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of the judgment of the Court of Appeals in an unpublished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 August 15, 2014. Appeal from Sedgwick District
Court; Clark V. Owens II, judge. Judgment of the Court of
Appeals, affirming in part and dismissing in part the
judgment of the district court, is affirmed. Judgment of the
district court is affirmed.
Heather Cessna, of Kansas Appellate Defender Office, was on
the briefs for appellant.
A. Isherwood, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
State charged Joseph V. Donaldson with one count each of
aggravated kidnapping, aggravated battery, and criminal
threat. The events leading to these charges occurred in June
2011. A jury later convicted him as charged, and after
finding that Donaldson had a criminal history score of A, the
court sentenced him to a total controlling 592-month prison
sentence. By virtue of his aggravated kidnapping conviction,
the court imposed lifetime registration pursuant to the
Kansas Offender Registration Act (KORA), K.S.A. 22-4901
appealed, alleging several errors, including that his
lifetime offender registration violates the Ex Post Facto
Clause. At the time he committed the crimes, Donaldson would
have been subject to registration only if the victim of the
aggravated kidnapping charge was under the age of 18. See
K.S.A. 2010 Supp. 22-4902(a)(4)(B); K.S.A. 2010 Supp.
22-4906(a). After the State charged Donaldson but prior to
trial, our legislature amended KORA in such a way that
Donaldson is currently subject to lifetime registration. See
L. 2011, ch. 95, sec. 6; K.S.A. 2011 Supp. 22-4906(d)(10)
(providing for lifetime registration for any offender who has
been convicted of aggravated kidnapping). According to
Donaldson, because the State did not present any evidence
that the victim was under the age of 18 and because the
pre-2011 version of KORA applied, he should not be subject to
Court of Appeals rejected Donaldson's claim, holding that
registration is not punishment, so the 2011 amendments could
be applied retroactively to him. State v. Donaldson,
No. 109, 671, 2014 WL 4080074, at *11-12 (Kan. App. 2014)
(unpublished opinion). The panel further affirmed his
conviction and sentence, and we granted review solely to
address his ex post facto claim.
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 (No.
110, 277, filed August 4, 2017), slip op at 8.
to prevail, Donaldson 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 (No. 110, 520,
filed August 4, 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. He 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.