State v. Scuderi

`IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 107,114
107,115

STATE OF KANSAS,
Appellant/Cross-appellee,

v.

WILLIE J. SCUDERI,
Appellee/Cross-appellant.

SYLLABUS BY THE COURT

1.
The legislature intended the Kansas Offender Registration Act (KORA) to be civil
and nonpunitive for all classes of offenders.

2.
Because the legislature intended KORA to be a regulatory scheme that is civil and
nonpunitive, only the clearest proof will suffice to override legislative intent and
transform what has been denominated a civil remedy into a criminal penalty.

3.
Charging documents do not bestow or confer subject matter jurisdiction on state
courts to adjudicate criminal cases; the Kansas Constitution does.

4.
Charging document sufficiency is a question of law subject to de novo review.

1
5.
Charging documents need only show that a case has been filed in the correct court,
e.g., the district court rather than municipal court; show that the court has territorial
jurisdiction over the crime alleged; and allege facts that, if proved beyond a reasonable
doubt, would constitute a Kansas crime committed by the defendant.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 19, 2013.
Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed October 27, 2017. Judgment of the
Court of Appeals affirming the district court is affirmed on the issues subject to review. Judgment of the
district court is affirmed.

Keith E. Schroeder, district attorney, Stephen D. Maxwell, senior assistant district attorney, and
Derek Schmidt, attorney general, were on the briefs for appellant/cross-appellee.

Patrick H. Dunn, of Kansas Appellate Defender Office, was on the briefs for appellee/cross-
appellant.

The opinion of the court was delivered by

BILES, J.: Willie J. Scuderi seeks review of the decision by a panel of the Court of
Appeals affirming two convictions and sentences for failure to register as required by the
Kansas Offender Registration Act, K.S.A. 22-4901 et seq. He argues the panel erred
because (1) the registration requirements are ex post facto punishment for a drug offense
he committed before registration was required for such offenses; (2) his sentences were
imposed in violation of the Sixth and Fourteenth Amendments to the United States
Constitution because they were calculated using his criminal history, which was not
submitted to a jury and proved beyond a reasonable doubt; and (3) the complaint
initiating one of the convictions was deficient because it failed to allege he resided in the
county where the State alleged he failed to register. We affirm.

2
 We hold that the panel properly rejected Scuderi's ex post facto and criminal
history score claims. See State v. Shaylor, 306 Kan. 1049, 1051-52, 400 P.3d 177 (2017)
(holding defendant failed to demonstrate retroactive imposition of registration
requirements for drug offense was punishment as required to prevail on ex post facto
claim); State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 (2002) (holding Sixth and
Fourteenth Amendments do not require jury findings on criminal history used to calculate
sentence). We also affirm the panel's outcome on the defective complaint issue, although
we do so using the analysis in State v. Sayler, 306 Kan. ___, ___ P.3d ___ (No. 110,048,
this day decided), slip op. at 6-7 (holding charging documents do not bestow or confer
subject matter jurisdiction on state courts to adjudicate criminal cases and further holding
similarly worded charging document alleged facts that if proved beyond a reasonable
doubt would constitute KORA violation).

FACTUAL AND PROCEDURAL BACKGROUND

In 2002, Scuderi was convicted of possession of methamphetamine with intent to
sell, a violation of K.S.A. 65-4161. In 2010, the State charged Scuderi in two cases with
failing to register under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq.

Scuderi moved to dismiss the complaints because the prosecutions violated the Ex
Post Facto Clause of the United States Constitution. He argued the registration
requirement, which did not exist at the time of his original offense, retroactively
increased the offense's punishment. He cited the in-person reporting requirements and the
fees associated with registration.

During arguments on the motions, Scuderi's counsel "conced[ed] that the courts
have held generally that the duty to register . . . is not punitive and not a violation of ex
post facto." But counsel contended the prior cases did not address the $20 registration

3
fee, which counsel "would consider a fine . . . ." Nor, he argued, did they consider the
change from mail to in-person registration. Scuderi presented no evidence to support his
arguments.

The district court denied the motions, reasoning that our appellate courts had
determined the registration requirements of the Kansas Offender Registration Act are not
punishment and therefore do not violate the Ex Post Facto Clause of the Constitution.
The court cited State v. Evans, 44 Kan. App. 2d 945, 242 P.3d 220 (2010).

At a consolidated jury trial, Scuderi stipulated that in "February through April
2010, [he] was a person convicted of a crime that required [him] to register in writing to
the sheriff's office in the county of his residence . . . and . . . prior to February 2010, knew
of his requirement to so register." His defense was that the State did not prove he lived in
Reno County, as necessary to trigger the requirement that he register there. The jury
convicted on both charges.

Scuderi moved to arrest judgment in one of his cases (10CR241) because the
complaint was not consistent with the relevant KORA provision. He advanced two issues
regarding the complaint: (1) the alleged violation occurred after he was released from the
county detention center, which was not an element of the offense; and (2) the complaint
was silent on the requirement that the offender must reside or be temporarily domiciled in
the county for more than 10 days. The omission, he argued, created a jurisdictional defect
under State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled by State v. Dunn, 304
Kan. 773, 375 P.3d 332 (2016). While both case numbers are in the motion's caption, the
motion itself referred only to 10CR241.

At sentencing, the court addressed Scuderi's posttrial motions on 10CR241.
Scuderi's counsel said she would stand on her motion for judgment of acquittal or new
4
trial and that she "also ask[ed] the Court to consider [the motion to] arrest judgment and
cit[ed] to the arguments contained therein and ask[ed] that the court grant that as well."
The court responded, "[W]e're dealing strictly with 10 CR 241, although, if you want to
adopt arguments in the other cases at this point, we can do that."

But before Scuderi's counsel could respond, the court solicited arguments from the
State and immediately after that ruled, "Okay. I did hear the evidence and do find the jury
as the factfinder could find the defendant guilty beyond a reasonable doubt, which they
did, based on the evidence and I will overrule the motions." The record contains no
further comment from Scuderi's counsel about the motion to arrest judgment.

After sentencing Scuderi in 10CR241, the district court turned to Scuderi's other
case (10CR400). The district court noted "a motion for judgment of acquittal or in
alternative for new trial on that also." Scuderi's counsel told the court, "Judge, again, I
adopt my previous arguments with that case." The court denied "the motion for judgment
of acquittal or for new trial."

The district court granted Scuderi's request for downward durational departures
and sentenced him to concurrent 65-month prison terms for the KORA violations. The
State appealed the sentencing departure, and Scuderi cross-appealed his convictions and
sentencing.

The State argued there were no substantial and compelling reasons to support the
durational departures. Scuderi claimed: (1) the registration requirement from which the
convictions arose violated the Ex Post Facto Clause; (2) his sentences violated Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because they
were calculated using his prior criminal history, which was not proved to a jury beyond a
reasonable doubt; and (3) the district court lacked jurisdiction to enter a judgment in the
5
10CR400—not 10CR241—because the complaint failed to charge a crime. A Court of
Appeals panel affirmed the judgments. State v. Scuderi, No. 107,114, 2013 WL 3791614,
at *10 (Kan. App. 2013) (unpublished opinion).

The panel held the retroactively imposed KORA requirement was not an ex post
facto law. It reasoned that because State v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996),
established that offender registration is not "punishment," a retroactive change in the
requirements does not violate the Ex Post Facto Clause. 2013 WL 3791614, at *6 (citing
State v. Evans, 44 Kan. App. 2d 945, 242 P.3d 220 [2010]). Moreover, it reasoned, there
is no ex post facto violation, "'[s]o long as the actual criminal violation for which the
defendant is being charged occurred after the effective date of the statute providing
punishment for the violation . . . .'" 2013 WL 3791614, at *6 (quoting State v. Armbrust,
274 Kan. 1089, Syl.¶ 3, 59 P.3d 1000 [2002]). The panel also asserted Scuderi's
stipulation that the Act applied to him "preclude[d] any complaint . . . about the
retroactive registration requirements . . ." because no relief is afforded to a party from his
or her own "strategic choice at trial [that] has adverse consequences . . . ." 2013 WL
3791615, at *6.

The panel also affirmed Scuderi's sentences. It held the Sixth and Fourteenth
Amendments to the United States Constitution, as interpreted by Apprendi, 530 U.S. 466,
did not require Scuderi's criminal history used to calculate the sentences to be submitted
to a jury and proved beyond a reasonable doubt. 2013 WL 3791614, at * 7 (citing State v.
Ivory, 273 Kan. 44, 41 P.3d 871 [2002], reaff'd by State v. Bogguess, 293 Kan. 743, 268
P.3d 481 [2012]). And it held there were substantial and compelling reasons to support
the downward durational departure. 2013 WL 3791614, at *9.

Finally, the panel rejected Scuderi's jurisdictional argument, applying the
analytical framework for reviewing defective complaint issues raised for the first time on
6
appeal as set out in Hall. The panel characterized the claim as raised for the first time on
appeal because Scuderi's appellate argument focused only on 10CR400, while his motion
to arrest judgment was advanced in 10CR241. 2013 WL 3791614, at *3.

The panel concluded K.S.A. 22-4904 required the charging document to allege
"(1) Scuderi was required to register with the Sheriff of Reno County, Kansas, having
resided or established temporary residence in Reno County for more than 10 days. . .; and
(2) Scuderi failed to register with the Sheriff of Reno County during the month of April
[2010]." 2013 WL 3791614, at *4. The panel then noted that while Scuderi argued the
complaint in 10CR400 failed to "allege the triggering element for registration . . . and . . .
that he [lived] in Reno County," he did not brief how the omission affected his case in
any of the three ways that could yield a jurisdictional defect under Hall. 2013 WL
3791614, at *4. But the panel emphasized it was not relying on Scuderi's trial court
stipulation in its ruling. 2013 WL 3791614, at *4-5.

Ultimately, the panel held the district court had jurisdiction in 10CR400. It
concluded Scuderi failed to show how the omission impaired his right to a fair trial or the
preparation of his defense because he stipulated he was aware of the registration
requirement, choosing to argue instead that he did not reside in Reno County. Moreover,
the panel concluded the record did not indicate the conviction in 10CR400 affected a
subsequent prosecution.

Scuderi petitioned for review of the panel's decision on each of the three issues he
raised in his cross-appeal. The State did not seek our review on the sentencing departure
issue. We granted review.

But while the matter was pending, we decided Dunn, which made significant
changes to the law on charging document sufficiency, the effect of deficient charging
7
documents, and appellate review of deficient charging document claims. Among these,
Dunn held charging document sufficiency does not implicate subject matter jurisdiction
of state courts in criminal cases. 304 Kan. at 811-12. In supplemental briefing, Scuderi
argued Hall must continue to apply because it was law at the time he filed his motion to
arrest judgment.

Jurisdiction is proper. K.S.A. 20-3018(b) (petition for review of Court of Appeals
decision); K.S.A. 60-2101(b) (providing Supreme Court jurisdiction over cases subject to
review under K.S.A. 20-3018).

We will address in greater detail only the ex post facto claim and the defective
complaint allegation. This court has repeatedly rejected Apprendi challenges to the use of
criminal history scores, and we need not discuss Scuderi's further. See Shaylor, 306 Kan.
at 1051; see also State v. Johnson, 304 Kan. 924, 956, 376 P.3d 70 (2016).

EX POST FACTO CHALLENGE

Scuderi argues his convictions violate the Ex Post Facto Clause of the United
States Constitution because when the legislature imposed registration requirements on
him after he committed the registrable drug offense, it retroactively increased the
punishment for that crime. This argument is foreclosed by Shaylor. See 306 Kan. at 1052.

In Shaylor, the court rejected the same ex post facto claim. The court reasoned that
the defendant must establish the KORA requirements constitute "punishment" to prevail
on the claim. 306 Kan. at 1052. But because "the legislature's intent in enacting KORA
was to create a nonpunitive civil regulatory scheme[,] . . . to overcome that intent, only
the 'clearest proof' concerning the effects of KORA on the class of drug or violent
offenders would suffice." 306 Kan. at 1052 (citing State v. Meredith, 306 Kan. 906, 911-

8
12, 399 P.3d 859 [2017]). The defendant's argument that the registration requirement was
"punishment" consisted entirely of "mention[ing], without further factual development,
only three statutory factors: (1) informing authorities of changes in domicile; (2) in-
person reporting four times each year to verify [defendant's] registration information; and
(3) paying a $20 registration fee each time [defendant] reports." 306 Kan. at 1052.

In the district court, Scuderi similarly contended without factual development that
the registration fees and in-person reporting requirements constitute punishment. His
appellate arguments identify additional facets he believes make the requirements
"punishment"— annual driver's license or identification card renewal and the offender
designation on the document. But his arguments rely on the court's now-overruled
decision in Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016), holding lifetime
registration for sex offenders was punishment, and the dissenting opinion in the decision
overruling it, State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016).

Scuderi also argues registration impacts drug offenders differently than sex
offenders by making reintegration into society more difficult. He relies on testimony
presented to the legislature when it was considering expanding the Act to include drug
offenders. But Scuderi failed to create a factual record in support of his arguments.

As we did in Shaylor, we conclude Scuderi failed to demonstrate KORA's punitive
effects override the legislature's intent that the requirements be nonpunitive. His ex post
facto claim fails because he did not demonstrate the requirements are punishment.

SUFFICIENCY OF THE CHARGING DOCUMENT

Scuderi argues the 10CR400 conviction must be reversed because the complaint
did not allege facts establishing his duty to register in Reno County. But the panel held

9
Scuderi raised the claim for the first time on appeal and therefore applied the more
burdensome of the two defective complaint tests. Although there is now only one test, we
first consider from a preservation perspective the impact of the panel's ruling that Scuderi
is challenging for the first time on appeal the complaint in 10CR400.

Standard of Review/Preservation

The panel analyzed Scuderi's sufficiency-of-the-complaint argument using the
bifurcated standard of review applicable under Kansas law at the time of its decision.
Under that standard, if a defendant raised a timely challenge to a charging document's
sufficiency in the district court, the conviction would be reversed on appeal if the
document was "'so defective that it [did] not, by any reasonable construction, charge an
offense for which the defendant [was] convicted.'" Dunn, 304 Kan. at 806 (quoting Hall,
246 Kan. at 763). But when the defendant raised the claim for the first time on appeal, the
claim would only "'be allowed'" if the defendant could establish the "'claimed defect . . .
(a) prejudiced the defendant in the preparation of his or her defense; (b) impaired in any
way defendant's ability to plead the conviction in any subsequent prosecution; or (c)
limited in any way the defendant's substantial rights to a fair trial . . . .'" 304 Kan. at 806
(quoting Hall, 246 Kan. at 765). The panel decided the issue on the latter standard.

Scuderi argues he was entitled to have his case decided under the Hall paradigm,
rather than application of Dunn. This is wrong. "[T]he general rule in Kansas is that an
overruling decision is applied retroactively to all similar cases pending as of the date of
the overruling decision, regardless of when the cause of action accrued." State v.
Waterberry, 248 Kan. 169, 172, 804 P.2d 1000 (1991) (holding Hall's new rule regarding
appellate review of sufficiency-of-information claims applied to all cases pending in state
courts—trial and appellate—at time of decision). See also State v. Mitchell, 297 Kan.
118, 124-25, 298 P.3d 349 (2013) ("The general rule . . . is that a change in the law acts

10
prospectively, applying only 'to all cases, state or federal, pending on direct review or not
yet final.'").

Scuderi argues his bid to apply Hall is bolstered by Hall's declaration that the new
rule in that case would apply only prospectively to prosecutions initiated after the date of
the opinion. But Waterberry modified that portion of Hall and held the rule would apply
in all cases pending when Hall was filed. Scuderi offers no other authority for why Dunn
should not apply. Dunn applies, which changes the standard of review and preservation
questions.

We must now address the effect of the panel's ruling that Scuderi is challenging
the 10CR400 complaint for the first time on appeal. Under Dunn, whether the complaint
was defective is a question of law subject to de novo review. 304 Kan. at 819.

"Charging documents do not bestow or confer subject matter jurisdiction on state courts
to adjudicate criminal cases; the Kansas Constitution does. Charging documents only
need to show that a case has been filed in the correct court . . . ; show that the court has
territorial jurisdiction over the crime alleged; and allege facts that, if proved beyond a
reasonable doubt, would constitute a Kansas crime committed by the defendant." 304
Kan. at 811.

Ordinarily a party wanting to pursue an issue on appeal must have preserved that
issue in the court below. 304 Kan. at 817. If not, the defendant must demonstrate an
exception to the usual rule applies. 304 Kan. at 818-19. "The very purpose of such a rule
is to enable the court to consider [the claim] below—to prevent error—to avoid appeal."
Grant v. United States, 291 F.2d 746, 748 (9th Cir. 1961). See also State v. Levy, 292
Kan. 379, 253 P.3d 341 (2011) (noting purpose of requiring contemporaneous objection
to preserve evidentiary claim for appeal is to allow trial court opportunity to rule on
issue).
11
 Scuderi argues he preserved his challenge to the 10CR400 complaint because
"[t]he district court allowed counsel to adopt . . . in both cases" the arguments contained
in his motion to arrest judgment. But this skews the facts by ignoring that he never
accepted the district court's offer, despite being aware the district court believed the
motion only referred to 10CR241.

Nonetheless, we hold Scuderi preserved the defective complaint issue for appellate
review. Scuderi raises the same basic issue he presented to the district court. And in
responding to Scuderi's cross-appeal, which clearly challenged the complaint in only
10CR400, the State seemingly accepts this by stating Scuderi "did not directly challenge
the sufficiency and wording of the [complaint] . . . until he filed a Motion for Arrest of
Judgment . . . ." More notably, the State did not respond to Scuderi's supplemental brief
with a preservation argument. Moreover, we discern some ambiguity in the record based
on the timing of the district court's offer and the manner in which it bifurcated arguments
and sentencing on the posttrial motions in the two cases.

Sufficiency of the Complaint in Case 10CR400

Scuderi argues the complaint was insufficient because it failed to allege he had
resided or been temporarily domiciled in Reno County for more than 10 days. The
complaint alleged:

"[O]n or about the 30th day of April, 2010, in said County of Reno and State of Kansas,
one Willie J. Scuderi then and there being, did then and there, unlawfully, feloniously and
willfully . . . intentionally fail to register in writing with the Sheriff of Reno County,
Kansas for the month of April 2010, as required under the Kansas Offender Registration
Act, K.S.A. 22-4901 et seq., as amended, based on his previous conviction of sale of a
controlled substance in Sedgwick County."

12
 These allegations are substantively identical to those challenged on the same
grounds in Sayler. Accordingly, Sayler controls the outcome here. In Sayler, we held:

"[A] 'charging document should be regarded as sufficient . . . when it has alleged facts
that would establish the defendant's commission of a crime recognized in Kansas.' [Dunn]
304 Kan. at 811-12. '[T]he facts alleged, rather than the legal elements regurgitated,
determine whether the charge is sufficient under the statute defining the crime.' 304 Kan.
at 820. Since all crimes are defined by statute, our inquiry is informed by statute. We
compare '[t]he legislature's definition of the crime charged . . . to the State's factual
allegations of the defendant's intention and action. If those factual allegations, proved
beyond a reasonable doubt, would justify a verdict of guilty, then the charging document
is statutorily sufficient.' 304 Kan. at 812.

"K.S.A. 2011 Supp. 22-4903 provides an offender who fails 'to comply with any and all
provisions of [KORA], including any and all duties set forth in K.S.A. 22-4905 through
K.S.A. 22-4907' is guilty, '[u]pon a third or subsequent conviction, [of] a severity level 3,
person felony.' K.S.A. 2011 Supp. 22-4905(b) requires sex offenders to 'report in person
four times each year to the registering law enforcement agency in the county or location
of jurisdiction in which the offender resides, maintains employment or is attending a
school.'

"The complaint here alleged Sayler had been convicted of a crime for which
KORA compliance would be required and that Sayler failed to register with the county
sheriff's office at the statutorily appointed time and the date registration was required.
These facts are sufficient to constitute the crime of violating KORA's provisions. The
basis for the State's allegation that Sayler breached his KORA obligations in a given
county can be addressed before trial if there is a question. See, e.g., K.S.A. 22-3201(f)
('When a complaint . . . charges a crime but fails to specify the particulars of the crime
sufficiently to enable the defendant to prepare a defense the court may, on written motion
of the defendant, require the prosecuting attorney to furnish the defendant with a bill of
particulars.').

13
 "We further note Sayler could not successfully challenge his conviction by
asserting the third type of Dunn error and arguing the charging document failed to impart
notice that the State believed he was required to register in Kingman County based on his
residence there. Sayler stipulated he had a duty to register and based his defense on his
subjective intent in failing to do so. As Sayler conceded at oral argument, in this
particular case he could not have been prejudiced because he did not dispute his statutory
duty to register in Kingman County." Slip op. at 7-8.

Similarly, Scuderi stipulated he was required to register and his defense turned on
whether he resided in Reno County, just as it would have if the charging document had
been more precisely worded. Moreover, in Scuderi's case, since the trials were
consolidated, the complaint in 10CR241 put Scuderi's residence in issue at the trial by
alleging Scuderi had "com[e] into Reno county to reside or establish temporary
residency" as of February 2010.

We agree with the panel's outcome on this issue, although our reasons differ
because the panel did not have the benefit of Dunn.

Affirmed on the issues subject to review.

***

BEIER, J., dissenting: Consistent with my votes in State v. Meredith, 306 Kan.
906, 399 P.3d 859 (2017); and State v. Huey, 306 Kan. 1005, 399 P.3d 211 (2017), I
respectfully dissent from the majority's decision in this case on the ex post facto
challenge.

14
"Kansas' requirement of offender registration—especially in its modern, maximally
invasive, maximally pervasive, and infinitely more public incarnation—is punishment,
certainly in effect if not in intent. It is no less so for a drug offender than for a sex
offender or a violent offender. It is no less so when the Ex Post Facto Clause is before us
than when Apprendi or the Eighth Amendment is before us." Meredith, 306 Kan. at 914,
(Beier, J., dissenting).

ROSEN and JOHNSON, JJ., join the foregoing dissent.

15