State v. Zapata

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NOT DESIGNATED FOR PUBLICATION

No. 120,529

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

OSCAR ZAPATA JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed February 14, 2020.
Affirmed in part, reversed in part, and remanded with directions.

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

Barry K. Disney, senior deputy county attorney, Barry Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., HILL and GARDNER, JJ.

PER CURIAM: Oscar Zapata Jr. appeals from his sentence after pleading no contest
to one count each of aggravated burglary and aggravated sexual battery. At the original
sentencing, the district court imposed a 36-month period of postrelease supervision. A
few weeks later, the State filed a motion requesting that the district court resentence
Zapata in accordance with K.S.A. 2018 Supp. 22-3717(d)(1)(G), which requires lifetime
postrelease supervision for persons being sentenced for a sexually violent crime
committed on or after July 1, 2006, when the offender was 18 or older. After holding a
hearing, the district court found that Zapata's original sentence was illegal and
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resentenced him to lifetime postrelease supervision. After a thorough review of the
court's decision, we affirm in part, reverse in part, and remand with directions.

FACTUAL AND PROCEDURAL HISTORY

Around 2 a.m. on September 15, 2017, C.H. was being escorted back to her
apartment by a male friend after becoming intoxicated at a bar in Manhattan. Zapata
drove by and offered to give them a ride in his truck. Zapata and the friend carried C.H.
into her apartment and left her there passed out on the living room floor. Zapata then
drove away with the friend to drop him off at another residence and returned alone to
C.H.'s apartment.

Less than an hour later, C.H.'s roommates returned to the apartment to find Zapata
with his pants pulled down and huddled over C.H.—still passed out on the floor but now
with her pants and underwear pulled down to her ankles. One roommate yelled, "[H]ey,
stop," and told the other roommate, "I think [C.H.] is getting raped." Zapata quickly got
up from the floor and pulled his pants up, grabbed his keys, pushed past the roommate
through the door, and fled in his truck.

After being identified and located by the police, Zapata admitted he knew C.H.
was intoxicated but said he was trying to wake her up to "do sexual things to her." The
State charged Zapata with aggravated burglary and attempted rape of C.H.

In August 2018, Zapata pled no contest to the aggravated burglary and a reduced
charge of aggravated sexual battery. The State agreed to recommend concurrent
sentences, and Zapata agreed not to seek any departure from the presumptive sentence.

Zapata's acknowledgment of rights and entry of plea form reflected that he was 22
years old, that his counsel advised him the aggravated burglary charge was a severity
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level 4 person felony which carried a postrelease supervision period of 36 months, and
that the aggravated sexual battery charge was a severity level 5 person felony which
carried a postrelease supervision period of 24 months. The presentence investigation
report reflected the same, including the fact that he was 21 at the time of the offenses.

At sentencing, the district court sentenced Zapata to 50 months' imprisonment on
the aggravated burglary charge as the primary offense and 32 months' imprisonment on
the aggravated sexual battery charge. As to postrelease supervision, the court imposed a
term of 36 months for each offense.

Approximately two weeks later, the State filed a motion requesting that the district
court resentence Zapata. The State explained that Zapata's aggravated sexual battery
conviction was a sexually violent crime as defined in K.S.A. 2018 Supp. 22-
3717(d)(1)(G) and (d)(5), which required the district court to impose a mandatory period
of lifetime postrelease supervision. Because the district court only sentenced him to a 36-
month postrelease supervision period, his sentence was illegal, and the court needed to
correct Zapata's sentence. The State ended its motion by conceding that the court should
give Zapata a chance to withdraw his plea "[b]ecause the defendant's counsel erroneously
advised him of the wrong period of post-release."

Zapata responded, asserting that the State failed to allege in its motion why the
district court had jurisdiction to resentence him and that the court lacked jurisdiction to
modify a legal sentence. He also asserted that the district court lacked jurisdiction to
resentence him because the court properly imposed a lesser term of postrelease
supervision. Zapata referenced other cases in which Kansas courts have held that lifetime
postrelease supervision was unconstitutional "as applied" to other defendants convicted
of sexually violent crimes, including State v. Riffe, 308 Kan. 103, 418 P.3d 1278 (2018),
and State v. Proctor, 47 Kan. App. 2d 889, 280 P.3d 839 (2012), rev'd and remanded by
S. Ct. order dated June 19, 2013. Zapata raised additional challenges, including that
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lifetime postrelease supervision as applied would be unconstitutional under the Eighth
Amendment to the United States Constitution and Section 9 of the Kansas Constitution
Bill of Rights. On this second point, Zapata argued that the factors set out in State v.
Freeman, 223 Kan. 362, 574 P.2d 950 (1978), favored a finding that imposing lifetime
postrelease supervision would be unconstitutional in his case.

At the resentencing hearing, the district court first explained to Zapata that a
lifetime postrelease supervision period should have been imposed instead of a 36-month
period and gave him a chance to withdraw his plea. Zapata initially said he was confused
but ultimately said he understood and declined to withdraw the plea. After hearing
arguments from counsel on whether Zapata should be resentenced, the court determined
that it had failed to follow the statutory provisions, leading to an illegal sentence. As to
the constitutionality of lifetime postrelease supervision, the court found:

"As it relates to the other arguments made as to the constitutionality of it or the
other issues set forth in Freeman, the first factors that courts are to consider, degree of
danger, facts of the crime, either it was violent or nonviolent. Both parties have stated
their position as to what the facts of the case are and what the facts of the case reveal. The
Court has considered both the statements made by defense and by the State as it relates to
those items.
"As to the second Freeman factor, comparing the punishment with other more
serious crimes, the defendant correctly points out that we have what many individuals
would consider to be more serious crimes that do not carry a lifetime post-release. This
becomes a very difficult one to weigh by this Court. It's calling for me to make a
judgment as to what crimes are serious or how much one crime is more serious than
another crime. It's always been my belief that the legislature makes that decision when
they pass the laws and the statutory provisions.
"Even though I might feel like one crime is more serious than the other, and one
crime should contain a longer sentence, or one crime should contain the longer post-
release, I believe under the Freeman case and the others cited that unless it's something
which is obviously out of line, is best left up to the legislature.
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"The third factor, of course, is comparing other states or jurisdictions, and it's
apparently uncontroverted not only in case law but statements that Kansas is in a
minority, small minority that even provides for lifetime post-release. Once again, because
we're not with the majority, does that make this an unconstitutional situation?
"Having considered all of those factors, I don't believe any of them are
compelling to the point that this Court is willing to order—enter such an order. Therefore,
I am ready to proceed with sentencing at this time."

Ultimately, the district court resentenced Zapata to concurrent prison terms of 50
months on the aggravated burglary charge, 32 months on the aggravated sexual battery
charge, and ordered lifetime postrelease supervision.

Zapata subsequently filed a motion asking the district court to make additional
findings on its decision to resentence him and declare lifetime postrelease supervision
constitutional as applied to the facts of the case. The court granted the request by issuing
a journal entry about two weeks after Zapata filed a timely notice of appeal. The order
memorialized these findings of fact and conclusions of law:

"1. The defendant entered a no contest plea to Aggravated Burglary and Aggravated
Sexual Battery on August 15th, 2018.
"2. Prior to entering his plea the defendant was advised in an Acknowledgment of
Rights form that the post release supervision duration period for a conviction of
Aggravated Sexual Battery was 36 months.
"3. The defendant was sentenced on October 1st, 2018, at which time the court
imposed a post-release supervision term of 36 months for the Aggravated Sexual
Battery conviction.
"4. After sentencing, the Kansas Department of Corrections notified the court and the
parties that . . . the post release supervision period imposed by the court was
contrary to K.S.A. 2013 Supp. 22-3717(d)(l)(G) and (d)(5) which requires
offenders convicted of sexually violent crimes to have a mandatory post release
supervision for the duration of the person's natural life.
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"5. On October 29th, 2018 the defendant was brought before the court and informed
that the post release duration period imposed upon him at sentencing did not
conform to the applicable statutory provision. The court afforded the defendant an
opportunity to withdraw the plea he had entered on August 15th, 2018. The
defendant request[ed] time to consider the matter.
"6. On November 5th, 2018, the defendant filed a motion asserting that the court did
not [have] jurisdiction to modify the sentence previously imposed.
"7. On November 9th, 2018, the defendant filed a pleading asserting that the court
lacked jurisdiction to modify the sentence, that the sentence originally imposed was
legal, and that a period of lifetime post release supervision is unconstitutional under
the facts of this case.
"8. On November 13th, 2018, the defendant appeared in court in person and through
his attorney. The defendant was advised that the crime of Aggravated Sexual
Battery requires mandatory post release supervision for the duration of the person's
natural life. The defendant was again afforded a chance to withdraw his August
15th, 2018 plea. The defendant then inform[ed] the court that he d[id] not want to
withdraw the plea he entered on August 15th, 2018.
"9. The court considers the defendant's objection to lack of jurisdiction and his claim
that his sentence imposed was legal. The court finds that because the post release
supervision period imposed upon the defendant at his October 1st, 2018 sentencing
did not conform to the applicable statutory provision it was an illegal sentence.
Because K.S.A. 22-3504 gives the trial court jurisdiction to correct an illegal
sentence at any time the court does have jurisdiction to correct the sentence.
"10. The court considers that defendant's motion that the lifetime post-release
supervision is unconstitutional under the facts of this case and finds that the same is
not unconstitutional under the facts of the case.
"11. The court then orders that the defendant be resentenced and the matter proceeds to
sentencing as more fully set forth in the Kansas Sentencing Guidelines Journal
Entry of Judgment."

Zapata timely appeals.


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ANALYSIS

Zapata's main argument on appeal is that the district court lacked jurisdiction to
vacate his original sentence of 36 months postrelease supervision because it was a legally
imposed sentence. He also raises two alternative arguments, asserting that even if the
court had jurisdiction to resentence him, (1) the court's decision on the constitutionality
of lifetime postrelease supervision was not supported by sufficient factual findings and
based on legal errors; and (2) the court improperly engaged in judicial fact finding in
violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), to extend his postrelease supervision period.

We first discuss the legality of Zapata's original sentence before considering his
constitutional challenges. If the 36-month postrelease supervision term originally
imposed was a legal sentence then the district court lacked jurisdiction to correct that
sentence. In turn, the lifetime postrelease supervision portion of Zapata's sentence would
be vacated, causing both of his constitutional challenges to be moot.

The district court had jurisdiction to correct Zapata's original sentence.

Zapata argues the original sentence imposed in this case was legal and thus the
district court lacked jurisdiction to correct the postrelease supervision period by imposing
a lifetime term. He asserts that his original postrelease supervision term was not an illegal
sentence because: (1) an "illegal sentence" composed of term-of-years postrelease
supervision period may "sometimes" be constitutionally required and (2) the district court
failed to make an explicit finding that he was over the age of 18 when he committed the
aggravated sexual battery, so the lifetime postrelease supervision provision was not
"triggered."

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In response, the State notes Zapata pled no contest to aggravated sexual battery, a
sexually violent crime that requires mandatory lifetime postrelease supervision under
K.S.A. 2018 Supp. 22-3717(d)(1)(G)(i). The State asserts Zapata's first argument is
meritless because he is making a constitutional challenge to claim that his original
sentence was legal, but the Kansas Supreme Court has held that the definition of an
illegal sentence does not include such claims. As to Zapata's challenge to the lack of an
age finding, the State contends Zapata's age was "clearly established" because he stated
he was 22 years old on the plea agreement forms.

Our standard of review is unlimited.

The parties agree that this court exercises unlimited review over whether a
sentence is illegal under K.S.A. 2018 Supp. 22-3504. State v. Lee, 304 Kan. 416, 417,
372 P.3d 415 (2016). Likewise, this court exercises unlimited review where resolving an
issue turns on questions of statutory interpretation. State v. Alvarez, 309 Kan. 203, 205,
432 P.3d 1015 (2019).

Zapata's original sentence was illegal because it did not conform to the applicable
statutory provision.

A sentence is illegal under K.S.A. 2018 Supp. 22-3504(3) when it is "[i]mposed
by a court without jurisdiction; that does not conform to the applicable statutory
provision, either in character or punishment; or that is ambiguous with respect to the
time and manner in which it is to be served at the time it is pronounced." (Emphasis
added.) A court may correct an illegal sentence at any time while the defendant is serving
the sentence. K.S.A. 2018 Supp. 22-3504(1). Because the definition of an illegal sentence
does not encompass violations of constitutional provisions, a defendant may not
challenge a sentence on constitutional grounds under K.S.A. 2018 Supp. 22-3504. Lee,
304 Kan. at 418.

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Zapata pled no contest to aggravated sexual battery, and the district court imposed
a postrelease supervision period of 36 months. However, K.S.A. 2018 Supp. 22-
3717(d)(1)(G)(i) requires a lifetime postrelease supervision period for "persons sentenced
to imprisonment for a sexually violent crime committed on or after July 1, 2006, when
the offender was 18 years of age or older." For offenders under 18 years old, the
mandatory period of postrelease supervision is 60 months. K.S.A. 2018 Supp. 22-
3717(d)(1)(G)(ii). Aggravated sexual battery is a sexually violent crime. K.S.A. 2018
Supp. 22-3717(d)(5)(I).

The district court ultimately determined Zapata's original sentence failed to take
K.S.A. 2018 Supp. 22-3717(d)(1)(G) into account, resulting in an illegal sentence. But
Zapata argues, for the first time on appeal, that by not making a finding that Zapata was
over the age of 18, it could only sentence him to a limited term of postrelease
supervision. So the sentence was legal in the absence of that finding.

But the sentence imposed would not have been legal even under Zapata's theory.
The statute required that Zapata be sentenced to 60 months postrelease supervision if he
was under 18 years old and lifetime postrelease supervision if he was 18 or over. So
resentencing was required even if there was no evidence he was 18 or over.

a. The district court had undisputed evidence that Zapata was over the age
of 18.

Understandably, Zapata did not argue that there had been no proof that he was 18
or over at the sentencing, apparently content that his postrelease supervision term was
even less than statutorily required. But he did not make the argument at his resentencing
hearing either. He makes the argument for the first time on appeal.

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But an appellant cannot raise issues for the first time on appeal. Although there are
several exceptions to this general rule, failure to invoke an exception and explain why
this court should hear the issue for the first time on appeal is fatal to Zapata's claim. See
State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018).

Moreover, there was no dispute at sentencing that Zapata was over the age of 18.
He filed a signed Acknowledgement of Rights and Entry of Plea unequivocally stating he
was 22 years old. The document was entered in the record in conjunction with his plea.
And regardless, the district court has jurisdiction to correct a sentence that is illegal.

b. A successful "as applied" challenge to lifetime postrelease supervision
does not change the statutory definition of an illegal sentence.

In the alternative, Zapata acknowledges that K.S.A. 2018 Supp. 22-3717(d)(1)(G)
requires lifetime postrelease supervision, but he still asserts that two developments in the
law cause his lesser postrelease term to be a legal sentence not subject to modification or
correction. The crux of his argument seems to be that the possibility of a successful
constitutional challenge to an otherwise statutorily legal sentence should preclude the
court from correcting a previously ordered illegal sentence. Zapata's argument is
unpersuasive.

"'A claim that a sentence fails to conform to constitutional requirements is not a
claim it fails to conform to statutory requirements.'" State v. Edwards, 281 Kan. 1334,
1337, 135 P.3d 1251 (2006) (quoting State v. Gayden, 281 Kan. 290, 293, 130 P.3d 108
[2006]). A defendant in Zapata's position can still challenge lifetime postrelease
supervision on constitutional grounds. As Zapata points out in his brief, both the Kansas
and United States Constitutions control over statutes. In sum, we must reject Zapata's
request to create another definition of "illegal sentence" that incorporates successful "as
applied" constitutional challenges.
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In sum, Zapata's original sentence was illegal, and the district court had
jurisdiction to correct it.

The district court erred by not making adequate findings of fact and conclusions of law
regarding Zapata's claim that lifetime postrelease supervision was unconstitutional as
applied.

Zapata claims, in the alternative, that his new sentence is unconstitutional. He
asserts that lifetime postrelease supervision would be a cruel or unusual punishment in
violation of the Eighth Amendment to the United States Constitution and Section 9 of the
Kansas Constitution Bill of Rights as applied to the specific facts of his case. Zapata
contends none of the district court's comments at the hearing or its journal entry
memorializing the resentencing adequately addressed the required factors under
Freeman, 223 Kan. at 367, and asks this court to reverse the order and remand so the
district court can make those findings. He properly preserved this issue for appeal.

Standard of review

Whether a sentence is cruel or unusual encompasses both legal and factual
determinations. State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012). As a result,
appellate courts will review a district court's factual findings for substantial competent
evidence and its legal conclusions de novo. State v. Funk, 301 Kan. 925, 933, 349 P.3d
1230 (2015). A challenge to lifetime postrelease supervision imposed under K.S.A. 2018
Supp. 22-3717(d)(1)(G) is considered an indirect attack on the statute's constitutionality
as applied, so "if there is any reasonable way to construe a statute as constitutional, courts
have the duty to do so by resolving all doubts in favor of constitutionality." Mossman,
294 Kan. at 906-07.

The Kansas Supreme Court has held that this sort of challenge to lifetime
postrelease supervision is ripe for appeal, despite being an inherently hypothetical
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challenge based on a potential future violation, because (1) lifetime postrelease
supervision is part of a defendant's sentence and (2) an individual subject to lifetime
postrelease supervision "will still be under a sentence when he [or she] is on postrelease
supervision." Mossman, 294 Kan. at 907.

Section 9 of the Kansas Constitution Bill of Rights

In Kansas, the State may not inflict cruel or unusual punishment upon persons
convicted of crimes. Kan. Const. Bill of Rights, § 9. This prohibition includes any
punishment that "although not cruel or unusual in its method . . . is so disproportionate to
the crime for which it is inflicted that it shocks the conscience and offends fundamental
notions of human dignity." Freeman, 223 Kan. at 367; see State v. Gomez, 290 Kan. 858,
Syl. ¶ 9, 235 P.3d 1203 (2010). Zapata argues lifetime postrelease supervision is so
disproportionate under the facts in his case that it violates Section 9.

To determine whether a sentence's length is unconstitutionally disproportionate to
the crime for which that sentence is imposed, Kansas courts consider three factors
commonly known as the Freeman factors:

"'(1) The nature of the offense and the character of the offender should be
examined with particular regard to the degree of danger present to society; relevant to this
inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the
extent of culpability for the injury resulting, and the penological purposes of the
prescribed punishment;
"'(2) A comparison of the punishment with punishments imposed in this
jurisdiction for more serious offenses, and if among them are found more serious crimes
punished less severely than the offense in question the challenged penalty to that extent is
suspect; and
"'(3) A comparison of the penalty with punishments in other jurisdictions for the
same offense.'" Mossman, 294 Kan. at 908 (quoting Freeman, 223 Kan. at 367).

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No one factor is individually controlling and "'consideration should be given to
each prong of the test,'" but one factor may "'weigh so heavily that it directs the final
conclusion.'" 294 Kan. at 908 (quoting State v. Ortega-Cadelan, 287 Kan. 157, 161, 194
P.3d 1195 [2018]). When considering proportionality, "'the factual aspects . . . are a
necessary part of the overall analysis.'" 294 Kan. at 908 (quoting Ortega-Cadelan, 287
Kan. at 161).

The district court's findings are insufficient for appellate review.

Kansas courts have noted that the first Freeman factor is "inherently factual"
because it requires examining "the facts of the crime and the particular characteristics of
the defendant." Ortega-Cadelan, 287 Kan. at 161. The second and third Freeman factors,
however, are "legal determinations." 287 Kan. at 161. Zapata argues the district court
made no findings required by Freeman in support of its decision and therefore that the
decision must be reversed and the case remanded so the court can make the required
findings. We agree.

In rendering its decision, the district court briefly discussed each of the Freeman
factors but did not make any specific factual findings. The court said it had considered all
the factors and "[didn't] believe any of them are compelling to the point that this Court is
willing to order—enter such an order [that lifetime postrelease supervision was
unconstitutional as applied to Zapata]." After the hearing, Zapata filed a motion
requesting additional factual findings under K.S.A. 2018 Supp. 60-252 and Kansas
Supreme Court Rule 165 (2019 Kan. S. Ct. R. 221). The court complied with this request
but again failed to set out any factual findings related to the Freeman factors. Instead, the
court recited the procedural history of the case as it related to correcting the illegal
sentence and found: "The court considers that defendant's motion that the lifetime post-
release supervision is unconstitutional under the facts of this case and finds that the same
is not unconstitutional under the facts of the case."
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In his brief, Zapata relies heavily on Riffe, 308 Kan. at 111-12, in which the
Kansas Supreme Court ultimately held the district court's failure to make sufficient
factual findings on the first Freeman factor warranted a reversal and remand for the
district court to use the "proper legal standard." On remand, the district court determined
without holding an evidentiary hearing that all of the Freeman factors weighed against
Riffe based on the evidence available in the record. Another panel of our court affirmed
that decision. State v. Riffe, No. 120,667, 2019 WL 6333986, at *4-5 (Kan. App. 2019)
(unpublished opinion), petition for rev. filed December 23, 2019.

Unlike other instances, where the Kansas Supreme Court has reviewed cases in
which a court failed to address one of the Freeman factors or has made at least some
factual findings, the district court here made no factual findings to support its decision.
See Riffe, 308 Kan. at 111-12 (reversing and remanding decision of district court which
did not make necessary factual findings to support first Freeman factor); State v. Rogers,
297 Kan. 83, 90-91, 298 P.3d 325 (2013) (affirming decision which made factual
findings based on defendant's presentence investigation report when defendant provided
no evidence of his own); State v. Baber, 44 Kan. App. 2d 748, 751-53, 240 P.3d 980
(2010) (affirming decision of district court which made findings of fact as to all of what
little evidence defendant had presented). With no factual findings, especially on the first
Freeman factor, this court cannot conduct an adequate review of the district court's
decision.

Indeed, as Zapata notes, when a district court fails to consider all three Freeman
factors and does not make findings to support its decision, the Kansas Supreme Court has
held the decision must be reversed. See Riffe, 308 Kan. at 112. As in Riffe, we must direct
the district court upon remand to look to the record or conduct an evidentiary hearing, at
its discretion, to decide whether lifetime postrelease supervision is constitutional as
applied here. In making that decision, the district court must make new and complete
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findings that adhere to the three Freeman factors and that are based on the evidence
presented by the parties.

Zapata's sentence does not violate the constitutional provisions of Apprendi.

Finally, Zapata argues for the first time on appeal that his new sentence is
unconstitutional under Apprendi because a jury did not make a determination that he was
18 or older and he did not knowingly and voluntarily waive his right to a jury trial on that
issue. Whether a district court violates a defendant's constitutional rights at sentencing as
described under Apprendi raises a question of law subject to unlimited review. State v.
Dickey, 301 Kan. 1018, 1036, 350 P.3d 1054 (2015).

Here, Zapata properly asserts that this court should hear his claim for the first time
on appeal because it is purely a legal question based on undisputed facts. We agree.

In 2003, our Supreme Court found in State v. Walker, 275 Kan. 46, 51, 60 P.3d
937 (2003), that a plea of guilty to a statutorily defined sexually violent crime provides
the basis for an extended postrelease supervision period without resort to the type of
court-made fact-findings disapproved by Apprendi and State v. Gould, 271 Kan. 394, 23
P.3d 801 (2001). This is still good law and has not been overruled or addressed by our
Supreme Court since 2003. We are duty bound to follow Kansas Supreme Court
precedent, absent some indication the Supreme Court is departing from its previous
position. Majors v. Hillebrand, 51 Kan. App. 2d 625, 629-30, 349 P.3d 1283 (2015).

But Zapata correctly points out that the statute has changed since Walker. Now the
potential period for postrelease supervision is not for a term of life for all persons but
only for those 18 or over. This creates, in his opinion, a sentencing discrepancy that
requires a jury determination. Because Zapata did not have this factor determined by a
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jury—or even specifically noted by the judge—and he did not waive his right to a jury
trial, the sentence must be stricken as being in violation of Apprendi.

A different panel of this court considered the same issue in State v. Cook, No.
119,715, 2019 WL 3756188, at *2 (Kan. App. 2019) (unpublished opinion), petition for
rev. filed September 9, 2019.

"[Cook's] argument ignores some fundamental points of law. The '"statutory
maximum" for Apprendi purposes is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or admitted by the defendant.' Blakely
v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Then, in
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the
United States Supreme Court recognized an exception to the Apprendi rule when the
defendant admits a fact. 543 U.S. at 244. We have admissions by Cook that lead us to
conclude that there is no Apprendi violation here." 2019 WL 3756188, at *2.

We find this persuasive. Zapata's age was not an element of his conviction for
aggravated sexual battery. K.S.A. 2018 Supp. 21-5505(b). He pleaded no contest to
aggravated sexual battery, and there was no requirement that the judge make any finding
concerning his age related to his conviction. As part of that plea, he admitted he was 22
years old, making him 21 years old at the time of the offense. The record clearly
establishes that he was over the age of 18 when he committed his crimes. We find that
there was no violation of Apprendi here.

Affirmed in part, reversed in part, and remanded for findings of fact and
conclusions of law regarding Zapata's claim that the statutory lifetime postrelease
supervision requirement is unconstitutional as applied to him.