offenders seeking to avoid retroactive application of
provisions of the Kansas Offender Registration Act (KORA)
must, in order to satisfy the "effects" prong of
the test set forth in Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963),
produce a record that distinguishes-by the "clearest
proof"- KORA's effect on those classes of offenders
from the Act's effects on sex offenders as a class.
of the judgment of the Court of Appeals in an unpublished
opinion filed June 7, 2013. Appeal from Crawford District
Court; Donald R. Noland, judge. Judgment of the Court of
Appeals affirming the district court is affirmed. Judgment of
the district court is affirmed.
L. Pickering, of Kansas Appellate Defender Office, was on the
brief for appellant.
Michael Gayoso, Jr., county attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.
Wingo pled no contest to one count of second-degree
intentional murder. She committed this offense on May 21,
2010. At that time, the Kansas Offender Registration Act
(KORA), K.S.A. 22-4901 et seq., required those
convicted of second-degree intentional murder to register as
a violent offender for 10 years. K.S.A. 2009 Supp.
22-4902(d)(3); K.S.A. 22-4906(a). By the time the district
court sentenced her in November 2011, however, the
legislature had amended KORA, raising the registration period
to 15 years. See K.S.A. 2011 Supp. 22-4906(a)(1)(G); L. 2011,
ch. 95, sec. 6. The district court sentenced Wingo to 155
months' imprisonment and ordered her to register for 15
January 2012, Wingo filed a pro se motion to modify sentence,
generally asking the court to reconsider her sentence, but
the district court denied the motion, finding that it had
lost jurisdiction over the case. In May 2012, Wingo sent a
letter to the district court stating she wished to appeal
"everything." After issuing an order to show cause,
the Court of Appeals permitted Wingo to take a direct appeal
pursuant to State v. Ortiz, 230 Kan. 733, 735-36,
640 P.2d 1255 (1982).
sole argument on appeal is that requiring her to register for
15 years-as opposed to 10-violates the Ex Post Facto Clause
of the United States Constitution. She contends that at the
very least the public notice provisions of KORA constitute
punishment. The Court of Appeals declined Wingo's
invitations, holding that registration in its entirety is not
punishment. Thus it held that the 2011 amendments could be
applied retroactively to Wingo, and she was required to
register for 15 years. State v. Wingo, 108, 275,
2013 WL 2936088, at *2-3 (Kan. App. 2013) (unpublished
opinion). We granted her petition for review.
recently analyzed KORA in this context using the
intent-effects test set forth by the United States Supreme
Court and concluded lifetime sex offender registration does
not constitute "punishment" for purposes of
applying any provision of the federal Constitution. State
v. Petersen-Beard, 304 Kan. 192, 198-209, 377 P.3d 1127
(2016) (relying on the factors set forth in Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9
L.Ed.2d 644 ). We therefore held that the 2011 version
of KORA could not violate federal prohibitions against cruel
and unusual punishment. See 304 Kan. at 208. And not long
ago, we "explicitly extend[ed] the holding of
Petersen-Beard to apply to ex post facto
challenges." State v. Reed, 306 Kan., P.3d
(2017) (No. 110, 277, filed August 4, 2017), slip op. at 8.
to prevail, Wingo must demonstrate that violent offenders as
a class are sufficiently distinguishable from the class of
sex offenders such that the effects of the law become
punitive rather than civil when applied to violent offenders.
We recently confronted a nearly identical question in
State v. Meredith, 306 Kan., P.3d (2017) (No. 110,
520, filed August 11, 2017). In that case, we declined to
hold that KORA registration is punishment where "the
record . . . is insufficiently developed for [the defendant]
to persuasively argue KORA's allegedly punitive effects
on drug offenders as a class separate and distinct from sex
offenders." Meredith, 306 Kan. at, slip op. at
6; see Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct.
1140, 155 L.Ed.2d 164 (2003) ("Because we
'ordinarily defer to the legislature's stated intent,
' [citation omitted] '"only the clearest
proof" will suffice to override legislative intent and
transform what has been denominated a civil remedy into a
criminal penalty, ' [citations omitted]."); see also
State v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996)
(holding that the legislature's intent in enacting KORA
was to create a nonpunitive civil regulatory scheme); Doe
v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016)
(upholding Myers' determination that the
legislature intended to enact a nonpunitive scheme),
overruled on other grounds by Petersen-Beard, 304
Kan. 192. We further explained in Meredith that such
an inquiry "requires a robust record because the effects
prong of the applicable legal test obliges an appellate court
to premise its legal conclusion on at least some
fact-intensive questions." Meredith, 306 Kan.
at _, slip op. at 10.
claim suffers from the same flaw. She is unable to satisfy
the "clearest proof" standard because the record
below has not been sufficiently developed. As a result, we
cannot-at this time-hold that KORA's registration
requirements as applied to violent offenders are punishment
and subject to the limitations of the Ex Post Facto Clause.