Wednesday, March 29, 2006

Sex offenders register in Topeka, not Wichita

Nathan Webb won in State v. McElroy, No. 92,968 (Kan. March 17, 2006), reversing a conviction for failure to register as a sex offender from Sedgwick County. The KSC reversed on two bases: defective complaint and improper venue. The first of these bases is a little surprising because the appellate standard of review is pretty bad for defective complaint issues raised for the first time on appeal (as compared with a great standard of review if raised in the district court by a motion to arrest judgment) and even more surprising because Nathan actually hadn’t raised it as a defective complaint issue (because it is a pretty bad standard, see supra). But the KSC morphed Nathan’s instruction issue and noted that the complaint is "so defective that it does not, by an reasonable construction, charge an offense for which the defendant is convicted," and vacated the conviction.

On the venue issue, Mr. McElroy was alleged to have moved from Sedgwick County to California. The KSC also held that venue was not proper in Sedgwick County because the elements of failure to register include a change of address and failure to notify the KBI. Shawnee County (where the KBI repository is located) would clearly have venue with regard to failure to notify the KBI. But the KSC held that moving from a county is only a precursor to the other element: a change of address. Because no change of address occurred in Kansas, venue in Sedgwick County was inappropriate.

There is some pretty good language in McElroy on venue issues as well:
We note that the defendant's failure to object to venue at trial is irrelevant because venue is a matter of jurisdiction. Lack of jurisdiction is not a waivable defense and may be raised for the first time on appeal. Although venue is a question of fact to be determined by the jury, the existence of jurisdiction is a question of law over which this court's scope of review is unlimited. To the extent this case requires statutory interpretation, such interpretation also raises issues of law subject to de novo review on appeal. [citations omitted.]

1 comment:

folsomc said...

I have a case pending before the COA with similar facts. However, it was a sentencing appeal from a guilty plea. Nonetheless, I recently filed a motion for summary disposition. I argued that the conviction should be vacated because Sedgwick County never had jurisdiciton to take the plea. Apparently, Sedgwick County agreed with me, as they just filed a response stating as much (after being forced to by the court). Hopefully the COA does as well:)