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of the judgment of the Court of Appeals in an unpublished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 May 9, 2014.
from Shawnee District Court; Richard D. Anderson, judge.
Longenecker Schmidt, of Kansas Appellate Defender Office, was
on the briefs for appellant.
Chadwick J. Taylor, district attorney, Jodi Litfin, senior
assistant district attorney, and Derek Schmidt, attorney
general, were on the briefs for appellee.
December 2010, Kevin Addison Hirschberg sold a bag of
methamphetamine to an undercover officer. He later pled
guilty to one count of possession with intent to sell,
deliver, or distribute methamphetamine. Prior to his plea,
the Kansas Legislature amended the Kansas Offender
Registration Act (KORA), K.S.A. 22-4901 et seq.,
lengthening the amount of time Hirschberg was required to
register as a drug offender from 10 years to 15 years. See L.
2011, ch. 95, sec. 6; K.S.A. 2011 Supp. 22-4906(a)(1)(O).
During the sentencing hearing, Hirschberg asked the court to
impose a 10-year registration period, but the court overruled
the objection and imposed a 15-year period, finding that the
2011 amendments applied retroactively. It ultimately
sentenced him to 40 months' imprisonment and 24
months' postrelease supervision. Hirschberg appealed.
of our Court of Appeals rejected the merits of
Hirschberg's claim that retroactively applying the
amendments to him violates the Ex Post Facto Clause.
State v. Hirschberg, No. 109, 689, 2014 WL 1887646,
at *2 (Kan. App. 2014) (unpublished opinion). It also
disagreed that the district court violated his constitutional
rights pursuant to Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his
prior criminal convictions to increase his sentence without
requiring the State to prove them to a jury beyond a
reasonable doubt. 2014 WL 1887646, at *2 (citing State v.
Ivory, 273 Kan. 44, 46, 41 P.3d 781');">41 P.3d 781 ). We granted
review solely to address the 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, Hirschberg must demonstrate that drug 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 drug offenders. We
recently confronted this 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), cert.
denied 521 U.S. 1118 (1997) (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.
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 drug offenders are punishment and
subject to the limitations of the Ex Post Facto Clause.