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Kansas Supreme Court: Deadly Weapon-Use Finding Prerequisite to Imposing Violent Offender Registration Requirement

by Matt Clarke

On April 13, 2018, the Supreme Court of Kansas held that, absent a finding by a trial court that a defendant used a deadly weapon in a person felony, the trial court could not require the defendant to register as a violent offender pursuant to the Kansas Offender Registration Act (“KORA”), K.S.A. 22-4901, et seq. It further held that the absence of such a finding was not a sentencing error that could be corrected on remand. It was not an error at all.

Aided by Samuel D. Shirer of the Kansas Appellate Defender Office, state prisoner Donald Gilkes appealed his obligation to register as an offender under the KORA. He had been convicted by a jury of aggravated assault related to his using a lock-blade knife to commit an assault. The charging instrument and jury instructions required the jury to find that he used a deadly weapon in order to convict him. Before pronouncing sentence, the trial judge told Gilkes that the offense requires registration.

In its Kansas Sentencing Guidelines Journal Entry of Judgment for this case, the trial court marked “no” next to the question: “Did offender, as determined by the court, commit the current crime with a deadly weapon?” The journal entry also did not indicate that the court had informed the defendant of his duty to register as an offender pursuant to the KORA and did not have the required “Offender Registration Supplement” attached.

A panel of the Court of Appeals affirmed Giles’ conviction and sentence but remanded the case to the trial court for correction of the journal entry so that it would have the missing registration requirements. Giles petitioned the Supreme Court of Kansas for review.

The Supreme Court granted review of the KORA claims. It noted that “KORA is not part of a defendant’s sentence.” Therefore, there was no question of whether an illegal sentence had been imposed. Rather, the only question was whether Giles was a “violent offender” subject to KORA registration. This, the Court held, was a question of law subject to de novo review.

The Court noted that KORA defined a person as a “violent offender” who is subject to registration if that person 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.” In this case, the jury made a deadly weapon finding and use of a deadly weapon was an element of the crime of conviction, but the trial court did not make a finding on the record that Gilkes used a deadly weapon to commit the offense.

In State v. Marinelli, 415 P.3d 405 (Kan. 2018) (decided the same day as Gilkes), the Supreme Court held that the requisite finding necessary to support the registration requirement could be made in the Journal Entry of Judgment. In this case, the journal contained no such finding. Thus, the Court held that Gilkes was not an “offender” as defined by K.S.A. 2017 Supp. 22-4092(e)(2). Therefore, he was not required to register as an “offender.”

The Court also held that the Court of Appeals “was without authority to remand the case to the district court to make the required on-the-record finding” because the absence of such a finding on the record is not a sentencing error. It is not an error at all.

Accordingly, the Court vacated the order for Gilkes to register as a violent offender. See: State v. Gilkes, 415 P.3d 427 (Kan. 2018). 

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