Preview:

No. 102,195 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. WAYNE MICHAEL FRANKLIN, Appellant.

SYLLABUS BY THE COURT 1. The term "dangerous weapon" used in the aggravated robbery statute, K.S.A. 213427, is synonymous with the term "deadly weapon."

2. A provision of the Kansas Offender Registration Act, more particularly K.S.A. 2009 Supp. 22-4902(a)(7), which requires a defendant to register as a violent offender, is applied to a defendant who admits using a BB pistol in two robbery incidents. The Act requires registration by a defendant who uses a deadly weapon in the commission of a person felony. When a defendant pleads guilty to aggravated robbery pursuant to K.S.A. 21-3427 and attempted aggravated robbery pursuant to K.S.A 21-3301 and K.S.A. 213427, the defendant admits each and every element of the crimes, including the element that each crime was committed with the use of a dangerous weapon; that is, notwithstanding the fact that the defendant used a BB pistol, that the defendant intended that the victim believe that the pistol was a dangerous weapon, and that the victim reasonably believed the pistol was a dangerous weapon.

1

3. Requiring a defendant who pleads guilty to aggravated robbery pursuant to K.S.A. 21-3427 and attempted aggravated robbery pursuant to K.S.A 21-3301 and K.S.A. 213427 to register as a violent offender pursuant to K.S.A. 2009 Supp. 22-4902(a)(7) without a jury determination that the defendant used a deadly weapon in commission of the crimes does not violate the defendant's constitutional rights described in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed July 2, 2010. Affirmed.

Christina M. Waugh, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, for appellee.

Before MCANANY, P.J., CAPLINGER and BUSER, JJ.

MCANANY, J.: Wayne Michael Franklin robbed Rose Cooney of her purse in a parking lot while holding what Cooney perceived to be a black, possibly semi-automatic, hand gun in his right hand and tucked against his body. A few hours later, Franklin attempted a similar robbery of Stephanie Hanna in a different parking lot by pointing a black gun at her and demanding her purse. Hanna refused to submit.

The police arrested Franklin later that day and found a BB pistol in Franklin's pocket along with a debit card issued to Cooney. Franklin admitted using the BB pistol in the commission of these crimes.

The State charged Franklin with aggravated robbery in violation of K.S.A. 213427 for the Cooney incident and attempted aggravated robbery in violation of K.S.A. 2

21-3301 and K.S.A. 21-3427 for the Hanna incident. Both crimes are person felonies. Franklin pled guilty to both.

At sentencing, the State asked the court to find that the BB pistol Franklin used in the commission of these crimes was a deadly weapon for purposes of the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. KORA provides that if the court makes a finding on the record that a deadly weapon was used in the commission of a person felony, the defendant is required to register as a violent offender. K.S.A. 2009 Supp. 22-4902(a)(7).

Franklin objected, arguing that there was no evidence to support a finding that the BB pistol was a deadly weapon. He further argued that an objective test should be applied in determining whether the BB pistol qualified as a deadly weapon for purposes of K.S.A. 2009 Supp. 22-4902(a)(7).

The district court determined that the BB pistol Franklin used was a deadly weapon pursuant to K.S.A. 2009 Supp. 22-4902(a)(7) and ordered Franklin to register as a violent offender. The court then sentenced Franklin to a controlling term of 61 months in prison.

Franklin appeals, claiming that the district court erred (1) in requiring him to register under the KORA and (2) in finding that the BB pistol was a deadly weapon without the requisite proof mandated by Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

K.S.A. 2009 Supp. 22-4902(a)(7)

The first issue requires us to interpret and apply K.S.A. 2009 Supp. 22-4902(a)(7), which are matters of law subject to de novo review. State v. Jefferson, 287 Kan. 28, 33, 3

194 P.3d 557 (2008). Our task is to determine the legislature's intent through its statutory language, giving ordinary words their ordinary meaning. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). When a statute is plain and unambiguous, an appellate court need not resort to statutory construction. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). However, when statutory construction is required, the most fundamental rule is that the legislature's intent governs if it is ascertainable. Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008).

As stated in State v. Colbert, 244 Kan. 422, Syl.

Download State v. Franklin.pdf

Kansas Law