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State v. Owens

Court of Appeals of Kansas

January 12, 2018

State of Kansas, Appellee,
v.
Frederick Owens, Appellant.

         SYLLABUS BY THE COURT

         Finding a defendant criminally liable for the failure to pay the $20 registration fee under the Kansas Offender Registration Act violates the defendant's procedural-due-process rights as applied in this case because the defendant had no reasonably available path to get a court finding of indigency.

         Appeal from Wyandotte District Court; Michael A. Russell, judge.

          Ryan Eddinger, of Kansas Appellate Defender Office, for appellant.

          Christopher L. Schneider, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Malone, P.J., Leben, J., and Kevin P. Moriarty, District Judge, assigned.

          LEBEN, J.

         Under Kansas law, convicted sex offenders must register four times a year with their local sheriff. Each time, they must pay the sheriff a $20 registration fee- and failing to pay the fee is a crime.

         Twenty dollars is not a lot of money. But it's easy to imagine circumstances in which a convicted sex offender-publicly identified in the community through this registration-might have trouble getting a job. And other events, like illness or disability, might intervene too.

         Understandably, you can't imprison someone in the United States simply because the person has no money; doing so would violate the Fourteenth Amendment to the United States Constitution. Bearden v. Georgia, 461 U.S. 660, 661, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). So the Kansas Legislature has provided a way for an offender to be excused from having to pay the fee on account of indigency. It's the process for being excused from the $20 registration fee that's at the heart of Frederick Owens' case.

         The statute providing an exception for offenders who can't afford the $20 registration fee applies only when, "prior to the required reporting and within the last three years, [the offender has] been determined to be indigent by a court of law, and the basis for that finding is recorded by the court." (Emphasis added.) K.S.A. 2014 Supp. 22-4905(k)(3). What the statute doesn't do is tell an offender how to get a court determination of indigency before the required reporting period or specifically authorize a court proceeding for that purpose.

         Owens has challenged the constitutionality of this statute-as applied to him-on the ground that he wasn't given procedural due process. Specifically, he argues a denial of due process "by the State's failure to inform him concerning his right to have the registration fee waived and the process he was required to follow to obtain the waiver." We agree that the State didn't provide sufficient process to Owens because the applicable statute didn't explicitly give him a way to get before a judge who could determine whether he was too poor to pay the $20 fee. Because Owens was denied due process, we reverse his convictions.

         With that overview, let's review Owens' case and the issue before us more fully. He's required to register because of a 2003 conviction for aggravated indecent liberties with a child. That triggered the requirement that he register with the sheriff four times a year-and that he pay a $20 registration fee each time. See K.S.A. 2014 Supp. 22-4905(k). Failing to pay the fee is a crime (a misdemeanor the first time, a felony after that). K.S.A. 2014 Supp. 22-4903(c)(3).

         Owens claims he wasn't able to pay the registration fee in January, April, and July 2014 because he had been injured, couldn't work for medical reasons, and also had to make child-support payments. The State responds that Owens could have "request[ed] a court to find that he [was] indigent." The State has not ...


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