State v. Mendoza ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,428
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DESIDERIO MENDOZA,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed December
10, 2021. Affirmed.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE, J., and JAMES L. BURGESS, S.J.
PER CURIAM: Desiderio Mendoza appeals his sentence following his no-contest
plea to one count each of aggravated criminal sodomy and rape. The district court
sentenced him to 310 months' imprisonment with lifetime postrelease supervision.
Mendoza raises only one issue on appeal, claiming the district court engaged in judicial
fact-finding to extend his postrelease supervision period, in violation of Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). For the reasons stated in
this opinion, we reject Mendoza's claim and affirm the district court's judgment.
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FACTS
On April 8, 2019, the State charged Mendoza with one count of aggravated
indecent liberties with a child, an off-grid felony, one count of aggravated criminal
sodomy, a severity level 1 person felony, and one count of aggravated indecent liberties
with a child, a severity level 4 person felony, for crimes he committed against his then
13-year-old victim. The facts supporting the charges are not relevant to this appeal.
On July 5, 2019, the district court held a preliminary hearing. After the victim
testified, the State amended the charges to include one count of rape, a severity level 1
person felony, and several additional sexually violent crimes. Also, at the hearing, the
State proffered, and Mendoza stipulated, that he was over the age of 18.
On February 3, 2020, Mendoza signed a written plea agreement, in which he
agreed to plead no contest to one count each of aggravated criminal sodomy and rape,
severity level 1 person felonies. Each count alleged that the crimes occurred between
September 2015 and February 2016. In exchange for his plea, the State agreed to dismiss
the remaining charges. In the plea agreement, Mendoza acknowledged that by pleading
no contest, he was waiving certain legal rights, including his right to a jury trial on the
charges. The plea agreement also attested that he was 40 years old. The plea agreement
stated that Mendoza was subject to the maximum sentence of 230 months' imprisonment
and lifetime postrelease supervision for each offense.
At the hearing to enter his plea, the judge asked if Mendoza understood what he
was charged with and what the possible penalties were, and Mendoza said that he did.
The judge also discussed Mendoza's right to trial with him saying, "You understand that
you have an absolute right to a trial by jury?" Mendoza answered in the affirmative. The
judge asked, "Do you understand that at a trial the State would have to prove you guilty
beyond a reasonable doubt?" Again, Mendoza answered yes. And finally, the judge
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asked, "Do you understand that by pleading no contest here today you'll be giving up the
rights that you and I just talked about and there'll be no trial?" Mendoza said yes.
Mendoza pled no contest to aggravated criminal sodomy and rape. After the State recited
its factual basis, the district court found that Mendoza knowingly, freely, voluntarily, and
intelligently waived his constitutional rights and accepted the no-contest plea.
On October 22, 2020, the district court sentenced Mendoza to consecutive
sentences of 155 months' imprisonment for each count, for a controlling sentence of 310
months' imprisonment with lifetime postrelease supervision. Mendoza timely appealed
the district court's judgment.
ANALYSIS
On appeal, Mendoza challenges only his lifetime postrelease supervision term,
claiming the district court engaged in judicial fact-finding to extend his postrelease
supervision period in violation of Apprendi. The district court ordered lifetime
postrelease supervision because Mendoza pled no contest and was convicted of two
sexually violent crimes. Before 2017, K.S.A. 22-3717(d)(1)(G) required lifetime
postrelease supervision for a defendant convicted of any sexually violent crime. In 2017,
the statute was amended to require lifetime postrelease supervision for sexually violent
crimes when the defendant is 18 years or older when the crime was committed.
Mendoza argues the statutory amendment was in response to our Supreme Court's
decision in State v. Dull, 302 Kan. 32, 61, 351 P.3d 641 (2015), which held mandatory
lifetime postrelease supervision for juveniles is unconstitutional because it amounts to
cruel and unusual punishment. Mendoza asserts that although he committed his crimes
before the statutory amendment was enacted, there is still a constitutional requirement
that an offender must be 18 years or older for the district court to impose lifetime
postrelease supervision. Mendoza argues that Apprendi requires this fact to be proven to a
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jury beyond a reasonable doubt. Because there was no jury finding that Mendoza was 18
years or older when he committed his crimes and he did not knowingly waive his right
for a jury to make this finding for sentencing purposes, Mendoza argues that this court
must vacate the lifetime postrelease order and remand for resentencing.
The State argues that Mendoza never contested and affirmatively acknowledged
that he was an adult over the age of 18 and therefore his claim has no merit. The State
also argues that even if the district court erroneously found that Mendoza was over the
age of 18, it amounted to a harmless error.
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). Mendoza correctly asserts this court
can consider his claim for the first time on appeal because it involves a question of law
based on undisputed facts. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
In Apprendi, the United States Supreme Court said: "Other than the 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. The Court later expanded the Apprendi rule in Alleyne v. United States, 570 U.S.
99, 103, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), by holding that "any fact that
increases the mandatory minimum is an 'element' that must be submitted to the jury."
Generally, a person must be sentenced by the sentencing provisions in effect when
the crime is committed. State v. McLinn, 307 Kan. 307, 337, 409 P.3d 1 (2018). Mendoza
committed his crimes between September 2015 and February 2016, so K.S.A. 2015 Supp.
22-3717 applied to his convictions. The relevant subsections of the statute provide:
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"(d)(1) Persons sentenced for crimes, other than off-grid crimes, committed on or
after July 1, 1993, or persons subject to subparagraph (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:
(A) Except as provided in subparagraphs (D) and (E), persons sentenced for
nondrug severity levels 1 through 4 crimes . . . must serve 36 months on postrelease
supervision.
....
(G) Except as provided in subsection (u), persons convicted of a sexually violent
crime committed on or after July 1, 2006, 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." K.S.A. 2015 Supp. 22-3717(d)(1)(A) and (G).
Effective July 1, 2017, after Mendoza committed his crimes, K.S.A. 22-
3717(d)(1)(G) was amended to require lifetime postrelease supervision for a defendant
convicted of a sexually violent crime committed on or after July 1, 2006, when the
offender was 18 or older when the crime was committed. If the defendant was under 18
when the sexually violent crime was committed, the postrelease supervision term is 60
months. K.S.A. 2017 Supp. 22-3717(d)(1)(G).
The Kansas Supreme Court has held that a plea of guilty to a statutorily defined
sexually violent crime provides a lawful basis to impose an extended postrelease
supervision period without resort to the type of court-made factual findings disapproved
by Apprendi. See State v. Walker, 275 Kan. 46, 51, 60 P.3d 937 (2003). Mendoza's
crimes of conviction—rape and aggravated criminal sodomy—were statutorily defined as
"'sexually violent crime[s]'" for imposing postrelease supervision. See K.S.A. 2015 Supp.
22-3717(d)(5)(A), (E). Mendoza does not challenge the district court's findings that his
crimes were sexually violent. Instead, he argues the district court improperly determined
he was 18 years or older to enhance his postrelease supervision from a term of months to
lifetime without either proving his age to a jury beyond a reasonable doubt or obtaining a
waiver from him relinquishing this claimed right.
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Mendoza argues that even though the 2015 version of the statute that he was
sentenced under does not require a finding that he was over 18 to impose lifetime
supervision, the Eighth Amendment to the United States Constitution and settled caselaw
required it. Mendoza cites Dull as authority for this proposition. In that case, Dull was
charged, convicted, and sentenced to 45 months' imprisonment with lifetime postrelease
supervision after he pled guilty to aggravated indecent liberties with a child, a crime he
committed when he was 17 years old. Our Supreme Court vacated the mandatory
postrelease supervision portion of Dull's sentence holding that mandatory lifetime
postrelease supervision for juveniles is cruel and unusual punishment. 302 Kan. at 61.
Based on Dull, Mendoza asserts there is a constitutional requirement that an
offender must be 18 years old or older for the district court to impose lifetime postrelease
supervision. To be clear, Mendoza does not claim he was a juvenile when he committed
his crimes. But he argues that Apprendi requires his age to be proven to a jury beyond a
reasonable doubt before the district court can order lifetime postrelease supervision.
Mendoza correctly argues that his no-contest plea was not a waiver of this claimed
requirement because the plea only covered the charged crimes and Mendoza's age was
not an element of the charged crimes. Mendoza also argues that he did not knowingly
waive his claimed right under Apprendi for a jury to find he was 18 or older for
sentencing purposes because the district court never informed him of this right.
But Mendoza's argument ignores a fundamental point of law concerning an
alleged Apprendi violation. The "'statutory maximum' for Apprendi purposes is the
maximum sentence a judge may impose solely 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). The United States Supreme Court has
recognized an exception to the Apprendi rule when the defendant admits a fact. United
States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)
("Accordingly, we affirm our holding in Apprendi: Any fact (other than a prior
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conviction) which is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.").
Mendoza acknowledged his age to the district court several times, which renders
the fact that he was over the age of 18 when he committed his crimes a factual admission
that does not come under the protection of Apprendi. At the preliminary hearing,
Mendoza stipulated he was over the age of 18. In the plea agreement Mendoza admitted
he was 40 years old when he signed the agreement, which would have made him 35 or 36
years old when he committed the crimes. A review of the record also reflects that
Mendoza provided his age in the written financial affidavit he signed seeking court
appointed counsel. Additionally, Mendoza's birthdate appeared on his notice to register as
an offender; and the presentence investigation report listed Mendoza's age as 37 when he
was charged. Mendoza never objected to or corrected any of these documents.
Mendoza's admission to his age is fatal to his argument. As Mendoza concedes,
many panels of this court have dispatched identical challenges to lifetime postrelease
supervision based on undisputed evidence in the record of the defendants admitting their
adult age. See State v. Schmeal, No. 121,221, 2020 WL 3885621, at *8-9 (Kan. App.
2020) (unpublished opinion), rev. denied 312 Kan. 900 (2020); State v. Haynes, No,
120,533, 2020 WL 741,458, at *2-3 (Kan. App. 2020) (unpublished opinion), rev. denied
312 Kan. 896 (2020); State v. Zapata, No. 120,529, 2020 WL 741486, at *8-9 (Kan. App.
2020) (unpublished opinion), rev. denied 312 Kan. 901 (2020); State v. Cook, No.
119,715, 2019 WL 3756188, at *2 (Kan. App. 2019) (unpublished opinion), rev. denied
312 Kan. 895 (2020). We find the reasoning in these decisions to be persuasive.
Given Mendoza's repeated admissions throughout the proceedings about his age,
this case falls under the exception to the Apprendi rule. Based on the nature and timing of
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his crimes, the district court did not err in finding that Mendoza is subject to lifetime
postrelease supervision under K.S.A. 2015 Supp. 22-3717(d)(1)(G).
Alternatively, even if we had found an Apprendi error based on the State's failure
to prove Mendoza's age to a jury beyond a reasonable doubt, or to have the State obtain a
voluntary waiver from him relinquishing this right, such an error is not structural but
subject to harmless error analysis. See Washington v. Recuenco, 548 U.S. 212, 222, 126
S. Ct. 2546, 165 L. Ed. 2d 466 (2006) ("Failure to submit a sentencing factor to the jury,
like failure to submit an element to the jury, is not structural error."). The Kansas
Supreme Court has also recognized that an Apprendi error may be subject to harmless
error review. State v. Reyna, 290 Kan. 666, 681-82, 234 P.3d 761 (2010).
Had the district court committed an Apprendi error here, the logical remedy would
restore the State and Mendoza to the positions they were in before the error. That remedy
would give Mendoza the chance to make an informed decision on waiving or exercising
his right to have a jury determine his age for sentencing purposes. On remand for
resentencing, even if Mendoza exercised his right to have a jury determine his age for
sentencing purposes, the State could no doubt prove Mendoza was 18 years old or older
when he committed his crimes without going beyond the evidence already in the record.
Mendoza does not claim he was a juvenile when he committed his crimes. The record is
void of any conflicting evidence regarding his age and, as has been established, the
record is clear he was at least 18 years old when he committed his crimes. Even assuming
an Apprendi-type error existed based on his age not being submitted to a jury for
determination, the State has met its burden of showing beyond a reasonable doubt that
any such error was harmless. See State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011)
(applying constitutional harmless error standard to trial error).
Affirmed.
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