State of Kansas, Appellee, v. William Jamal Alexander, Appellant. (2026)

MEMORANDUM OPINION

William Jamal Alexander appeals from his sentence for aggravated burglary, arguing the district court failed to make the appropriate finding to require him to register as a violent offender at the correct time, improperly engaged in judicial factfinding by making such finding to require registration, denied him allocution, and improperly enhanced his sentence based on his criminal history. After a careful review of the record, we find no reversible error by the district court and affirm.

Factual and Procedural Background

The State charged Alexander with kidnapping, aggravated robbery, aggravated burglary of a dwelling, criminal possession of a firearm, and burglary of a dwelling for crimes committed in April 2023.

The State and Alexander reached a plea agreement, in which Alexander agreed to plead no contest to aggravated burglary of a dwelling. In exchange, the State agreed to dismiss the remaining charges. With respect to sentencing, Alexander was free to argue for a durational departure, and the State agreed to seek a mid-box number at sentencing.

At the plea hearing, Alexander pled no contest to aggravated burglary. During the recitation of the factual basis, the State informed the district court that the victim reported Alexander “pulled out a handgun from [Alexander's] waist,” and “the handgun fell to the ground.” When it did so, the magazine and a spring fell out of the gun. At no point during the plea hearing did the district court make a deadly weapon finding or inform Alexander of his duty to register.

Before sentencing, Alexander filed a motion for a dispositional and/or durational departure. He argued that much of his criminal history was at least 10 years old. He asserted he had pursued the possibility of structured sober living and had employment opportunities and a willing support system in the community. Alexander requested probation or, in the alternative, a durational departure to 81 months’ imprisonment instead of his presumptive 162-month prison sentence.

At sentencing, the district court asked if it needed to make a deadly weapon finding. The State requested the finding. Alexander objected because he believed the firearm was unnecessary for the aggravated burglary conviction, so the court had discretion to decline to make the finding.

Alexander's counsel argued for a durational departure based on Alexander's acceptance of responsibility and willingness to accept a plea that did not ask the court to consider probation. He contended that “all but one” of Alexander's person felonies were 10 or more years old and that addiction was an underlying factor to his criminal history. Counsel asserted that, even accounting for Alexander's time served pending resolution of the case, an 81-month sentence would still require approximately five years in the Department of Corrections. Counsel concluded:

“We believe that because of the age of his criminal history, his behavior since this time, the underlying addiction issues which can be addressed on post-release, and potentially better addressed in a community setting rather than an incarceration setting and that would benefit him to have a shorter sentence. I understand that the sentencing grid is inflexible on this point and that's why we have to ask for a departure, but I do believe a reduction of that sentence would be warranted because he has spent a considerable time incarcerated and has a very solid plan going forward to do so and frankly has taken a great deal of responsibility in this matter.”

The victim explained to the court what happened and told the court, “If he's getting better I'm all for that, but at the same time I think things need to happen because I don't know if I'm the first guy this has happened to or not, but it was quite an experience for me.”

The State recommended the standard 162-month prison sentence. It asserted that the periods of time in Alexander's criminal history without convictions were when he was in prison. The State noted that Alexander had 19 convictions in his criminal history and already received a benefit from the dismissal of the kidnapping charge.

At no point during sentencing did the district court provide Alexander with an opportunity for allocution.

The district court made a deadly weapon finding “that a firearm was associated with this crime ․ based on statements of counsel as well as statements from [the victim].” The district court also denied Alexander's motion for departure, noting the violent nature of the offense. The district court found that the gaps in Alexander's criminal history were the result of him being in prison and that when Alexander was not in prison, he was “committing residential burglaries or aggravated batteries.” The district court sentenced Alexander to 162 months’ imprisonment.

Alexander appealed.

Analysis

I. The District Court Did Not Err When It Required Alexander to Register as a Violent Offender

Preservation

On appeal, Alexander argues the district court failed to make a deadly weapon finding during his plea hearing and, as a result, he does not have to register as a violent offender. Although he raises this argument for the first time on appeal, he asserts it is a question of law presented on admitted facts. We agree this is a question of law and will address this argument. See State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021) (despite preservation requirement, claim raised for first time on appeal may be considered if it is question of law based on proved or admitted facts and is determinative of case).

Standard of Review

Statutory interpretation presents a question of law over which appellate courts have unlimited review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024).

Discussion

Alexander acknowledges he was convicted of a person felony. And he acknowledges the district court made a deadly weapon finding at sentencing. But he argues the district court made the finding too late; the deadly weapon finding had to have been made at the time of conviction to be effective.

Alexander cites Justice Stegall's concurring opinions in State v. Unruh, 320 Kan. 260, 565 P.3d 825 (2025), and State v. Juarez, 312 Kan. 22, 470 P.3d 1271 (2020), to support his argument. In Unruh, Justice Stegall asserted that “[t]he district court failed to make the necessary findings at the time of conviction that would have rendered Unruh an ‘offender’ as a matter of law.” 320 Kan. at 268 (Stegall, J., concurring); see Juarez, 312 Kan. at 28 (Stegall, J., concurring) (same). Despite his reliance on Justice Stegall's concurring opinions in Unruh and Juarez, Alexander's argument is not persuasive.

The most fundamental rule of statutory interpretation is that the intent of the Legislature governs if that intent can be ascertained. Appellate courts “must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings.” State v. Keys, 315 Kan. 690, 698, 510 P.3d 706 (2022). When a statute is plain and unambiguous, appellate courts “should not speculate about the legislative intent behind that clear language, and ․ should refrain from reading something into the statute that is not readily found in its words.” 315 Kan. at 698. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the Legislature's intent. See State v. Betts, 316 Kan. 191, 198, 514 P.3d 341 (2022).

A “ ‘[v]iolent offender’ ” is, in relevant part, “any person who: ․ on or after July 1, 2006, is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony.” K.S.A. 22-4902(e)(2). Under K.S.A. 22-4904(a)(1)(A): “At the time of conviction or adjudication for an offense requiring registration as provided in K.S.A. 22-4902, and amendments thereto, the court shall: (A) Inform any offender, on the record, of the procedure to register and the requirements of K.S.A. 22-4905, and amendments thereto.”

K.S.A. 22-4902(e)(2) requires the district court to make “a finding on the record that a deadly weapon was used in the commission” of a person felony. The statute does not state that this finding must occur at the time of conviction. This court cannot read language into a statute. Keys, 315 Kan. at 698.

Notably, the Legislature did not include K.S.A. 22-4904(a)(1)(A)’s language “[a]t the time of conviction or adjudication” for an offense requiring registration in K.S.A. 22-4902(e)(2). When the Legislature shows the ability to use certain language in one statute, an appellate court must assume that the failure to do so in another statute is intentional. See State v. Nambo, 295 Kan. 1, 4-5, 281 P.3d 525 (2012) (utilization of active voice and specification of individual actor in K.S.A. 21-4618[a] [Torrence 2007] suggests absence of active voice and individual actor in K.S.A. 22-4902[a][7] [Torrence 2007] was intentional). The Legislature understood how to require a deadly weapon finding be made at the time of conviction or adjudication; it chose not to include that language in the definition of a violent offender in K.S.A. 22-4902(e)(2).

Here, State v. Marinelli, 307 Kan. 768, 415 P.3d 405 (2018), not Justice Stegall's concurring opinions in Unruh and Juarez, controls. In Marinelli, the district court first ordered Marinelli to register as a violent offender at sentencing, and the court only made a deadly weapon finding in the sentencing journal entry. On appeal, the Supreme Court noted that there was no mention of KORA or Marinelli's duty to register at his plea hearing. But the Supreme Court concluded it had “no difficulty” finding Marinelli was a violent offender because “[t]he charge specified the deadly weapon used in the commission of the crime was a knife, the State explained that at the plea hearing, and the defense agreed with the State's factual rendition.” 307 Kan. at 788-89. The court found that the record supported the district court's finding that Marinelli was a violent offender and that the “essential factual finding was made by checking a box labeled ‘Yes’ next to the question asking whether an offender committed the current crime with a deadly weapon.” 307 Kan. at 788-89.

Our Supreme Court then addressed whether Marinelli's registration requirement must be vacated because the district court failed to address the registration requirement until sentencing. The court noted that, in 2012, the Legislature modified K.S.A. 22-4904 to require district courts to explain registration requirements at the time of conviction instead of at sentencing. See L. 2012, ch. 149, § 3. And it concluded that the “legislative context and history suggests the timing is to help ensure offenders know of their registration obligations.” 307 Kan. at 790. The Marinelli court held:

“No provision in KORA creates a consequence for the failure to inform a defendant at the appropriate time. We have established that a person's status as an ‘offender’ might turn on a court determination, but the Act itself imposes the duty to register upon any such person, rather than the court's order.” 307 Kan. at 790.

The Kansas Supreme Court and other panels of this court have considered deadly weapon factual findings that occurred at sentencing. See State v. Carter, 311 Kan. 206, 210, 459 P.3d 186 (2020) (factual finding made at sentencing and on journal entry of sentencing, not at the time of conviction); State v. Spillman, No. 126,995, 2024 WL 4719573, at *2 (Kan. App. 2024) (unpublished opinion) (no express deadly weapon finding at plea or sentencing but journal entry of sentencing included deadly weapon finding), rev. denied 321 Kan. 794 (2025); State v. Dirksen, No. 126,324, 2024 WL 3084512, at *4 (Kan. App. 2024) (unpublished opinion) (district court made “express findings” on use of deadly weapon during sentencing and journal entry of sentencing reflected those findings), rev. granted 320 Kan. 863 (2025).

Alexander seeks to distinguish Marinelli. He argues the Supreme Court “made a point of noting the district court's plea hearing finding that the defendant was guilty of a crime that elementally required the use of a deadly weapon.” As such, he contends “our Supreme Court appeared to hold that a ‘deadly weapon’ finding was made at the time of a plea hearing, as evidenced by subsequent journal entry notations.” But Marinelli states the opposite. In concluding that Marinelli was a violent offender, the Supreme Court stated: “We emphasize we are not simply looking to whether use of a deadly weapon is an element of the convicted crime. Rather, the uncontroverted record shows the court's finding is supported.” 307 Kan. at 789.

Finally, Alexander cites State v. Thomas, 307 Kan. 733, 415 P.3d 430 (2018), to suggest that postconviction journal entry findings were insufficient to trigger registration obligations. But Thomas is distinguishable. The jury found Thomas guilty of aggravated battery with a deadly weapon. The district court sentenced Thomas, ordered her to pay restitution, and advised her she had a duty to register under KORA. On appeal, another panel of this court vacated the registration requirement because the district court did not make a specific deadly weapon finding but remanded for the district court to make the appropriate finding. 307 Kan. at 736. Thomas petitioned for review and asserted the Court of Appeals did not have authority to remand her case to the district court for a deadly weapon finding because she had been sentenced to a legal sentence. The State did not cross-petition for review.

On review, the Supreme Court concluded that, without the necessary deadly weapon factfinding, “the defendant cannot be an offender under KORA, and the obligation to register never springs into existence.” 307 Kan. at 749. The court also found that the absence of a deadly weapon finding was not “a sentencing error amenable to ․ remand” and, because offender status is not a part of a criminal sentence, there was no sentencing error to be remanded to the district court. 307 Kan. at 750.

Alexander also filed a Rule 6.09 letter, arguing that, in State v. Dewey, No. 127,243, 2026 WL 1265674 (Kan. App. 2026) (unpublished opinion), another panel of this court found merit in the argument that the failure to make a registration-triggering finding of fact at the time of Dewey's conviction meant he was not subject to offender registration.

Dewey, however, is distinguishable. In that case, there was confusion regarding what, if any, type of registration Dewey was subject to. At the plea hearing, the district court did not make any findings requiring Dewey to register. At sentencing, the district court simply stated, “ ‘I make a finding in regard to [KORA registration] and that is my understanding for this conviction is it requires a 15-year registration.’ ” 2026 WL 1265674, at *10. But the panel noted this language was ambiguous. The panel ultimately concluded:

“Dewey's offense was not listed in K.S.A. 22-4902 and his obligation to register could only be triggered by a judicial determination that he should register even though his offense was not a KORA-listed offense. From the sentencing transcript, it is unclear whether the district court ever made this finding at all. Certainly, the district court did not make the finding ‘[a]t the time of conviction or adjudication’ as K.S.A. 22-4904(a)(1)(A) implies is a requirement to trigger the obligation to register. See Juarez, 312 Kan. at 30 (Stegall, J., concurring).” 2026 WL 1265674, at *11.

As in Marinelli, and unlike Thomas and Dewey, the district court here made the necessary finding of fact to trigger registration. The district court made a deadly weapon finding at sentencing, “finding that a firearm was associated with this crime.” And, as in Marinelli, the State provided a factual basis supporting the finding, which included Alexander's brandishing of a handgun during the aggravated burglary. The journal entry of sentencing also included the deadly weapon finding and included the Registration Requirement addendum requiring Alexander to register.

We are duty-bound to follow Kansas Supreme Court precedent unless there is some indication that the Supreme Court is departing from its previous position. State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022). Justice Stegall's concurring opinions in Unruh and Juarez are proof the Kansas Supreme Court is not departing from Marinelli. In fact, in Juarez, Justice Biles concurred to expressly state his belief that Marinelli controlled. Juarez, 312 Kan. at 27 (Biles, J., concurring). We therefore follow Marinelli.

II. The District Court Did Not Violate Alexander's Constitutional Rights Through Judicial Factfinding Because Offender Registration Is Nonpunitive

Standard of Review

“ ‘Whether a defendant's constitutional rights as described under Apprendi [v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),] were violated by a district court at sentencing raises a question of law subject to unlimited review.’ ” State v. Nunez, 319 Kan. 351, 353, 554 P.3d 656 (2024).

Discussion

On appeal, Alexander argues for the first time on appeal that KORA registration is punitive and judicial factfinding of a deadly weapon violates Apprendi. He acknowledges that this issue has been adversely decided by our Supreme Court in State v. Huey, 306 Kan. 1005, 1005-06, 399 P.3d 211 (2017), and he raises it mainly to preserve it for Supreme Court review.

In Huey, our Supreme Court concluded that KORA was intended “to be civil and nonpunitive for all classes of offenders currently subject to its provisions.” 306 Kan. at 1009. As a result, only “the clearest proof” that KORA's requirements were punitive would override the Legislature's intent and require the Supreme Court to treat KORA as a criminal penalty. 306 Kan. at 1010. Huey raised his Apprendi challenge for the first time on appeal; he did not offer evidence, and the district court made no findings on this issue. For this reason, the Supreme Court determined that “we cannot conclude the effects of KORA's registration requirements as to violent offenders are so punitive as to override the legislature's intent that KORA be a civil remedy.” 306 Kan. at 1010.

We are duty-bound to follow Kansas Supreme Court precedent unless there is some indication that the Supreme Court is departing from its previous position. Patton, 315 Kan. at 16. Thus, we find KORA is not punitive and Apprendi does not apply.

III. The District Court's Failure to Inquire About Allocution Was Harmless

On appeal, Alexander argues the district court violated his statutory right to allocution. He asserts the district court's error is not harmless because he “may have been able to respond to the district court's concerns, in a manner that placed himself in a better light before the court, had he only been permitted an opportunity to do so.” Alexander does not identify what he would have said during allocution.

The State concedes that the district court failed to ask Alexander if he wished to make a statement on his own behalf in mitigation of punishment. However, it contends the error was harmless because Alexander had a criminal history of A and suggests Alexander “is a career criminal.” It notes that, by age 34, Alexander had been convicted of 17 different adult crimes, that he committed the current crime while on probation, and that he committed the crime with a firearm.

Standard of Review

Allocution is a statutory, not constitutional, right. State v. Salary, 309 Kan. 479, 487, 437 P.3d 953 (2019). When applying the harmless error test to an error that implicates a statutory right, the court must determine whether “there is a ‘ “reasonable probability that error will or did affect the outcome of the trial in light of the entire record.” ’ ” State v. Campbell, 317 Kan. 511, 518, 532 P.3d 425 (2023). The State, as the party benefiting from the error, bears the burden of proof. See Salary, 309 Kan. at 487.

Discussion

Under K.S.A. 22-3424(e)(4), “[b]efore imposing sentence the court shall ․ address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant's own behalf and to present any evidence in mitigation of punishment.”

Though not identical, another panel of this court addressed a similar situation in State v. Neiswender, No. 125,399, 2023 WL 8109701 (Kan. App. 2023) (unpublished opinion). There, Neiswender pled guilty to possession with intent to distribute and possession of methamphetamine. As part of the plea agreement, the State agreed to open sentencing. Before sentencing, Neiswender filed a motion for a dispositional or durational departure based on his low criminal history score, acceptance of responsibility, lack of issues while on bond, and attending outpatient treatment. At sentencing, Neiswender's counsel made many of these same arguments while requesting a departure. The district court sentenced Neiswender without first giving him the opportunity to provide allocution. After it pronounced the sentence, Neiswender had the opportunity to make a statement on his behalf. His statement after sentencing reflected the arguments in his motion and made by his counsel during argument on the departure motion.

On appeal, Neiswender argued the denial of his right to allocution was not harmless because he “ ‘was not given the opportunity to persuade the district court that he was deserving of a departure to probation.’ ” 2023 WL 8109701, at *3. The panel deemed the error harmless because the district court allowed Neiswender to make a statement, albeit after sentencing, and the statements were “nearly identical” to the arguments made by his counsel. 2023 WL 8109701, at *3. The panel concluded that “the district court had previously considered the arguments when rejecting Neiswender's motion for dispositional departure” so there was “no reasonable probability that the error affected the outcome in light of the entire record.” 2023 WL 8109701, at *4.

In other cases, panels of this court have found the failure to identify what information would have been provided affects the harmless error analysis. See State v. Jefferson, No. 116,268, 2017 WL 3113038, at *2 (Kan. App. 2017) (unpublished opinion); City of Manhattan v. Steiner, No. 108,339, 2013 WL 1339918, at *1 (Kan. App. 2013) (unpublished opinion).

Here, Alexander's counsel requested a durational departure to half of the standard sentence. Counsel continued:

“We believe that because of the age of his criminal history, his behavior since this time, the underlying addiction issues which can be addressed on post-release, and potentially better addressed in a community setting rather than an incarceration setting and that would benefit him to have a shorter sentence. I understand that the sentencing grid is inflexible on this point and that's why we have to ask for a departure, but I do believe a reduction of that sentence would be warranted because he has spent a considerable time incarcerated and has a very solid plan going forward to do so and frankly has taken a great deal of responsibility in this matter.”

The district court considered these arguments before finding that Alexander's periods without criminal history were when he was in prison. The district court found that Alexander had shown himself “to be a very dangerous person in the community if [he is] not completely sober.” On appeal, Alexander does not identify what other information he would have presented if he had not been denied allocution. Based on these findings, and Alexander's failure to identify any other information he would have raised during sentencing, there is no reasonable probability that the denial of allocution affected the outcome in light of the entire record.

IV. The District Court Did Not Err by Using Alexander's Criminal History to Determine His Sentence

Standard of Review

“ ‘Whether a defendant's constitutional rights as described under Apprendi were violated by a district court at sentencing raises a question of law subject to unlimited review.’ ” Nunez, 319 Kan. at 353.

Discussion

On appeal, Alexander argues the district court violated his federal and state constitutional rights by “elevat[ing his] mandatory prison term one full decade on the basis of judicial prior convictions findings.” Alexander acknowledges this issue has been adversely decided by our Supreme Court in State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002), where the Kansas Supreme Court concluded that a prior conviction is not an element of the crime and “need not be presented in the indictment and proven to a jury in order to be used by the court to increase the sentence imposed.” He raises the issue largely to preserve it for Supreme Court review.

Again, we are duty-bound to follow Kansas Supreme Court precedent unless there is some indication that the Supreme Court is departing from its previous position. Patton, 315 Kan. at 16. The Kansas Supreme Court is clear: The use of criminal history to calculate the presumptive KSGA sentence does not violate due process as interpreted by Apprendi. See State v. Sullivan, 307 Kan. 697, 708, 414 P.3d 737 (2018) (reaffirming Ivory, 273 Kan. at 46-47). Alexander is thus not entitled to relief.

Affirmed.

Per Curiam: