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NOT DESIGNATED FOR PUBLICATION

No. 123,428

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DESIDERIO MENDOZA,

Appellant.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed December

10, 2021. Affirmed.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., MALONE, J., and JAMES L. BURGESS, S.J.

PER CURIAM: Desiderio Mendoza appeals his sentence following his no-contest 

plea to one count each of aggravated criminal sodomy and rape. The district court 

sentenced him to 310 months' imprisonment with lifetime postrelease supervision. 

Mendoza raises only one issue on appeal, claiming the district court engaged in judicial 

fact-finding to extend his postrelease supervision period, in violation of Apprendi v. New 

Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). For the reasons stated in 

this opinion, we reject Mendoza's claim and affirm the district court's judgment.
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FACTS

On April 8, 2019, the State charged Mendoza with one count of aggravated 

indecent liberties with a child, an off-grid felony, one count of aggravated criminal 

sodomy, a severity level 1 person felony, and one count of aggravated indecent liberties

with a child, a severity level 4 person felony, for crimes he committed against his then 

13-year-old victim. The facts supporting the charges are not relevant to this appeal.

On July 5, 2019, the district court held a preliminary hearing. After the victim 

testified, the State amended the charges to include one count of rape, a severity level 1 

person felony, and several additional sexually violent crimes. Also, at the hearing, the 

State proffered, and Mendoza stipulated, that he was over the age of 18.

On February 3, 2020, Mendoza signed a written plea agreement, in which he 

agreed to plead no contest to one count each of aggravated criminal sodomy and rape, 

severity level 1 person felonies. Each count alleged that the crimes occurred between 

September 2015 and February 2016. In exchange for his plea, the State agreed to dismiss 

the remaining charges. In the plea agreement, Mendoza acknowledged that by pleading 

no contest, he was waiving certain legal rights, including his right to a jury trial on the 

charges. The plea agreement also attested that he was 40 years old. The plea agreement 

stated that Mendoza was subject to the maximum sentence of 230 months' imprisonment 

and lifetime postrelease supervision for each offense.

At the hearing to enter his plea, the judge asked if Mendoza understood what he 

was charged with and what the possible penalties were, and Mendoza said that he did. 

The judge also discussed Mendoza's right to trial with him saying, "You understand that 

you have an absolute right to a trial by jury?" Mendoza answered in the affirmative. The 

judge asked, "Do you understand that at a trial the State would have to prove you guilty 

beyond a reasonable doubt?" Again, Mendoza answered yes. And finally, the judge 
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asked, "Do you understand that by pleading no contest here today you'll be giving up the 

rights that you and I just talked about and there'll be no trial?" Mendoza said yes.

Mendoza pled no contest to aggravated criminal sodomy and rape. After the State recited 

its factual basis, the district court found that Mendoza knowingly, freely, voluntarily, and 

intelligently waived his constitutional rights and accepted the no-contest plea.

On October 22, 2020, the district court sentenced Mendoza to consecutive 

sentences of 155 months' imprisonment for each count, for a controlling sentence of 310 

months' imprisonment with lifetime postrelease supervision. Mendoza timely appealed 

the district court's judgment.

ANALYSIS

On appeal, Mendoza challenges only his lifetime postrelease supervision term, 

claiming the district court engaged in judicial fact-finding to extend his postrelease 

supervision period in violation of Apprendi. The district court ordered lifetime 

postrelease supervision because Mendoza pled no contest and was convicted of two 

sexually violent crimes. Before 2017, K.S.A. 22-3717(d)(1)(G) required lifetime 

postrelease supervision for a defendant convicted of any sexually violent crime. In 2017, 

the statute was amended to require lifetime postrelease supervision for sexually violent 

crimes when the defendant is 18 years or older when the crime was committed.

Mendoza argues the statutory amendment was in response to our Supreme Court's 

decision in State v. Dull, 302 Kan. 32, 61, 351 P.3d 641 (2015), which held mandatory 

lifetime postrelease supervision for juveniles is unconstitutional because it amounts to 

cruel and unusual punishment. Mendoza asserts that although he committed his crimes 

before the statutory amendment was enacted, there is still a constitutional requirement 

that an offender must be 18 years or older for the district court to impose lifetime 

postrelease supervision. Mendoza argues that Apprendi requires this fact to be proven to a 
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jury beyond a reasonable doubt. Because there was no jury finding that Mendoza was 18 

years or older when he committed his crimes and he did not knowingly waive his right 

for a jury to make this finding for sentencing purposes, Mendoza argues that this court 

must vacate the lifetime postrelease order and remand for resentencing.

The State argues that Mendoza never contested and affirmatively acknowledged 

that he was an adult over the age of 18 and therefore his claim has no merit. The State 

also argues that even if the district court erroneously found that Mendoza was over the 

age of 18, it amounted to a harmless error.

Whether a district court violated a defendant's constitutional rights as described 

under Apprendi at sentencing raises a question of law subject to unlimited review. State v. 

Huey, 306 Kan. 1005, 1009, 399 P.3d 211 (2017). Mendoza correctly asserts this court 

can consider his claim for the first time on appeal because it involves a question of law 

based on undisputed facts. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

In Apprendi, the United States Supreme Court said: "Other than the fact of a prior 

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 

at 490. The Court later expanded the Apprendi rule in Alleyne v. United States, 570 U.S. 

99, 103, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), by holding that "any fact that 

increases the mandatory minimum is an 'element' that must be submitted to the jury."

Generally, a person must be sentenced by the sentencing provisions in effect when 

the crime is committed. State v. McLinn, 307 Kan. 307, 337, 409 P.3d 1 (2018). Mendoza

committed his crimes between September 2015 and February 2016, so K.S.A. 2015 Supp. 

22-3717 applied to his convictions. The relevant subsections of the statute provide:
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"(d)(1) Persons sentenced for crimes, other than off-grid crimes, committed on or 

after July 1, 1993, or persons subject to subparagraph (G), will not be eligible for parole, 

but will be released to a mandatory period of postrelease supervision upon completion of 

the prison portion of their sentence as follows:

(A) Except as provided in subparagraphs (D) and (E), persons sentenced for 

nondrug severity levels 1 through 4 crimes . . . must serve 36 months on postrelease 

supervision.

. . . .

(G) Except as provided in subsection (u), persons convicted of a sexually violent 

crime committed on or after July 1, 2006, and who are released from prison, shall be 

released to a mandatory period of postrelease supervision for the duration of the person's 

natural life." K.S.A. 2015 Supp. 22-3717(d)(1)(A) and (G).

Effective July 1, 2017, after Mendoza committed his crimes, K.S.A. 22-

3717(d)(1)(G) was amended to require lifetime postrelease supervision for a defendant 

convicted of a sexually violent crime committed on or after July 1, 2006, when the 

offender was 18 or older when the crime was committed. If the defendant was under 18 

when the sexually violent crime was committed, the postrelease supervision term is 60 

months. K.S.A. 2017 Supp. 22-3717(d)(1)(G).

The Kansas Supreme Court has held that a plea of guilty to a statutorily defined 

sexually violent crime provides a lawful basis to impose an extended postrelease 

supervision period without resort to the type of court-made factual findings disapproved 

by Apprendi. See State v. Walker, 275 Kan. 46, 51, 60 P.3d 937 (2003). Mendoza's 

crimes of conviction—rape and aggravated criminal sodomy—were statutorily defined as 

"'sexually violent crime[s]'" for imposing postrelease supervision. See K.S.A. 2015 Supp. 

22-3717(d)(5)(A), (E). Mendoza does not challenge the district court's findings that his 

crimes were sexually violent. Instead, he argues the district court improperly determined

he was 18 years or older to enhance his postrelease supervision from a term of months to 

lifetime without either proving his age to a jury beyond a reasonable doubt or obtaining a 

waiver from him relinquishing this claimed right.
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Mendoza argues that even though the 2015 version of the statute that he was 

sentenced under does not require a finding that he was over 18 to impose lifetime 

supervision, the Eighth Amendment to the United States Constitution and settled caselaw 

required it. Mendoza cites Dull as authority for this proposition. In that case, Dull was 

charged, convicted, and sentenced to 45 months' imprisonment with lifetime postrelease 

supervision after he pled guilty to aggravated indecent liberties with a child, a crime he 

committed when he was 17 years old. Our Supreme Court vacated the mandatory 

postrelease supervision portion of Dull's sentence holding that mandatory lifetime 

postrelease supervision for juveniles is cruel and unusual punishment. 302 Kan. at 61.

Based on Dull, Mendoza asserts there is a constitutional requirement that an 

offender must be 18 years old or older for the district court to impose lifetime postrelease 

supervision. To be clear, Mendoza does not claim he was a juvenile when he committed 

his crimes. But he argues that Apprendi requires his age to be proven to a jury beyond a 

reasonable doubt before the district court can order lifetime postrelease supervision. 

Mendoza correctly argues that his no-contest plea was not a waiver of this claimed 

requirement because the plea only covered the charged crimes and Mendoza's age was 

not an element of the charged crimes. Mendoza also argues that he did not knowingly 

waive his claimed right under Apprendi for a jury to find he was 18 or older for 

sentencing purposes because the district court never informed him of this right.

But Mendoza's argument ignores a fundamental point of law concerning an 

alleged Apprendi violation. The "'statutory maximum' for Apprendi purposes is the 

maximum sentence a judge may impose solely on the basis of the facts reflected in the 

jury verdict or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303, 

124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The United States Supreme Court has

recognized an exception to the Apprendi rule when the defendant admits a fact. United 

States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) 

("Accordingly, we affirm our holding in Apprendi: Any fact (other than a prior 
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conviction) which is necessary to support a sentence exceeding the maximum authorized 

by the facts established by a plea of guilty or a jury verdict must be admitted by the 

defendant or proved to a jury beyond a reasonable doubt.").

Mendoza acknowledged his age to the district court several times, which renders 

the fact that he was over the age of 18 when he committed his crimes a factual admission 

that does not come under the protection of Apprendi. At the preliminary hearing, 

Mendoza stipulated he was over the age of 18. In the plea agreement Mendoza admitted 

he was 40 years old when he signed the agreement, which would have made him 35 or 36

years old when he committed the crimes. A review of the record also reflects that 

Mendoza provided his age in the written financial affidavit he signed seeking court 

appointed counsel. Additionally, Mendoza's birthdate appeared on his notice to register as 

an offender; and the presentence investigation report listed Mendoza's age as 37 when he 

was charged. Mendoza never objected to or corrected any of these documents.

Mendoza's admission to his age is fatal to his argument. As Mendoza concedes,

many panels of this court have dispatched identical challenges to lifetime postrelease 

supervision based on undisputed evidence in the record of the defendants admitting their 

adult age. See State v. Schmeal, No. 121,221, 2020 WL 3885621, at *8-9 (Kan. App. 

2020) (unpublished opinion), rev. denied 312 Kan. 900 (2020); State v. Haynes, No, 

120,533, 2020 WL 741,458, at *2-3 (Kan. App. 2020) (unpublished opinion), rev. denied

312 Kan. 896 (2020); State v. Zapata, No. 120,529, 2020 WL 741486, at *8-9 (Kan. App.

2020) (unpublished opinion), rev. denied 312 Kan. 901 (2020); State v. Cook, No. 

119,715, 2019 WL 3756188, at *2 (Kan. App. 2019) (unpublished opinion), rev. denied

312 Kan. 895 (2020). We find the reasoning in these decisions to be persuasive.

Given Mendoza's repeated admissions throughout the proceedings about his age,

this case falls under the exception to the Apprendi rule. Based on the nature and timing of 
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his crimes, the district court did not err in finding that Mendoza is subject to lifetime 

postrelease supervision under K.S.A. 2015 Supp. 22-3717(d)(1)(G).

Alternatively, even if we had found an Apprendi error based on the State's failure 

to prove Mendoza's age to a jury beyond a reasonable doubt, or to have the State obtain a 

voluntary waiver from him relinquishing this right, such an error is not structural but 

subject to harmless error analysis. See Washington v. Recuenco, 548 U.S. 212, 222, 126 

S. Ct. 2546, 165 L. Ed. 2d 466 (2006) ("Failure to submit a sentencing factor to the jury, 

like failure to submit an element to the jury, is not structural error."). The Kansas 

Supreme Court has also recognized that an Apprendi error may be subject to harmless 

error review. State v. Reyna, 290 Kan. 666, 681-82, 234 P.3d 761 (2010).

Had the district court committed an Apprendi error here, the logical remedy would 

restore the State and Mendoza to the positions they were in before the error. That remedy 

would give Mendoza the chance to make an informed decision on waiving or exercising 

his right to have a jury determine his age for sentencing purposes. On remand for 

resentencing, even if Mendoza exercised his right to have a jury determine his age for 

sentencing purposes, the State could no doubt prove Mendoza was 18 years old or older 

when he committed his crimes without going beyond the evidence already in the record.

Mendoza does not claim he was a juvenile when he committed his crimes. The record is 

void of any conflicting evidence regarding his age and, as has been established, the 

record is clear he was at least 18 years old when he committed his crimes. Even assuming 

an Apprendi-type error existed based on his age not being submitted to a jury for 

determination, the State has met its burden of showing beyond a reasonable doubt that 

any such error was harmless. See State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011) 

(applying constitutional harmless error standard to trial error).

Affirmed.