of the judgment of the Court of Appeals in an unpublished
opinion filed May 30, 2014.
BY THE COURT
There are three exceptions to the general rule that a new
legal theory may not be asserted for the first time on
appeal: (a) the newly asserted theory involves only a
question of law arising on proved or admitted facts; (b) the
theory's consideration is necessary to serve the ends of
justice or to prevent denial of fundamental rights; and (c)
the district court reached the right conclusion but relied on
the wrong ground or assigned a wrong reason for its decision.
Failing to support an argument with pertinent authority or to
show why it is sound despite a lack of supporting authority
or in the face of contrary authority is akin to failing to
brief an issue. Therefore, an argument that is not supported
with pertinent authority is deemed waived and abandoned.
Further, a point raised incidentally in a brief and not
argued therein is also deemed abandoned.
Appeal from Saline District Court; Rene S. Young, judge.
Judgment of the Court of Appeals affirming the district court
is affirmed on the issue subject to review. Judgment of the
district court is affirmed.
L. Pickering, of Kansas Appellate Defender Office, was on the
brief for appellant.
Christina Trocheck, assistant county attorney, Ellen
Mitchell, county attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
Tappendick pleaded no contest in 2011 to two counts of
aggravated indecent liberties with a child for offenses
committed in 2008. At the time of his plea, the Kansas
Offender Registration Act (KORA), K.S.A. 22-4901 et
seq., required lifetime registration. See K.S.A. 2016
Supp. 22-4906(d)(3). On appeal to the Court of Appeals, he
argued for the first time that the lifetime requirement
violated the Ex Post Facto Clause of the United States
Constitution because at the time of the crimes they would
have required only 10 years' registration. He also
appealed from the district court's denial of his motion
challenging lifetime postrelease supervision as cruel and
unusual punishment, but that issue is not before us on
State objected to the ex post facto claim being considered on
appeal because it was not argued to the district court and,
therefore, not properly preserved. The Court of Appeals panel
agreed with the State. State v. Tappendick, No. 109,
272, 2014 WL 2589712, at *2-3 (Kan. App. 2014) (unpublished
panel correctly observed that constitutional grounds for
reversal asserted for the first time on appeal were not
properly before the court, citing State v. Coman,
294 Kan. 84, 89, 273 P.3d 701 (2012). 2014 WL 2589712, at *2.
It also acknowledged there are three exceptions to this
general rule: (1) the newly asserted theory involves only a
question of law arising on proved or admitted facts and the
issue is finally determinative of the case; (2) resolution of
the question is necessary to serve the ends of justice or to
prevent denial of fundamental rights; or (3) the district
court reached the right conclusion but relied on the wrong
ground or assigned a wrong reason for its decision. 2014 WL
2589712, at *2 (citing In re Estate of Broderick,
286 Kan. 1071, 1082, 191 P.3d 284');">191 P.3d 284  [listing
considering the first two exceptions-the only two Tappendick
mentioned- the panel ultimately declined to address the ex
post facto issue. 2014 WL 2589712, at *3. In exercising its
discretion, the panel first reasoned that the first exception
could not apply because Tappendick failed to assert the ex
post facto issue would be finally determinative of the case,
one of the conditions that must be present for the exception
to apply. It next reasoned Tappendick did not cite
controlling legal authority on the merits of his ex post
facto argument to support his claim that a decision on the
merits would serve the ends of justice or prevent the denial
of fundamental rights. The panel noted contrary authority
showing "the Ex Post Facto Clause generally is not
implicated by the provisions of KORA."
Tappendick, 2014 WL 2589712, at *2 (citing State
v. Myers, 260 Kan. 669, 700, 923 P.2d 1024');">923 P.2d 1024 ). The
panel conceded Myers held "'unlimited
public accessibility to the registered information' . . .
of sex offenders . . . engages ex post facto protection"
but believed that holding was abrogated by Smith v.
Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164
(2003). Tappendick, 2014 WL 2589712, at *2-3 (citing
In re R.M., No. 109, 154, 2013 WL 5870167, at *4
[Kan. App. 2013] [unpublished opinion] ["(A)pplying
offender-registration requirements to past offenses
doesn't violate the Ex Post Facto Clause."]).
issue statement of his petition for review, Tappendick
asserted only that "the Court of Appeals incorrectly
ruled that Mr. Tappendick could not raise an Ex Post Facto
claim for the first time on appeal." Then, as he did in
his Court of Appeals brief, he merely quoted the three
exceptions and asserted without any explanation or argument
that this issue invoked the first two of these exceptions. He
made no effort to challenge the panel's stated reasons
for concluding he failed to satisfy the exceptions'
requirements. No supplemental brief was filed as permitted by
Supreme Court Rule 8.03(h)(3) (2017 Kan. S.Ct. R. 53). Under
the circumstances, this is inadequate.
court has held that a party must "challenge on petition
for review a dispositive procedural holding of the Court of
Appeals." State v. Allen, 293 Kan. 793, Syl.
¶ 3, 268 P.3d 1198 (2012); see also Rule 8.03(h)(1) (a
party must allege an issue was decided erroneously by the
Court of Appeals for the issue to be properly before the
Supreme Court on petition for review). And even if we were to
generously consider Tappendick's petition for review as
referring to the panel's ultimate conclusion that his
assertions were insufficient to satisfy an exception, he
fails to rebut the panel's rationale with any argument or
authority. See Friedman v. Kansas State Bd. of Healing
Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013) ("A
failure to ...