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Date: 02-13-2024
Case Style:
Case Number: No. 124,970
Judge: Kim R. Schroeder
Court:
Plaintiff's Attorney:
Defendant's Attorney:
Description:
In October 2021, the State charged Conkling with 98 counts of various sex
offenses, including 50 counts of rape, 10 counts of aggravated criminal sodomy, 8 counts
of aggravated indecent liberties with a child, and 30 counts of sexual exploitation of a
child. Conkling pled no contest to one count of rape in violation of K.S.A. 2021 Supp.
21-5503(a)(1)(A) and one count of aggravated indecent liberties with a child who is 14 or
more years of age but less than 16 years of age in violation of K.S.A. 2021 Supp. 21-
5506(b)(1). In exchange for Conkling's plea, the State dismissed the remaining charges.
The plea agreement stated Conkling could receive up to 36 months' postrelease
supervision related to each charge and he understood the district court was not bound by
the terms of the plea agreement.
At the plea hearing, Conkling stated he freely and voluntarily signed the plea
agreement. The State provided a factual basis for the charges and included information
about the victim's age and date of birth but not Conkling's. Conkling agreed the State's
factual recitation was the evidence the State would have presented against him. The
district court accepted the factual basis and found Conkling guilty of both charges.
At sentencing, the district court imposed consecutive sentences of 165 months'
imprisonment for the rape conviction and 61 months' imprisonment for the aggravated
indecent liberties with a child conviction and ordered lifetime postrelease supervision.
ANALYSIS
On appeal, Conkling raises only one issue, claiming the district court violated
Apprendi by engaging in judicial fact-finding to extend his postrelease supervision to a
term of life. Conkling specifically argues the district court's determination he was over
the age of 18 when he committed his sexually violent crimes was a factual finding in
violation of Apprendi. Conkling asks us to vacate his lifetime postrelease sentence and
remand the case to the district court to impose a postrelease supervision term of 60
months. The State asserts the district court did not violate Apprendi by ordering lifetime
postrelease supervision and any constitutional error was harmless.
Although Conkling failed to raise the issue before the district court, the parties
agree the issue is properly before us as it is purely a legal question that is determinative
of the case and concerns fundamental rights. See State v. Godfrey, 301 Kan. 1041, 1043,
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350 P.3d 1068 (2015). Our appellate courts have addressed the same issue for the first
time on appeal on the basis the claim was a purely legal question based on undisputed
facts. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014); State v. Schmeal,
No. 121,221, 2020 WL 3885631, at *8 (Kan. App. 2020) (unpublished opinion). We will
address the issue under the same exception.
In Apprendi, the United States Supreme Court determined: "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. But, in Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159
L. Ed. 2d 403 (2004), the United States Supreme Court noted, for Apprendi purposes, a
sentencing judge can consider "facts reflected in the jury verdict or admitted by the
defendant." Whether a district court violated a defendant's constitutional rights 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).
K.S.A. 2022 Supp. 22-3717(d)(1)(G)(i) states: "[P]ersons sentenced to
imprisonment for a sexually violent crime 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."
K.S.A. 2022 Supp. 22-3717(d)(1)(G)(ii) states: "Persons sentenced to imprisonment for a
sexually violent crime . . . 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."
Conkling contends his convictions "did not require proof that he was over the age
of 18" when the crimes were committed and a judicial admission regarding his age does
not equate to a guilty plea or elemental stipulation. The State responds Conkling filed an
application for appointed defense counsel at the beginning of his case stating he was 40
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years old, later admitted under oath at his plea hearing he was 41 years old, and submitted
a signed petition to enter plea agreement stating he was 41 years old.
Conkling acknowledges other panels of this court have rejected similar arguments.
See State v. Entsminger, No. 124,800, 2023 WL 2467058, at * 8 (Kan. App. 2023)
(unpublished opinion), petition for rev. filed April 10, 2023; State v. Reinert, No.
123,341, 2022 WL 1051976, at *3 (Kan. App.) (unpublished opinion), rev. denied 316
Kan. 762 (2022); State v. Kewish, No. 121,793, 2021 WL 4352531, at *4 (Kan. App.
2021) (unpublished opinion); State v. Haynes, No. 120,533, 2020 WL 741458, at *2-3
(Kan. App. 2020) (unpublished opinion); Schmeal, 2020 WL 3885631, at *8-9; State v.
Zapata, No. 120,529, 2020 WL 741486, at *8-9 (Kan. App. 2020) (unpublished opinion).
While these unpublished opinions are not binding on our decision, we find the analyses
set forth therein persuasive.
Conkling's admissions lead us to conclude there is no Apprendi violation here. In
fact, Conkling's admissions are like those in Haynes, where Haynes admitted his age (1)
in a financial affidavit he signed and submitted to the district court, (2) in his signed plea
document, and (3) at the plea hearing itself. 2020 WL 741458, at *3. Here, Conkling filed
an application for appointed defense services in October 2021, stating under penalty of
perjury he was born in 1981 and was 40 years old. Conkling also submitted a signed
petition to enter plea agreement, which stated: "The Defendant represents to the Court:
. . . My true name is: JOSEPH JAMES CONKLING and I am 41 years of age." In the
plea agreement, Conkling stipulated sufficient facts existed which, if presented to the
fact-finder in a trial, could result in convictions for the offenses charged in the State's
amended complaint. At the plea hearing, while under oath, the district court directly
asked Conkling how old he was, to which Conkling responded, "41." Conkling also
completed his offender registration under the Kansas Offender Registration Act, K.S.A.
2022 Supp. 22-4901 et seq., confirming he was born in January 1981.
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The record is clear. By Conkling's own admissions, he was over 18 years old when
he committed his crimes. The district court's finding that Conkling was over the age of 18
when he committed his crimes did not violate Apprendi. As such, we find it unnecessary
to reach the State's alternative argument of harmless error.
Outcome:
Plaintiff's Experts:
Defendant's Experts:
Comments: