STATE OF KANSAS v. GIOVANNI M. JUAREZ, a/k/a GIOVANNI JUAREZ-HERNANDEZ

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 118,543

STATE OF KANSAS,

Appellee,

v.

GIOVANNI M. JUAREZ, a/k/a GIOVANNI JUAREZ-HERNANDEZ,

Appellant.

SYLLABUS BY THE COURT

1.

A district court's failure to provide timely notice of a defendant's registration

obligation under K.S.A. 2019 Supp. 22-4904(a)(1)(A) does not constitute a denial of

procedural due process where the defendant fails to demonstrate prejudice.

2.

On the facts before us, the defendant has failed to demonstrate prejudice because

he neither presented additional evidence nor asked for the opportunity to do so with

respect to the district court's exercise of discretion, and because he remained

incarcerated—and thus, had no responsibility to register yet—between the time when the

district court should have provided him notice and the time it actually did so.

Review of the judgment of the Court of Appeals in an unpublished opinion filed January 11,

2019. Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed August 28, 2020.

Judgment of the Court of Appeals affirming the district court on the sole issue on review is affirmed.

Judgment of the district court is affirmed.

Christina M. Kerls, of Kansas Appellate Defender Office, was on the brief for appellant.

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Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek

Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

WILSON, J.: Giovanni M. Juarez, a/k/a Giovanni Juarez-Hernandez, was convicted

and sentenced for aggravated battery. The district court also ordered him to register as a

violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 2019

Supp. 22-4901 et seq. After addressing several issues on appeal, the Court of Appeals

found no reversible error and affirmed the district court. This court granted review solely

to consider whether the district court's notice to Juarez concerning his obligation to

register violated his right to due process. To be clear, this court does not address Juarez'

underlying conviction, sentence, or duty to register. Finding no violation of due process

within this narrowly defined parameter, we affirm.

FACTS AND PROCEDURAL BACKGROUND

One day in May 2015, an incarcerated Juarez hit a guard in the face hard enough

to break his eye socket. Thereafter, Juarez pled no contest to aggravated battery. See

K.S.A. 2019 Supp. 21-5413(b)(2)(A). The district court accepted his plea and found him

guilty of that crime but did not notify Juarez of an obligation to register under KORA.

Nor did KORA itself provide notice of such an obligation, because Juarez' crime was not

listed in K.S.A. 2019 Supp. 22-4902(e)(1) as a crime that automatically required

registration.

Juarez remained incarcerated. Six weeks later, the district court sentenced Juarez

and also informed him that he was required to register as a violent offender pursuant to

KORA. As the district court said at the time:

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"My reason for doing so includes the following: This defendant was ultimately

deemed to be competent to stand trial and, therefore, capable of understanding complex

court proceedings. He is, however, as is demonstrated through the course of action in this

case, unable to control his emotions and is at risk of physical assault without advanced

warning to others and in the absence of any type of trigger or provocation. The defendant

is, therefore, a significant risk of threat or threat of reoccurrence of criminal behavior

and, therefore, poses a significant risk to other persons.

"There has been no diagnosis or explanation offered for his behavior. The very

limited opportunity that this statute gives me for a period of incarceration means that the

opportunity for treatment is very much unclear. And even if it was clear that there would

be any treatment for any supposed condition that might exist, it is the opinion of this

Court that the relatively short period of treatment would not have a significant likelihood

of any risk reduction due to that treatment and that any treatment opportunity or treatment

effort would be minimal. In other words, treatment requires one thing, it requires the

cooperation of the defendant. And there's been no indication on the part of this defendant

of either prior to or during the course of this incident and this case that there has been any

treatment sought or any treatment even available. In fact, there's no diagnosis that

explains it.

"The purpose, at least in part, of the Kansas Offender Registration Act is to

permit persons in this community and other communities to gather information about

their neighbors, their associates, their associations with other individuals or persons in the

community that might pose a risk of harm of some type. A person likely to strike out at

others without provocation, trigger, or reason certainly is within the category of persons

of which the public should be aware. Therefore, it is my opinion that the defendant

should be required to register as a comparable offense under the Kansas Offender

Registration Act."

Juarez objected to the lack of notice with respect to his obligation to register but

neither offered evidence on the issue nor requested additional time to present such

evidence. The district court overruled the objection, although it admitted that "[t]his is the

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first time that I have ever made such a finding outside of the listed factors for the statute

and that's why I gave my reason in the record."

Before concluding, the court continued the sentencing hearing for three weeks to

address restitution. At that time, Juarez again objected to the lack of notice to register but

again offered no evidence and asked for no additional time to present evidence. The court

issued its ruling on restitution and Juarez' sentence became final.

Juarez then appealed. A panel of the Court of Appeals rejected his arguments and

affirmed the district court's order. We granted review solely to consider whether the

notice provided by the district court violated Juarez' right to due process.

DISCUSSION

Juarez argues the district court's failure to notify him of his registration obligation

at the time of plea and conviction—as set out in K.S.A. 2019 Supp. 22-4904(a)(1)(A)—

violated his right to procedural due process under the Fourteenth Amendment to the

United States Constitution. "Procedural due process imposes constraints on governmental

decisions which deprive individuals of 'liberty' or 'property' interests within the meaning

of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge,

424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). "The fundamental requirement

of due process is the opportunity to be heard 'at a meaningful time and in a meaningful

manner.'" Eldridge, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85

S. Ct. 1187, 14 L. Ed. 2d 62 [1965]).

Because Juarez was not informed by the court of his duty to register until almost

six weeks after his conviction, he argues he was denied adequate notice and a meaningful

opportunity to be heard. This argument fails.

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Notice

Assuming, without deciding, the validity of the conviction and the duty to register

for the conviction, we hold that the notice provided Juarez was constitutionally sound.

The "notice" requirement under KORA does not explicitly reference any mechanism by

which an offender may contest the district court's pronouncement of a duty to register.

Instead, K.S.A. 2019 Supp. 22-4904(a)(1)(A) merely requires the district court to

"[i]nform any offender, on the record, of the procedure to register and the requirements of

K.S.A. 22-4905, and amendments thereto" "[a]t the time of conviction or adjudication for

an offense requiring registration as provided in K.S.A. 22-4902, and amendments

thereto." Thus, the "notice" required, within the context of KORA, is the act of informing

a defendant of the fact of his duty to register. And as we have previously observed, "No

provision in KORA creates a consequence for the failure to inform a defendant at the

appropriate time." State v. Marinelli, 307 Kan. 768, 790, 415 P.3d 405 (2018).

However, we also noted that an offender could be prejudiced by a district court's

failure to provide notice of the duty to register if the offender's "only notice would come

from the Act itself," but Juarez has not demonstrated prejudice. 307 Kan. at 791. In this

case, during the six-week period Juarez admittedly did not know he would be required to

register, he remained incarcerated. While he remained incarcerated, Juarez could not

violate KORA because any responsibility to register for his conviction had not yet arisen.

The notice of his duty gave him equal benefit at the time he received it as it would have

given him if he had received the notice at the time of his conviction.

Opportunity to Be Heard

Again assuming, without deciding, the underlying validity of Juarez' conviction

and duty to register—neither of which are before us—we further hold that Juarez was not

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deprived of his opportunity to be heard. That opportunity was presented at both the first

and second sentencing hearings.

The duty to register in this case arose—if at all—as an exercise of judicial

discretion. See State v. Thomas, 307 Kan. 733, 748, 415 P.3d 430 (2018); K.S.A. 2019

Supp. 22-4902(a)(5). This is obvious, because Juarez' crime of conviction is not one

specifically enumerated by K.S.A. 2019 Supp. 22-4902(e)(1) as giving rise to a duty to

register without such judicial discretion.

That said, however, the discretion exercised does not itself require a separate

hearing. K.S.A. 2019 Supp. 22-4904(a)(1)(A). The statute only requires the court to make

certain specific findings on the record. This was done. Juarez' opportunity to be heard

does not require a hearing before those findings are made. He had the opportunity to

object, and he did. However, he did not present additional evidence or argument in an

attempt to dissuade the court from its position, nor did he request additional time to do so.

Admittedly, it remains questionable whether KORA even contemplates the presentation

of such evidence or argument, but that issue is not before us.

Thus, it appears Juarez had the same opportunity to be heard on the district court's

untimely registration order that he would have had if the district court had issued the

order at the time of conviction. Accordingly, we find Juarez has not demonstrated a

denial of a meaningful opportunity to be heard on the district court's registration order.

Again, we express no opinion on the underlying validity of the district court's

registration order, and Juarez does not challenge the constitutionality of the KORA notice

provision itself—just the timeliness of the notice provided by the district court. As we

find that this untimely notice did not deny Juarez either constitutionally adequate notice

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or a meaningful opportunity to be heard, we find no violation of his procedural due

process rights.

Judgment of the Court of Appeals affirming the district court on the sole issue on review is affirmed. Judgment of the district court is affirmed.