State v. Kewish

NOT DESIGNATED FOR PUBLICATION

No. 121,793

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DAVID ALAN KEWISH II,
Appellant.

MEMORANDUM OPINION

Appeal from Kingman District Court; FRANCIS E. MEISENHEIMER, judge. Opinion filed
September 24, 2021. Affirmed.

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

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before BRUNS, P.J., GARDNER and CLINE, JJ.

PER CURIAM: David Alan Kewish II pled no contest to 3 out of 10 charged counts
of sexual exploitation of a child. The district court imposed lifetime postrelease
supervision, lifetime registration under the Kansas Offender Registration Act, and a
presumptive prison sentence under the Kansas Sentencing Guidelines Act. Kewish
appeals each of these aspects of his sentence, arguing (1) the court violated Apprendi by
engaging in judicial fact-finding to determine his age and impose lifetime postrelease
supervision, (2) the court improperly ordered him to register as a sex offender under
KORA for the rest of his life, and (3) the court violated his right to a jury trial under

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section 5 of the Kansas Constitution Bill of Rights by making judicial findings of
Kewish's prior convictions to establish his sentence. We find no error and affirm.

FACTS

The State charged Kewish with 10 counts of sexual exploitation of a child in
violation of K.S.A. 2018 Supp. 21-5510(a)(2), a severity level 5 person felony. Each
count involved possession of child pornography in August 2018. Kewish signed an
acknowledgment of plea bargain and rights and entry of plea (plea agreement). He pled
no contest to counts 1, 2, and 3 of the complaint and acknowledged that by pleading no
contest, he understood he was waiving certain legal rights, including his right to a jury
trial. The plea agreement included Kewish's current age, specified the pleas required
lifetime registration under KORA, and noted Kewish had received notice of registration
duties. The plea agreement did not discuss postrelease supervision, but it provided:

"I further understand from my discussions with my attorney, and have been advised by
the Court, that this Court may impose against me any or all of the maximum penalties . . .
and may take whatever other action the Court may deem appropriate and permitted by
law to ensure the public safety if I choose to enter pleas of . . . 'no contest' . . . pursuant to
the plea bargain."

A few days after Kewish signed the plea agreement, the district court held a
hearing, Kewish waived his right to both a preliminary hearing and a formal arraignment,
and asked to move straight to the plea and then schedule sentencing. The judge asked
Kewish if he understood the charges against him and possible penalties. Kewish said he
did. The judge then discussed Kewish's right to a jury trial with him, stating, "If you
plead no contest, you'll be giving up your right to trial. The State is not going to have to
present any evidence. There's not going to be a jury and I'm going to find you guilty
based upon your no contest plea." Kewish said he understood. The court also told Kewish
KORA required lifetime registration for the counts to which he pled.

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 Kewish pled no contest to counts 1, 2, and 3, as set forth in the complaint. The
district court found Kewish guilty of these three counts and dismissed the remaining
counts. The judge then asked Kewish if he had reviewed the notice of duty to register and
if the personal information set forth in it was accurate. Kewish said he had and confirmed
the accuracy of the personal information. Kewish signed the notice of duty to register in
front of the court, which listed his date of birth. The court ordered a presentence
investigation (PSI) report and set the matter for sentencing.

Before the sentencing hearing, Kewish filed a motion for dispositional departure,
asking the district court to place him on probation. Kewish noted that K.S.A. 2018 Supp.
21-6815(c)(1) permits the court to consider mitigating factors to determine whether
substantial or compelling reasons for departure exist and then requested such a departure
based on a forensic psychological evaluation which reported he had a low risk of
reoffending. This evaluation listed Kewish's age and his date of birth.

At the sentencing hearing, the district court found Kewish's criminal history score
was E for his primary offense and I for the other two offenses, based on the PSI report.
The PSI report also listed Kewish's age and date of birth and noted both offender
registration and lifetime postrelease supervision under K.S.A. 2018 Supp. 22-
3717(d)(1)(G)(i) were required for each offense. Both parties confirmed no disagreement
with the court's findings based on the PSI report.

The district court denied Kewish's dispositional departure request, imposed
sentences for each of the three counts, and ordered the sentences to run concurrently for a
controlling sentence of 46 months. The court noted all three offenses carried lifetime
postrelease supervision, which it ordered. The court also notified Kewish of his duty to
register under KORA, due to the nature of his convictions.

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 ANALYSIS

Kewish raises new legal challenges to the district court's imposition of lifetime
postrelease supervision and lifetime KORA registration, as well as the court's
determination of his criminal history for purpose of enhancing his sentence. Generally,
issues not raised before the district court cannot be raised for the first time on appeal. See
State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). Even so, we have recognized
limited exceptions to this general rule. Kewish argues two of these exceptions apply here:
(1) the newly asserted theory involves only a question of law arising on proved or
admitted facts and is finally determinative of the case and (2) consideration of the theory
is necessary to serve the ends of justice or to prevent denial of fundamental rights. See
309 Kan. at 995. While Kewish is correct that all his challenges involve purely questions
of law on proved or admitted facts, none of them are finally determinative of the case.
Thus, the first exception does not apply. That said, since each of his challenges involves
the denial of a fundamental right, we will exercise our discretion to consider Kewish's
arguments under this exception.

The district court did not violate Apprendi when it imposed lifetime postrelease
supervision based on Kewish's age.

Before we address the merits of Kewish's argument, we must address a
jurisdictional challenge raised by the State. The State argues the plea agreement deprives
this court of jurisdiction because K.S.A. 2018 Supp. 21-6820(c)(2) does not allow us to
review a sentence resulting from an agreement between the State and the defendant.
Kewish correctly responds by noting he did not agree to lifetime postrelease supervision
in his plea agreement. Since the plea agreement did not discuss the postrelease
supervision portion of his sentence, K.S.A. 2018 Supp. 21-6820(c)(2) does not apply. The
State also incorrectly argues we lack jurisdiction under K.S.A. 2018 Supp. 22-3602(a),
but that statute also does not apply, as section (f) provides that K.S.A. 21-6820 governs

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this appeal. See K.S.A. 2018 Supp. 22-3602(f) (appeal relating to sentence imposed
under revised KSGA governed by K.S.A. 21-6820).

Now, as to the merits of Kewish's argument, we note he was sentenced under
K.S.A. 2018 Supp. 22-3717. The subsections relevant to Kewish's argument include:

"(d)(1) Persons sentenced to crimes, other than off-grid crimes, committed on or
after July 1, 1993, or persons subject to paragraph (G), will not be eligible for parole, but
will be released to a mandatory period of postrelease supervision upon completion of the
prison portion of their sentence as follows:
....
"(B) Except as provided in subparagraphs (D) and (E), persons sentenced for
nondrug severity levels 5 and 6 crimes . . . must serve 24 months on postrelease
supervision.
....
"(G)(i) Except as provided in subsection (u), 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, and who are released from prison, shall be released to a mandatory
period of postrelease supervision for the duration of the person's natural life."
(ii) Persons sentenced to imprisonment for a sexually violent crime committed on
or after the effective date of this act, when the offender was under 18 years of age, and
who are released from prison, shall be released to a mandatory period of postrelease
supervision for 60 months, plus the amount of good time and program credit earned and
retained pursuant to K.S.A. 21-4722, prior to its repeal, or K.S.A. 2018 Supp. 21-6821,
and amendments thereto." K.S.A. 2018 Supp. 22-3717(d)(1)(B), (G)(i)-(ii).

Since the district court found Kewish is over 18 years old, it imposed lifetime
postrelease supervision as mandated by K.S.A. 2018 Supp. 22-3717(d)(1)(G)(i).

Kewish argues the district court engaged in improper judicial fact-finding to
enhance his sentence, which he claims violated Apprendi v. New Jersey, 530 U.S. 466,
490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Apprendi provides that "[o]ther than the

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fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490. Kewish contends the default postrelease supervision
term for a severity level 5 offense such as his is 24 months under K.S.A. 2018 Supp. 22-
3717(d)(1)(B). He asserts the district court violated Apprendi by making the factual
finding that he was at least 18 years old, because the court used this finding to increase
his postrelease supervision from 24 months to lifetime postrelease supervision under
K.S.A. 2018 Supp. 22-3717(d)(1)(G)(i). Kewish argues the court had to submit the
question of his age to a jury because he did not waive his Apprendi right to have a jury
determine his age.

Whether a district court violated a defendant's constitutional rights as described
under Apprendi at sentencing raises a question of law subject to unlimited review. State v.
Huey, 306 Kan. 1005, 1009, 399 P.3d 211 (2017). To the extent that the analysis requires
interpretation of K.S.A. 2018 Supp. 22-3717, the interpretation of a statute is a question
of law over which we have unlimited review. See Nauheim v. City of Topeka, 309 Kan.
145, 149, 432 P.3d 647 (2019).

A panel of this court has dispatched the same challenge Kewish raises several
times. See State v. Schmeal, No. 121,221, 2020 WL 3885631, at *8-9 (Kan. App.)
(unpublished opinion), rev. denied 312 Kan. 900 (2020); see State v. Haynes, No.
120,533, 2020 WL 741458, at *2-3 (Kan. App.) (unpublished opinion), rev. denied 312
Kan. 896 (2020); State v. Zapata, No. 120,529, 2020 WL 741486, at *8-9 (Kan. App.),
rev. denied 312 Kan. 901 (2020); see State v. Cook, No. 119,715, 2019 WL 3756188, at
*1-3 (Kan. App. 2019) (unpublished opinion), rev. denied 312 Kan. 895 (2020). Each
rejection relied on the same reasoning, first announced in Cook:

"[The defendant] ignores some fundamental points of law. The '"statutory
maximum" for Apprendi purposes is the maximum sentence a judge may impose solely

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 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 [the defendant] that
lead us to conclude that there is no Apprendi violation here." Cook, 2019 WL 3756188, at
*2.

Kewish spends considerable time in his brief arguing the importance of
establishing the offender's age before imposing lifetime postrelease supervision. That is
beside the point. What he fails to appreciate is his age was established because he
admitted it. Other panels of this court have found the following equated to a defendant's
admission of his age, causing no Apprendi violation: admitting their age in their no
contest plea agreement, confirming their age at the plea hearing, and admitting their age
to a therapist for a forensic interview and that age being reflected in the therapist's
corresponding report. See Schmeal, 2020 WL 3885631, at *9; see Haynes, 2020 WL
741458, at *3; see Cook, 2019 WL 3756188, at *2. Kewish made all the same
admissions: He admitted his age in his no contest plea, he confirmed the accuracy of the
personal information (which included his age) in his notice to register, and the forensic
report he submitted to the district court as part of his motion for a dispositional departure
included both his current age and date of birth. So, just like in the cases referenced above,
the district court did not violate Apprendi.

The district court did not err in ordering lifetime registration under KORA.

The district court sentenced Kewish to lifetime KORA registration under K.S.A.
2018 Supp. 22-4906(d)(7) because he was convicted of sexual exploitation of a child
victim less than 14 years old. Kewish argues the court erred in ordering lifetime
registration under KORA for two reasons: (1) neither the no contest plea nor the factual
basis the court relied on established that any of the individuals in the images and video he

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possessed were less than 14 years old, as required for lifetime offender registration and
(2) the date for determining the victim's age must be the date that the offenses took place
(August 2018) rather than the date the images and video were captured. We have
jurisdiction to consider a direct appeal by a defendant who pled no contest and challenges
the district court's order to register under KORA. See State v. Marinelli, 307 Kan. 768,
788, 415 P.3d 405 (2018).

In Marinelli, in which the defendant also pled no contest, the Kansas Supreme
Court asked these questions to determine whether the defendant was subject to the
provision the district court imposed registration under: (1) whether the district court
made the necessary factual finding and (2) whether the record supported the district
court's finding. The court found that the district court made the necessary factual finding
by checking a box in the journal entry labeled "Yes" next to the question asking whether
the offender committed the crime with a deadly weapon. 307 Kan. at 788-89. The court
also found that the record supported that finding because the charge specified the deadly
weapon that was used in committing the crime was a knife, the State explained that
during the plea hearing, and the defense agreed with the State's explanation of the facts.
The court emphasized that it was not looking to whether the fact was an element of the
convicted crime, but whether the uncontroverted record showed that the district court's
finding was supported. 307 Kan. at 789.

As in Marinelli, the district court here made the necessary factual finding in the
journal entry by marking the box "Sexual Exploitation of a Child—K.S.A. 21-5510, if the
victim is less than 14 years of age" as the reason Kewish is subject to lifetime
registration. See 307 Kan. at 788-89. The record also supported the district court's
findings. Despite Kewish's arguments that neither the plea nor the State's factual basis
provided the victim's age, the Marinelli court focused on whether the record was
uncontroverted and showed that the district court's finding was supported. Relevant here,
the Marinelli court also considered the charge. 307 Kan. at 789.

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 Kewish pled no contest to the charges "set forth" in counts 1, 2, and 3 of the
complaint. The complaint specified the images and videos on which each count was
based, and the supporting affidavit described the images and videos by noting the age of
each victim depicted—all of which were under 14 years old. When setting forth the
factual basis for the charges, the State cited each image or video listed in those counts.
The PSI report also listed the victims' ages in counts 1, 2, and 3, respectively, as under 3
years old, under 13 years old, and under 13 years old. At the sentencing hearing,
Kewish's counsel said she had reviewed the PSI report, but neither she nor Kewish
disputed that these were the ages of the children depicted.

Nor was the district court's imposition of lifetime KORA registration a surprise to
Kewish. In Marinelli, the plea agreement did not mention KORA registration and the
district court did not address KORA registration when accepting Marinelli's plea.
Kewish's plea agreement specifically noted his pleas require lifetime registration. And
when summarizing the plea agreement, the district court reminded Kewish that his pleas
required lifetime registration and confirmed the court's summary of the agreement
reflected Kewish's understanding. In sum, the record was uncontroverted and supports the
district court's finding that the victims were less than 14 years old, thus justifying lifetime
KORA registration.

Kewish's second argument relies on the language in K.S.A. 2018 Supp. 22-
4906(d)(7), which mandates lifetime registration for any offender convicted of sexual
exploitation of a child "if the victim is less than 14 years of age." According to Kewish,
this means the victim had to be less than 14 years old when Kewish committed the
offense. He claims no evidence showed that the victims in the images were less than 14
years old in August 2018 when he possessed the images.

Another panel of this court has already rebuffed the same argument Kewish
makes. See Haynes, 2020 WL 741458, at *3-4. Haynes interpreted K.S.A. 2017 Supp.

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22-4906(d)(7) in relation to the same crime charged here, sexual exploitation of a child in
violation of K.S.A. 2017 Supp. 21-5510(a)(2). That panel found no error in the district
court using the victims' ages on the date the images were created rather than on the date
Haynes possessed the images. The court found no legal support for Haynes' argument, his
interpretation was unreasonable, and determining the victim's age at the time of the
offense would be impossible to administer. 2020 WL 741458, at *4. In finding Hayne's
interpretation unreasonable, the court explained:

"Both of the KORA provisions cited above specifically refer to K.S.A. 2017
Supp. 21-5510, which, relevant here, defines sexual exploitation of a child as 'possessing
any visual depiction of a child under 18 years of age shown or heard engaging in sexually
explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient
interest of the offender or any other person.' K.S.A. 2017 Supp. 21-5510(a)(2). Implicit
within the definition of the crime is that the victim is the child who is visually depicted at
the time the depiction is created. Possessing the depiction of a child engaged in sexually
explicit conduct is the criminal act. Adopting Haynes' position and using the age of the
victim on the date the offender is charged with possession necessarily begs the question
of whether a crime is even committed under K.S.A. 2017 Supp. 21-5510, which sets forth
the elements of sexual exploitation of a child, when there is no child victim. This is an
absurd result. To the contrary, the fact that the child victim who is shown in the visual
depiction possessed by the offender reached the age of majority at the time of the offense
is a fact completely immaterial to proving the elements of the underlying crime and, in
turn, completely immaterial to deciding the age of the child victim for purposes of
imposing the applicable period of offender registration." 2020 WL 741458, at *4.

The only authority Kewish offers as support for his argument is Farris v. McCune,
259 Kan. 181, 911 P.2d 177 (1996). But Farris does not discuss KORA at all, much less
K.S.A. 22-4906(d)(7). Haynes, which specifically interprets this subsection of KORA in
relation to the same crime Kewish committed here, while not controlling, is far more
persuasive. Kewish did not possess images or videos of the child victims at their current

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ages in August 2018; he possessed images and a video of them as children under the age
of 14.

We reject Kewish's arguments for the reasons stated in Haynes and find the district
court did not err in using the victims' ages on the date the images and video were
captured rather than on the date Kewish committed the offenses.

The KSGA does not violate Kewish's right to a jury trial under section 5 of the Kansas
Constitution Bill of Rights.

Kewish argues the KSGA violates his right to a jury trial under section 5 of the
Kansas Constitution Bill of Rights because it allows the court to make findings of a
defendant's criminal history for imposing a sentence. As noted above, we consider this
argument under the third exception to the general rule that issues cannot be newly raised
on appeal, which allows consideration to prevent denial of a fundamental right. Johnson,
309 Kan. at 995.

While the State argues we cannot consider his argument since he waived his right
to a jury trial in his plea agreement, it offers no authority to support its contention. On the
contrary, the Kansas Supreme Court has addressed a jury trial waiver issue for the first
time on appeal relying on the third exception. See State v. Rizo, 304 Kan. 974, 978-79,
377 P.3d 419 (2016). The State also argues we lack jurisdiction to consider this claim
because K.S.A. 2020 Supp. 21-6820(c)(1) provides that an appellate court shall not
review an appeal of a sentence for a felony conviction of a presumptive sentence in the
KSGA. But there is an exception to this jurisdictional bar for cases in which the
defendant is challenging the constitutionality of the statutory sentencing scheme rather
than the defendant's individual sentence. State v. Albano, 313 Kan. 638, 640, 487 P.3d
750 (2021). Because Kewish is challenging the constitutionality of KSGA, jurisdiction is
proper.

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 Kewish asserts that Kansas juries at common law had to find any fact that
increased the penalty for a crime beyond a reasonable doubt. He claims this means the
KSGA, which allows the district court to make judicial findings of criminal history for
sentencing purposes, is unconstitutional because it violates section 5 of the Kansas
Constitution Bill of Rights. The State points to State v. Albano, 58 Kan. App. 2d 117, Syl.
¶ 4, 464 P.3d 332 (2020), which rejected the same argument Kewish makes. Kewish
argues the Court of Appeals wrongly decided this issue, but, after submission of the
briefs, the Kansas Supreme Court affirmed the Court of Appeals decision. See Albano,
313 Kan. at 656-57.

Section 5, which mandates that "the right of trial by jury shall be inviolate,"
preserves the jury trial right as it historically existed at common law when the Kansas
Constitution was created. State v. Love, 305 Kan. 716, 734, 387 P.3d 820 (2017).
Generally, juries in Kansas decide the defendant's guilt, and the sentencing court
determines the defendant's punishment. Under the KSGA, when prior convictions are
considered in determining punishment, the issue is within the power and authority of the
district court. Albano, 313 Kan. at 657.

Albano made very similar arguments to the ones Kewish makes here. He argued
that Kansas common law used to require the State to prove to the jury any penalty-
increasing facts, beyond a reasonable doubt. Like Kewish, Albano also argued that
Justice Clarence Thomas' concurrence in Apprendi v. New Jersey, 530 U.S. 466, 499, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), citing foreign state court decisions in the early
1800s, supports broadening the rule to include sentence-enhancing prior convictions.
Albano, 313 Kan. at 651-52.

The Albano court rejected Albano's reliance on Justice Thomas' concurrence and
held the foreign state court decisions he referenced do not reflect Kansas common law.
The Albano court examined Kansas common law, noting that, in Kansas, juries have

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traditionally determined guilt while the sentencing court determined sentence. Albano
held that section 5 of the Kansas Constitution Bill of Rights does not guarantee the right
to have a jury determine the existence of sentence-enhancing prior convictions under the
KSGA. Albano, 313 Kan. at 656-57.

Because determining criminal history to impose sentence falls within the exclusive
power of the district court, the KSGA's method of determining criminal history does not
implicate a defendant's right to trial by jury under section 5. Albano, 313 Kan. at 651.
("In turn, Love instructs that these well-established, traditional functions of the jury also
define the scope of the jury trial right in Kansas, and legislative action that does not
impair a traditional function of the jury does not violate section 5.").

Given that we see no indication of impending departure from Albano's holding, we
will follow the Kansas Supreme Court's lead and reject Kewish's arguments on the same
basis. See State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017) (noting Kansas
Court of Appeals is duty bound to follow Kansas Supreme Court precedent unless some
indication court is departing from previous position).

Affirmed.

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