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State v. Reed

Supreme Court of Kansas

August 4, 2017

State of Kansas, Appellee,
v.
Marcus D. Reed, Appellant.

         SYLLABUS BY THE COURT

         Registration 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed May 8, 2015.

         Appeal from Sedgwick District Court; John J. Kisner, Jr., judge.

          Carol Longenecker Schmidt, of Kansas Appellate Defender Office, was on the briefs for appellant.

          Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          STEGALL, J.

         At the 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.

         Reed 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.

         Factual and Procedural Background

         In 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.

         Approximately 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.

         In 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 ...


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