge. See Wilson v. Sebelius, 276 Kan. 87, 91,
72 P.3d 553 (2003) ("Appellate courts generally avoid making unnecessary constitutional
decisions. Thus, where there is a valid alternative ground for relief, an appellate court
need not reach constitutional challenges to statutes."). On the other hand, we also cannot
simply conclude that the State could have applied the other statutory provisions it
suggests in its brief so that we can avoid reaching a constitutional issue. This is true
especially if a criminal defendant might potentially raise other legal arguments based
upon the State's reliance on the alternative statutory provisions.

In short, the record before the district court has not been developed to establish
what statutory basis required Shaffer to register as a sex offender. He merely stipulated
that he was required to do so because of the Missouri conviction. Based on the analysis in
the State's appellate brief, if Shaffer had challenged SORNA in the district court, it is
likely the State would have countered that Shaffer's offender registration requirements
were based on the different statutory provisions noted above which did not rely on
SORNA. In responding to the State, Shaffer certainly would have had the opportunity to
raise other legal arguments in opposition to registration under the alternative statutory
provisions. But because the issue was never raised by Shaffer in district court, the factual
record was not developed to demonstrate that the constitutional challenge he raises in this
appeal presents an actual case or controversy requiring judicial resolution. State v.
Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012) ("A justiciable controversy has
definite and concrete issues between the parties and 'adverse legal interests that are
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immediate, real, and amenable to conclusive relief.'" [Quoting State ex rel. Morrison v.
Sebelius, 285 Kan. 875, 890-91, 179 P.3d 366 (2008)]). Because the stipulation is unclear
as to the precise reason Shaffer was required to register under KORA, and no adequate
record was developed on the issue before the district court, we decline to address the
constitutional issue for the first time on appeal.

Additionally, since there appear to be alternative grounds for requiring Shaffer's
registration under KORA, the constitutional challenges to SORNA he raises on this
appeal appear to be moot. Even if the district court accepted Shaffer's entire argument—
that SORNA required Shaffer to register as a sex offender in Missouri, which triggered
his obligation to register under K.S.A. 2018 Supp. 22-4902(a)(4) of KORA—resolution
of the issue would have no practical effect if Shaffer would also be required to register
under other provisions of KORA, i.e., K.S.A. 2018 Supp. 22-4902(a)(1), (b)(1), and
(c)(16). See Montgomery, 295 Kan. at 840 ("Subsequently, we phrased the test for
mootness as being whether 'it is clearly and convincingly shown the actual controversy
has ended, the only judgment that could be entered would be ineffectual for any purpose,
and it would not impact any of parties' rights.'" [Quoting McAlister v. City of Fairway,
289 Kan. 391, 400, 212 P.3d 184 (2009)]).

Finally, and conclusively for this issue, even if we were somehow to conclude that
Shaffer was only required to register for the 1994 Missouri conviction under K.S.A. 2018
Supp. 22-4902(a)(4) as he suggests, his constitutional challenge to SORNA fails. Since
Shaffer has filed his brief in this case, the United States Supreme Court upheld SORNA
from an attack on grounds that the act unconstitutionally delegates congressional
authority. See Gundy v. United States, 588 U.S. ___, 139 S. Ct. 2116, 204 L. Ed. 2d 522
(2019).

"[SORNA, 34 U.S.C.] § 20913(d) does not give the Attorney General anything like the
'unguided' and 'unchecked' authority that Gundy says. The provision, in Gundy's view,
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'grants the Attorney General plenary power to determine SORNA's applicability to pre-
Act offenders—to require them to register, or not, as she sees fit, and to change her
policy for any reason and at any time.' If that were so, we would face a nondelegation
question. But it is not. This Court has already interpreted § 20913(d) to say something
different—to require the Attorney General to apply SORNA to all pre-Act offenders as
soon as feasible. And revisiting that issue yet more fully today, we reach the same
conclusion. The text, considered alongside its context, purpose, and history, makes clear
that the Attorney General's discretion extends only to considering and addressing
feasibility issues. Given that statutory meaning, Gundy's constitutional claim must fail.
Section 20913(d)'s delegation falls well within permissible bounds. [Citations omitted.]"
Gundy, 139 S. Ct. at 2123-24.

In short, for all of the above reasons Shaffer's challenge to the constitutionality of
SORNA must fail.

Did the State present sufficient evidence to support Shaffer's conviction?

Shaffer's second contention on appeal is that the State failed to provide sufficient
evidence to support his conviction for failing to report under KORA. When the
sufficiency of the evidence is challenged in a criminal case, we examine the record in the
light most favorable to the prevailing party, i.e., the State, and consider whether a
reasonable person could conclude beyond a reasonable doubt that the defendant
committed the charged offense. State v. Fitzgerald, 308 Kan. 659, 666, 423 P.3d 497
(2018).

In order to convict Shaffer of a violation of KORA, the State was required to
prove three elements beyond a reasonable doubt: (1) Shaffer had been convicted of a
crime that required him to register as an offender under KORA, (2) Shaffer failed to
report to the Johnson County Sheriff quarterly as required, see K.S.A. 2018 Supp. 22-
4905(b), and (3) the KORA violation occurred on or about April 2017 in Olathe, Kansas.
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See State v. Sayler, 306 Kan. 1279, 1285, 404 P.3d 333 (2017) (citing the applicable jury
instruction for a KORA violation).

As noted, Shaffer entered several stipulations of fact. Invited error or waiver
principles preclude Shaffer from challenging the existence of those facts on appeal. See
State v. Weber, 297 Kan. 805, 814, 304 P.3d 1262 (2013) (distinguishing between
stipulation of fact, which bars later challenge to existence of that fact, and stipulation to
legal effect of fact).

Shaffer stipulated that he was convicted of first-degree sexual abuse in Missouri in
June 1994. He also stipulated that this conviction required him to register under KORA.
Shaffer is not bound by his stipulation to the legal effect of the prior conviction as to his
obligation to register under KORA. But, he is bound by his stipulation to the existence of
the conviction. As previously discussed, the legal effect of Shaffer's 1994 conviction in
Missouri is established by at least two separate provisions: K.S.A. 2018 Supp. 22-
4902(a)(4) and K.S.A. 2018 Supp. 22-4902(a)(1), (b)(1), and (c)(16). Therefore, Shaffer's
stipulation to the existence of the 1994 conviction for first-degree sexual abuse satisfies
the first element.

Shaffer then stipulated that he listed a residential address in Olathe, Kansas, when
he first registered, and had not registered a change of address (which would itself
constitute a violation of KORA, if Shaffer no longer lived at that address). This
stipulation satisfied the element of where Shaffer was required to register, i.e., with the
Johnson County Sheriff, and the jurisdiction of the district court, i.e., Johnson County
District Court.

Shaffer stipulated that he was obligated to report to the Johnson County Sheriff in
January, April, July, and October 2017. Shaffer stipulated that he did not report during
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the month of April, nor anytime thereafter until July 14, 2017. These stipulations
establish the violation and the approximate date of the violation.

Accordingly, sufficient evidence was presented to the district court to support
Shaffer's conviction. Contrary to Shaffer's argument on appeal, the State was not required
to prove anything beyond the facts established by the stipulations of fact.

Does KORA violate the Ex Post Facto prohibition of the United States Constitution?

The final issue Shaffer raises on appeal challenges the application of the offender
registration provisions of KORA as a violation of the constitutional prohibition against ex
post facto punishment. This issue has been decided adversely to Shaffer by the Kansas
Supreme Court, which has ruled that the offender registration requirements of KORA are
not punitive so as to trigger the prohibition of the Ex Post Facto Clause of the United
States Constitution. See State v. Reed, 306 Kan. 899, 904, 399 P.3d 865 (2017) ("We now
explicitly extend the holding of [State v.] Petersen-Beard[, 304 Kan. 192, 377 P.3d 1127
(2016),] to apply to ex post facto challenges. Registration pursuant to KORA for sex
offenders is not punishment."); Petersen-Beard, 304 Kan. at 196 ("[I]f KORA's lifetime
sex offender registration requirement is punishment for either ex post facto or double
jeopardy purposes, it must necessarily also be punishment for Eighth Amendment
purposes. The reverse would likewise be true.").

Shaffer's argument is premised upon the conclusion that Petersen-Beard was
wrongly decided. Even if we would assume this to be true, we lack the authority to
overrule precedent established by the Kansas Supreme Court. We are duty bound to apply
Kansas Supreme Court precedent absent some indication the court is departing from that
precedent. See McCullough v. Wilson, 308 Kan. 1025, 1034, 426 P.3d 494 (2018);
Majors v. Hillebrand, 51 Kan. App. 2d 625, 629-30, 349 P.3d 1283 (2015). The Kansas
Supreme Court has provided no indication that a majority of the justices are inclined to
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find that KORA constitutes punishment. See, e.g., State v. Perez-Medina, 310 Kan. 525,
539-40, 448 P.3d 446 (2019) (prohibition against judge-made findings to enhance penalty
did not apply to registration requirements because KORA was not punitive); State v.
Rocheleau, 307 Kan. 761, 766, 415 P.3d 422 (2018) (affirming Petersen-Beard's
rejection of ex post facto challenge to KORA).

Shaffer has adequately preserved this issue and is free to seek review by the
Kansas Supreme Court and urge it to change its prior holdings. But since we rely on the
binding precedent, we cannot grant the relief he seeks.

Affirmed.