City of Shawnee v. Adem

494 P.3d 134

CITY OF SHAWNEE, Appellee,

v.Asnake H. ADEM, Appellant.

No. 121,328

Supreme Court of Kansas.

Opinion filed August 27, 2021.

Richard P. Klein, of Olathe, argued the cause and was on the brief for appellant.

Jenny L. Smith, assistant city attorney, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by Biles, J.:

Asnake Adem seeks our review after a Court of Appeals panel held the Kansas Offender Registration Act, K.S.A. 2020 Supp. 22-4901 et seq., applies to his municipal court conviction for sexual battery. See City of Shawnee v. Adem , 58 Kan. App. 2d 560, 561-62, 472 P.3d 123 (2020). His concern arises because the act does not explicitly declare that it applies to municipal ordinance violations, so he argues this silence weighs in his favor. But at the time of his conviction, K.S.A. 2018 Supp. 22-4902(b)(7) required registration by any person convicted of an offense "comparable" to crimes listed in that subsection. And Adem's sexual battery conviction under the Uniform Public Offense Code adopted by the City of Shawnee has the same definition as the crime of sexual battery listed in K.S.A. 2020 Supp. 22-4902(b). We hold his municipal conviction is an "offense" within the meaning of K.S.A. 2020 Supp. 22-4902(b)(7) and "comparable" to a crime defined in K.S.A. 2020 Supp. 22-4902(b)(5) (sexual battery as defined in K.S.A. 2020 Supp. 21-5505 [a]). KORA requires Adem to register. We affirm the panel.

FACTUAL AND PROCEDURAL BACKGROUND

Adem drove a taxi late at night with two female passengers. He dropped the first off in Overland Park and started toward Shawnee with the other. During the drive, he pulled the car over and asked her to move to the front seat. After she switched seats and the pair continued on, he repeatedly asked her to go to a bar with him. She refused. A short time later, he pulled the car over again, this time to embrace her for 15 to 30 seconds from the driver's seat. He started to rub her forearm and thigh in a sexual nature. She asked him to take her to a different destination she knew was closer and would have other people. But before getting there, Adem pulled the car over again and embraced her. He repeated this yet a third time when they arrived. She reported the incident to police the next morning.

The City of Shawnee charged Adem with sexual battery in violation of Shawnee Municipal Code § 9.01.010 (incorporating Uniform Public Offense Code for Kansas Cities § 3.2.1 [36th ed. 2020]) (UPOC § 3.2.1). In April 2018, a Shawnee Municipal Court judge convicted Adem and sentenced him to 12 months' probation with an underlying jail sentence of 180 days. The court required a sex offender evaluation.

Adem appealed to Johnson County District Court, where a six-person jury found him guilty on the sexual battery charge after a trial de novo. The district court imposed the same 12 months' probation with an underlying 180-day jail sentence. It also advised Adem he must register as a sex offender under KORA.

Adem appealed his conviction and sentence, specifically challenging the sex offender registration requirement. A Court of Appeals panel affirmed the district court, noting the Shawnee Municipal Code defined sexual battery the same as the sexual battery offense listed in KORA. It held he must register as a sex offender. Adem , 58 Kan. App. 2d at 567-69, 472 P.3d 123.

Adem petitioned for review with this court, which we granted. The City did not file a cross-petition for review of the panel's rejection of its claim that Adem's registration arguments were not yet ripe for appellate review. 58 Kan. App. 2d at 562-65, 472 P.3d 123. But that failure does not end a jurisdictional issue, so we have reviewed the question sua sponte. See State v. Marinelli , 307 Kan. 768, 769, 415 P.3d 405 (2018) (appellate court has duty to question jurisdiction on its own initiative). We hold the panel correctly rejected the City's jurisdictional attack. See K.S.A. 2020 Supp. 22-3602(a) (defendant may appeal as a matter of right from any judgment against defendant including any district court decision or intermediate order made in the progress of the case); Marinelli , 307 Kan. at 787, 415 P.3d 405 ("[E]ven those instances when registration is based on the convicted offense ... should be caught up in the jurisdictional net cast by the first sentence in K.S.A. 2017 Supp. 22-3602 [a].").

Jurisdiction to consider Adem's challenge is proper under K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions) and K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ANALYSIS

KORA requires registration by any person it defines as a "sex offender." To decide whether Adem must register for his municipal sexual battery conviction, we look to K.S.A. 2020 Supp. 22-4902(b)(7). It defines "sex offender" to include "any person who ... has been convicted of an offense that is comparable to any crime defined in this subsection ." (Emphasis added.) We must determine whether UPOC § 3.2.1 is an "offense" that is "comparable" to any crime defined in K.S.A. 2020 Supp. 22-4902(b). This is a question of statutory interpretation. See State v. Stoll , 312 Kan. 726, 736, 480 P.3d 158 (2021) (holding application of the term "drug offender" under KORA is a question of statutory interpretation).

When interpreting a statute, we begin with its plain language, giving common words their ordinary meaning. If a statute is plain and unambiguous, we do not speculate about the legislative intent behind that clear text. But if the statutory language is ambiguous, we will consult our canons of construction to resolve the ambiguity.

Johnson v. U.S. Food Serv. , 312 Kan. 597, 601, 478 P.3d 776 (2021).

State law empowers Kansas cities to enact ordinances regulating conduct within their jurisdictions and to prosecute violations of those ordinances in their municipal courts. See K.S.A. 12-3001 et seq. (provisions governing city ordinances); K.S.A. 12-4101 et seq. (governing municipal court proceedings); K.S.A. 12-4201 et seq. (same); K.S.A. 12-4301 et seq. (same); K.S.A. 12-4401 et seq. (same); K.S.A. 12-4501 et seq. (same); K.S.A. 12-4601 et seq. (same). And with that statutory authority, the City of Shawnee adopted UPOC § 3.2.1, which Adem violated.

Our first question is whether Adem's municipal ordinance conviction may be considered an "offense" within the meaning of K.S.A. 2020 Supp. 22-4902(b)(7). We hold that it is. The term "offense" is commonly defined as "[a] violation of the law; a crime, often a minor one." Black's Law Dictionary 1250 (11th ed. 2019).

We must next decide whether UPOC § 3.2.1 is "comparable" to the sexual battery crime defined in K.S.A. 2020 Supp. 21-5505(a). See K.S.A. 2020 Supp. 22-4902(b)(5), (b)(7). We have little difficulty concluding that it is. To begin with, Adem concedes the sexual battery elements under UPOC § 3.2.1 are identical to those of sexual battery under K.S.A. 2020 Supp. 21-5505(a). That statute defines sexual battery as "the touching of a victim who is not the spouse of the offender, who is 16 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another." Given that both crimes comprise identical components, we hold Adem's convicted offense is a "comparable" crime that requires registration.

In State v. Wetrich , 307 Kan. 552, 562, 412 P.3d 984 (2018), the court considered the meaning of the term "comparable" in the context of calculating criminal history scores under the revised Kansas Sentencing Guidelines Act, K.S.A. 2017 Supp. 21-6801 et seq. The issue arose because K.S.A. 2017 Supp. 21-6811(e)(3) provided that out-of-state convictions are scored as more serious "person" crimes if they are "comparable" to crimes defined as such under Kansas law. The Wetrich court had to decide whether "comparable" meant merely approximate or something more stringent when confronting an out-of-state burglary with elements much like—but not identical to—the person-crime form of Kansas burglary. The court concluded that for an out-of-state crime to be "comparable" to a Kansas person crime, "the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. In other words, the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." Wetrich , 307 Kan. at 562, 412 P.3d 984.

In Adem's case, the municipal ordinance is identical to the statutory crime, so K.S.A. 2020 Supp. 22-4902(b)(7)'s application is obvious because the respective elements are not just analytically comparable—they are indistinguishable. See Patterson v. Cowley County , 307 Kan. 616, 622, 413 P.3d 432 (2018) ("A court determines legislative intent by first applying the meaning of the statute's text to the specific situation in controversy."). We express no opinion, however, whether Wetrich 's definition of "comparable" might apply to K.S.A. 2020 Supp. 22-4902(b)(7) when the elements of an offense are narrower or broader than the crime it is being compared to for KORA purposes. The lack of a less than perfect statutory alignment makes no difference here.

But Adem argues against a plain statutory language result under K.S.A. 2020 Supp. 22-4902(b)(7) by focusing attention elsewhere. First, he asserts KORA should not apply to any municipal ordinance violations because of a separate provision in the Kansas Code of Criminal Procedure. Second, he contends the Legislature showed its clear intent not to apply KORA to municipal ordinances when it failed to amend the act in 2012 to make its application explicit. We disagree with both points.

First, Adem argues KORA does not apply because K.S.A. 22-2102 states that "[t]he provisions of [KCCP] shall govern proceedings in all criminal cases in the courts of the state of Kansas, but shall have application to proceedings in...