State v. Rocheleau
State v. Rocheleau
Opinion of the Court
**762Alfred Rocheleau pleaded guilty to aggravated indecent solicitation of a child. The district court sentenced him to 32 months' imprisonment and ordered lifetime registration under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Rocheleau appealed, arguing lifetime registration violated the Ex Post Facto Clause of the United States Constitution because it exceeded the registration period applicable at the time of his crime. A Court of Appeals panel dismissed the appeal because the notice of appeal mentioned only sentencing. The panel held this notice limited its jurisdiction because KORA registration was not a part of a criminal sentence. State v. Rocheleau , No. 110243,
There is appellate jurisdiction because Rocheleau's notice of appeal should be read broadly enough to encompass his KORA challenge under the conflicting caselaw existing when he appealed. See State v. Marinelli , 307 Kan. ----,
FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 2013, Rocheleau pleaded guilty to one count of aggravated indecent solicitation for a crime occurring between December 2010 and September 2011. The ex post facto issue arises because the 2011 Legislature amended KORA to increase the registration term for Rocheleau's crime from a 10-year period to lifetime. See L. 2011, ch. 95, § 6. Rocheleau argues his registration should be governed by the law at the time of his crime.
Rocheleau filed a timely notice of appeal. It states, "Notice is hereby given by the *425Defendant, Alfred Rocheleau, by and through [counsel], his attorney, of his intention to appeal his sentence ... to the Court of Appeals of the State of Kansas." (Emphasis added.) The State seized on this specificity, asserting offender registration is **763merely an incident to sentencing-not part of sentencing. The panel agreed and dismissed the appeal. Rocheleau ,
Even so, and without explanation as to why it would proceed on the merits in a case it had just held there was no appellate jurisdiction, the panel determined Rocheleau's arguments would fail on their merits.
Rocheleau filed a petition for review, which we granted as to the KORA-related issues, specifically: jurisdiction and the ex post facto challenge.
JURISDICTION
In Marinelli , this court held KORA challenges may be appealed as a matter of right under K.S.A. 2017 Supp. 22-3602(a). 307 Kan. at ----, slip op. at 25-26. But that does not resolve the notice of appeal problem arising from Rocheleau's description that he was appealing "his sentence." Marinelli further held KORA registration is not part of a criminal sentence. 307 Kan. at ----, slip op. at 24. We must consider whether Rocheleau's notice of appeal was fatally flawed.
Standard of Review
Appellate courts exercise unlimited review over jurisdictional issues. Kaelter v. Sokol ,
Discussion
The right to appeal is purely statutory and not a right contained in the United States or Kansas Constitutions. State v. Ehrlich ,
**764K.S.A. 2017 Supp. 22-3608(c) (time for appeal from district court's judgment in criminal cases).
K.S.A. 2017 Supp. 60-2103(b) states, "The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from , and shall name the appellate court to which the appeal is taken." (Emphasis added.) Kansas appellate courts have power to entertain an appeal only if it is brought within the time limitations and manner prescribed by the applicable statute. If the record reveals jurisdiction does not exist, the appeal must be dismissed. Ehrlich ,
" '[J]urisdiction in any action on appeal is dependent upon strict compliance with the statutes.' " State v. Boyd ,
Our question is whether there is a valid dispute about Rocheleau's compliance with K.S.A. 2017 Supp. 60-2103(b) based on his specificity about sentencing in the notice of appeal. If so, this court should construe the applicable statute liberally. See K.S.A. 22-2103 (requiring Kansas courts to construe the code of criminal procedure "to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay"); K.S.A. 2017 Supp. 60-102 ("The provisions of this act shall be liberally construed, administered and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding."). The *426State makes no claim it was misled, surprised, or prejudiced by Rocheleau's notice of appeal.
Until Marinelli resolved the disagreement, the Court of Appeals was split on whether KORA registration was part of a criminal sentence. Marinelli , 307 Kan. at ----, slip op. at 15. Compare State v. Simmons,
Marinelli simply held KORA registration challenges could properly be raised in direct appeals from criminal prosecutions under K.S.A. 2017 Supp. 22-3602(a). 307 Kan. at ----, slip op. at 25-26. It did not address the contents of Marinelli's notice of appeal other than to note he challenged "all adverse rulings of the court...." 307 Kan. at ----, slip op. at 7.
In Rocheleau's case, the panel relied on Simmons . Rocheleau ,
We hold Rocheleau's notice of appeal was sufficient to trigger appellate jurisdiction given the contrary caselaw. Marinelli now resolves that controversy, so from this date forward warning is afforded to future litigants that KORA appeals should not be shown as only a sentencing challenge.
EX POST FACTO CHALLENGE
Moving to the merits, Rocheleau concedes his KORA claim was raised for the first time on appeal. It involves a legal question-whether the changes to offender registration requirements **766implemented after Rocheleau had committed his crime are a punishment, rendering their retroactive application the Ex Post Facto Clause's violation.
Rocheleau is a sex offender, and his issue is controlled by State v. Petersen-Beard ,
Stegall, J., not participating.
Michael J. Malone, Senior Judge, assigned.
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 110,243 vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20-2616.
Concurring Opinion
*427I adopt my concurring opinion in State v. Watkins ,
Dissenting Opinion
Consistent with my votes in State v. Buser ,
Rosen and Johnson, JJ., join in the foregoing dissenting opinion.
Concurring in Part
I agree that there is jurisdiction to hear this appeal, but I disagree with the majority's determination that registration is not part of the criminal sentence. See State v. Marinelli , 307 Kan. ----,
Beier and Rosen, JJ., join in the foregoing concurring and dissenting opinion.
Reference
- Full Case Name
- STATE of Kansas, Appellee, v. Alfred ROCHELEAU, Appellant.
- Cited By
- 12 cases
- Status
- Published