                           NOT DESIGNATED FOR PUBLICATION

                                              No. 121,444

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           CLINT E. WOODS,
                                              Appellant,

                                                    v.

                                          STATE OF KANSAS,
                                              Appellee.


                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; ROBB W. RUMSEY, judge. Opinion filed July 31, 2020.
Affirmed.


        Wendie C. Miller, of Kenneth B. Miller, Atty at Law, LLC, of Wichita, for appellant.


        Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before ARNOLD-BURGER, C.J., BRUNS and SCHROEDER, JJ.


        PER CURIAM: Clint E. Woods—an inmate in the custody of the Kansas
Department of Corrections—appeals the district court's summary dismissal of his second
motion for habeas corpus relief pursuant to K.S.A. 60-1507. On appeal, Woods contends
that the district court erred in summarily dismissing his motion and in failing to address
the substantive arguments that he raised. Based on our review of the record, we conclude
that Woods was not in custody in this case at the time he filed his motion. Moreover, we
find it to be untimely. Thus, we affirm the district court's summary dismissal of Wood's
K.S.A. 60-1507 motion.

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                                             FACTS

         On October 3, 1997, Woods—who was certified as an adult—was charged with
two counts of aggravated criminal sodomy in Sedgwick County case No. 97 CR 1963. On
December 8, 1997, he entered a Brady plea to the amended charge of aggravated indecent
solicitation of a child. On January 6, 1998, the district court sentenced Woods to 19
months in prison, suspended to 24 months on probation. However, Woods' probation was
subsequently revoked and he was ordered to serve his underlying prison sentence. He
completed his sentence in the 1997 case on August 5, 2003.


         On October 24, 2017—nearly 20 years after his conviction—Woods filed a K.S.A.
60-1507 motion in which he sought to withdraw his plea in the 1997 case. The motion
was summarily dismissed by the district court and Woods did not appeal. Instead, Woods
filed a second K.S.A. 60-1507 motion on April 19, 2018, which is the subject of this
appeal.


         The district court summarily dismissed Wood's second motion on May 29, 2018,
concluding that the motion was untimely and that Woods had failed to demonstrate
manifest injustice to justify the untimely filing. On November 8, 2018, the district court
overruled a "Motion to Alter or Amend" and specifically found: "The Complaint is not
defective. Defendant pled to an amended charge. The Sentence imposed is within the
range provided in the Kansas Sentencing guidelines." Thereafter, Woods appealed to this
court.


                                           ANALYSIS

         As a threshold matter, the State contends that the district court lacked jurisdiction
to consider Woods' second K.S.A. 60-1507 motion because he was no longer in custody
in the 1997 case that is the subject of his K.S.A. 60-1507 motion. As noted above, Woods


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completed the sentence in that case in 2003. Although Woods is currently incarcerated,
he is in prison serving a sentence in another criminal case that is not related to this
appeal.


       The language of K.S.A. 60-1507 governs jurisdiction over motions filed under its
provisions. See Kan. Const. art. 3, § 6(b); see Mundy v. State, 307 Kan. 280, 286, 408
P.3d 965 (2018). The existence of jurisdiction is a question of law over which we
exercise unlimited review. State v. Marinelli, 307 Kan. 768, 774, 415 P.3d 405 (2018).
"If the district court's order was entered without jurisdiction, then an appellate court does
not acquire jurisdiction on appeal." State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204
(2004).


       K.S.A. 2019 Supp. 60-1507(a), which provides:


               "A prisoner in custody under sentence of a court of general jurisdiction claiming
       the right to be released upon the ground that the sentence was imposed in violation of the
       constitution or laws of the United States, or the constitution or laws of the state of
       Kansas, or that the court was without jurisdiction to impose such sentence, or that the
       sentence was in excess of the maximum authorized by law, or is otherwise subject to
       collateral attack, may, pursuant to the time limitations imposed by subsection (f), move
       the court which imposed the sentence to vacate, set aside or correct the sentence."
       (Emphasis added.)


       In other words, the relief available under K.S.A. 60-1507 is only available while a
person is "in custody under sentence." Mundy v. State, 307 Kan. at 286. Further, "a
prisoner's rights must be determined as of the date the 60-1507 motion is filed." Mundy,
307 Kan. at 287. Where a prisoner is no longer serving the sentence that he or she is
attacking, K.S.A. 60-1507 relief is foreclosed. State v. Smith, 311 Kan. 109, 122, 456
P.3d 1004 (2020).



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       Here, Woods does not contest that he had completed both the prison and probation
components of his 1997 sentence many years before he filed either of his K.S.A. 60-1507
motions relating to that case. Rather, he contends that he was still in "custody" in the
1997 case because he has a continuing obligation to register as a sex offender under the
Kansas Offender Registration Act (KORA) and because he still owed "restitution" when
he filed his motion.


       Contrary to Woods' contention, Kansas appellate courts have frequently held that
the registration requirement under KORA is not a "punishment" or considered to be a part
of a criminal defendant's sentence. See State v. Thomas, 307 Kan. 733, Syl. ¶ 1, 415 P.3d
430 (2018) (violent offender registration); State v. N.R., 57 Kan. App. 2d 298, Syl. ¶¶ 3-
4, 451 P.3d 877 (2019) (sexual offender registration). As this court has found, the
registration requirement is intended as a civil regulatory scheme rather than as a
punishment. 57 Kan. App. 2d at 308-09. As a result, Woods' ongoing duty to register as a
sex offender cannot be considered custodial for purposes of establishing jurisdiction to
consider his K.S.A. 60-1507 motion.


       Woods also argues that he was in "custody" when he filed his K.S.A. 60-1507
motion because he was still required to make "restitution" payments. Although Woods
was ordered to pay costs and fees as part of his sentence, we find that no order of
restitution was entered in this case. See State v. Gentry, 310 Kan. 715, 738, 449 P.3d 429
(2019) (It is well-settled that "restitution and court costs are two different things.").
Moreover, Woods has not cited any authority to establish that an obligation to pay court
costs and fees is custodial for the purposes of establishing jurisdiction to hear a K.S.A.
60-1507 motion. See City of Wellington v. Mendia, No. 107,747, 2013 WL 1010585, at
*2 (Kan. App. 2013) (unpublished opinion). As such, we do not find this argument to
have merit.




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       Consequently, based on our review of the record on appeal, we find that Woods
was not in custody under his 1997 sentence at the time he filed his K.S.A. 60-1507
motion, which is the subject of this appeal. As such, the relief he is requesting is
foreclosed. Furthermore, even if he had still been in custody under his 1997 sentence, we
find that the motion was untimely filed and has failed to establish manifest injustice to
justify his belated filing. Likewise, Woods has not made a colorable clam of actual
innocence. See K.S.A. 2019 Supp. 60-1507(f)(2)(A).


       We, therefore, conclude that the district court did not err in summarily dismissing
Wood's K.S.A. 60-1507 motion.


       Affirmed.




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