State v. Wheeler

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NOT DESIGNATED FOR PUBLICATION

No. 114,518

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANGEL WHEELER,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed September 30,
2016. Affirmed.

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

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GREEN, P.J., MCANANY and STANDRIDGE, JJ.

Per Curiam: Angel Wheeler appeals the district court's factual finding that she
committed a crime with a deadly weapon, resulting in the requirement that she register as
a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901
et seq. She contends that the district court violated her rights under the Sixth and
Fourteenth Amendments to the United States Constitution when it made this factual
finding without submitting the matter to a jury.

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Wheeler, the mistress of the victim's husband, got into a fight with the victim and
stabbed her in the abdomen twice with a knife. In its information, the State alleged that
Wheeler used a deadly weapon in the commission of the crime of aggravated battery.
Pursuant to a plea agreement, Wheeler pled guilty to the charge. In exchange for her plea,
the State agreed not to pursue charges against her in other cases.

At the plea hearing, the judge inquired about the factual basis for the plea and
addressed Wheeler as follows:

"[T]he argument led to you causing bodily harm to [the victim] by stabbing her in the
stomach. Nobody's saying that it was great bodily harm 'cause that's not what you're
being charged with, just that the fact that you stabbed her in the stomach caused bodily
harm . . . . So basically you had this deadly weapon, a knife. You stabbed her."

The judge asked Wheeler whether she was pleading guilty based upon these facts.
Wheeler responded: "Yes, Your Honor." The judge then accepted Wheeler's guilty plea
and found her guilty.

At the sentencing hearing, and over the defendant's objection, the judge made a
finding that Wheeler's crime was committed with a deadly weapon. The judge sentenced
Wheeler to 32 months in prison, following which Wheeler was ordered to register for 15
years as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A.
22-4901 et seq.

Wheeler appeals, claiming that the sentencing court violated her constitutional
rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), when the court, rather than a jury, determined that a deadly weapon was used in
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the commission of her crime. This claim raises an issue of law over which we have
unlimited review. See State v. Cheeks, 298 Kan. 1, 4, 310 P.3d 346 (2013).

Under KORA, K.S.A. 2015 Supp. 22-4902(a)(2) and (e)(2), registration is
required of "any person who . . . 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." Wheeler argues that requiring her to register under KORA without a jury
determining that the crime was committed with a deadly weapon increased the penalty
for her crime and violated Apprendi.

Wheeler's Apprendi argument was not raised before the district court. The failure
to raise an objection below usually precludes a defendant from raising the issue on
appeal. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). But we have
traditionally addressed Apprendi issues raised for the first time on appeal to prevent the
denial of a fundamental right. See State v. Luarks, 302 Kan. 972, 975, 360 P.3d 418
(2015). Accordingly, we will address the merits of Wheeler's claim.

At her sentencing hearing, it is clear that Wheeler admitted to the judge that she
used a knife to stab her victim. In doing so, she gave up the right to have the State prove
beyond a reasonable doubt that she used a deadly weapon to commit the aggravated
battery. See State v. Franklin, 44 Kan. App. 2d 156, 161-62, 234 P.3d 860 (2010), rev.
denied 297 Kan. 1250 (2013).

Besides, the factfinding requirement of Apprendi applies only when the facts so
found are used to increase a defendant's sentence. Here, requiring Wheeler to register
under KORA did not increase the sentence the court imposed. See State v. Simmons, 50
Kan. App. 2d 448, Syl. ¶ 13, 329 P.3d 523 (2014), rev. granted June 21, 2016; State v.
Chambers, 36 Kan. App. 2d 228, 238-39, 138 P.3d 405, rev. denied 282 Kan. 792 (2006).
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As stated in Simmons: "The offender registration requirements set forth in KORA arise
automatically by operation of law without court involvement and represent nonpunitive
collateral consequences of judgment; thus, a duty to register under KORA is distinct
from, and not part of, an offender's criminal sentence." 50 Kan. App. 2d 448, Syl. ¶ 13.

Several other cases have held that Apprendi does not apply to a sentencing judge's
finding that a deadly weapon was used in the commission of a crime. See State v. Weis,
47 Kan. App. 2d 703, 717-19, 280 P.3d 805 (2012), rev. granted June 21, 2016; Franklin,
44 Kan. App. 2d at 160-62; State v. Villa, No. 112,107, 2015 WL 1784358, at *2-3 (Kan.
App. 2015) (unpublished opinion), rev. granted June 21, 2016; State v. Huey, No.
109,690, 2014 WL 1707807, at *6 (Kan. App. 2014), rev. granted June 21, 2016. But
Wheeler counters that decisions holding that KORA is not part of a defendant's sentence
were wrongly decided.

In State v. Unrein, 47 Kan. App. 2d 366, 370-72, 274 P.3d 691 (2012), rev. denied
297 Kan. 1256 (2013), which also involved registration for using a deadly weapon in the
commission of the crime, the court rejected many of the arguments that Wheeler raises
here. The Unrein court rejected the defendant's assertion that Chambers was wrongly
decided, concluding: "In fact, Chambers distinguished an increased sentence (that
implicates Apprendi) from increased punishment (that does not implicate Apprendi)
based, in part, on Kansas Supreme Court precedent," which this court is duty bound to
follow. Unrein, 47 Kan. App. 2d at 370-71.

Nevertheless, relying on Southern Union Company v. United States, 567 U.S. ___,
132 S. Ct. 2344, 2357, 183 L. Ed. 2d 318 (2012), which held that penalties implicating
Apprendi include criminal fines, Wheeler argues that KORA registration requires the
registrant to pay a fee which is, in reality, a criminal fine. But we have previously held
that the KORA $20 registration fee is not a criminal fine but a fee for the administration
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of the registration program. See Weis, 47 Kan. App. 2d at 717-19; Unrein, 47 Kan. App.
2d at 372.

Wheeler faults our court's holding in Chambers for failing to discuss the "punitive
qualities" of KORA registration, which she enumerates in detail. These include the
periodic registration requirement, the driver's license renewal requirement, the public
exposure of registrants, the $20 registration fee, and the risk of reimprisonment. But a
number of these matters were addressed and found unpersuasive in Unrein and Weis.
These criticisms were also addressed in the context of sex and drug offenders in Smith v.
Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003); United States v.
Brunner, 726 F.3d 299, 303 (2d Cir. 2013); United States v. Parks, 698 F.3d 1, 5-6 (1st
Cir. 2012); United States v. Hinkley, 550 F.3d 926, 937-38 (10th Cir. 2008), abrogated
on other grounds by Reynolds v. United States, 565 U.S. ___, 132 S. Ct. 975, 182 L. Ed.
2d 935 (2012); State v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996); Simmons, 50 Kan.
App. 2d at 457; State v. Burdick, No. 110,472, 2015 WL 2342145, at *6-7 (Kan. App.
2015) (unpublished opinion), petition for rev. filed June 8, 2015; State v. Richardson, No.
107,786, 2013 WL 3867329, at *2-3 (Kan. App. 2013) (unpublished opinion), rev.
granted June 21, 2016; State v. Scuderi, No. 107,114, 2013 WL 3791614, at *5-6 (Kan.
App. 2013) (unpublished opinion), rev. granted June 21, 2016; State v. Brown, No.
107,512, 2013 WL 2395319, at *1-4 (Kan. App. 2013) (unpublished opinion), petition for
rev. filed June 24, 2013; State v. Hall, No. 106,903, 2013 WL 646482, at *3-4 (Kan. App.
2013) (unpublished opinion), rev. denied 297 Kan. 1250 (2013).

In our Supreme Court's most recent decision relating to KORA, the court found in
State v. Petersen-Beard, 304 Kan. 192, 195, 377 P.3d 1125 (2016), cert. filed July 21,
2016, that KORA registration does not constitute cruel and/or unusual punishment
because KORA sex offender registration is not punishment for the purpose of applying
provisions of the United States or Kansas Constitutions. To the contrary, the court held
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that the legislature intended KORA "to be a nonpunitive and civil regulatory scheme
rather than punishment. [Citations omitted.]" 304 Kan. at 195. We are duty bound to
follow Kansas Supreme Court precedent absent some indication the Supreme Court is
departing from its present position. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d
467 (2015). We see no such indication.

Adhering to the reasoning in Petersen-Beard, we conclude that requiring Wheeler
to register under KORA did not implicate the constraints of Apprendi. The district court
did not violate Wheeler's constitutional rights in requiring her to register under KORA.

Affirmed.