BY THE COURT
for sex offenders mandated by the Kansas Offender
Registration Act, K.S.A. 22-4901 et seq., does not
constitute punishment under the Ex Post Facto Clause of the
United States Constitution.
of the judgment of the Court of Appeals in an unpublished
opinion filed May 8, 2015.
from Sedgwick District Court; John J. Kisner, Jr., judge.
Longenecker Schmidt, of Kansas Appellate Defender Office, was
on the briefs for appellant.
J. Maloney, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
time Marcus D. Reed was convicted of aggravated indecent
liberties with a child, the Kansas Offender Registration Act
(KORA), K.S.A. 22-4901 et seq., required him to
register for 10 years. Shortly before Reed's registration
period terminated, the Kansas Legislature added a provision
to KORA tolling the registration period of an offender who
was imprisoned or noncompliant with KORA. During the 10 years
following his conviction, Reed was noncompliant for at least
4 years and 2 months. As a result, his registration period
was extended. During that extended period, Reed committed two
additional offender registration violations.
now contends that the retroactive imposition of this tolling
provision violates the Ex Post Facto Clause of the United
States Constitution. If he is correct, the tolling provision
could not be applied to him and his registration requirement
would have expired prior to his subsequent registration
violations. However, based on our decision in State v.
Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016), we
hold that registration for sex offenders mandated by KORA
does not constitute punishment under the Ex Post Facto
Clause. Thus, we find that no ex post facto violation
occurred and conclude that the tolling provision
retroactively applies to Reed. As such, we affirm.
and Procedural Background
December 1995, Marcus D. Reed was convicted in Cowley County
District Court of aggravated indecent liberties with a child.
Though the record is unclear about his sentence, it appears
that Reed was placed on probation. As a result of his
conviction, Reed was required to register as a sex offender
for 10 years. See K.S.A. 1994 Supp. 22-4902(b)(3) (requiring
registration for aggravated indecent liberties with a child);
K.S.A. 1994 Supp. 22-4906(a) (providing for a first offense,
an offender must register "for a period of 10 years
after conviction, or, if confined, for a period of 10 years
after paroled, discharged or released"). On appeal, Reed
has stipulated that during the 10-year period following his
conviction, he did not comply with KORA's registration
requirements for various periods of time, totaling about 4
years and 2 months.
6 months before Reed's original registration period was
set to expire, the Kansas Legislature amended KORA by adding
a tolling provision for periods of noncompliance and
incarceration. Effective July 1, 2005, House Bill 2314 added
the following language to K.S.A. 22-4906(a)(1):
"The ten-year period shall not apply to any person while
the person is incarcerated in any jail or correctional
facility. The ten-year registration requirement does not
include any time period when any person who is required to
register under this act knowingly or willfully fails to
comply with the registration requirement." L. 2005, ch.
202, sec. 1.
August 2009, Reed pled guilty to offender registration
violations in Sedgwick County District Court that occurred in
May and June 2008. In October 2009, the district court
granted Reed's downward departure motions and sentenced
him to 36 months' probation with an underlying 31-month
prison sentence. Less ...