legislature intended the Kansas Offender Registration Act
(KORA) to be civil and nonpunitive for all classes of
Because the legislature intended KORA to be a regulatory
scheme that is civil and nonpunitive, only the clearest proof
will suffice to override legislative intent and transform
what has been denominated a civil remedy into a criminal
of the judgment of the Court of Appeals in an unpublished
opinion filed April 25, 2014. Appeal from Shawnee District
Court; Nancy E. Parrish, judge.
Schirer, of Kansas Appellate Defender Office, argued the
cause and was on the briefs for appellant.
E. Litfin, deputy district attorney, argued the cause, and
Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, were with her on the briefs for appellee.
fact necessary to increase the punishment for an offense
other than a prior conviction must be established by a guilty
plea or proved beyond a reasonable doubt to a jury.
United States v. Booker, 543 U.S. 220, 244, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005); see also Apprendi v.
New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000). In this case, Darnell Lee Huey pleaded
guilty to robbery and aggravated burglary and was ordered to
register as a violent offender under the Kansas Offender
Registration Act (KORA), K.S.A. 22-4901 et seq.,
after a district court judge found he used a deadly weapon to
commit those offenses. This fact was not established by
Huey's guilty pleas. On appeal, Huey argues the
registration requirement violates the
Booker/Apprendi rule because the fact that
he used a deadly weapon should have been found by a jury. The
persuasiveness of his challenge turns on whether KORA's
requirements constitute punishment for his crimes.
court has previously held that KORA's deadly weapon
finding must be admitted through a guilty plea or submitted
to a jury because KORA's requirements constitute
punishment as applied to individuals required to register on
the basis of such a finding. See State v. Charles,
304 Kan. 158, 177, 372 P.3d 1109 (2016). But, as noted in
Charles, its application in subsequent appeals was
in doubt because, on the same day it was decided, this court
overruled the caselaw on which it relied, holding in
State v. Petersen-Beard, 304 Kan. 192, 209, 377 P.3d
1127, cert. denied 137 S.Ct. 226 (2016), that KORA
registration for sex offenders was not cruel and unusual
punishment under the Eighth Amendment to the United States
Constitution. See Charles, 304 Kan. at 179
(acknowledging Petersen-Beard "may influence
whether the KORA holding of this case is available to be
relied upon by violent offenders whose appeals have yet to be
signaled in the Charles decision, we now hold
Charles is not viable authority for Huey or other
violent offenders as to whether KORA is punitive. That issue
may be resolved only upon an evidentiary record supplying the
clearest proof to overcome the legislature's intent that
KORA be a regulatory scheme that is civil and nonpunitive.
Huey raised his challenge as to KORA's claimed punitive
nature for the first time on appeal and did not develop an
evidentiary record in the district court. And without that,
we cannot conduct the appropriate analysis to determine
KORA's alleged punitive effects on violent offenders such
as Huey. Accordingly, we affirm the offender registration
order. See State v. Meredith, 306 Kan.___, ___ P.3d
___ (No. 110, 520, filed August 4, 2017), slip op. at 10.
and Procedural Background
forced his way into an apartment using what was described as
a "'skinny weapon' that had a pistol grip in the
front and rear." He demanded money from the occupants.
When police arrived, Huey was seen fleeing with property
belonging to the resident. He was eventually apprehended-but
no weapon was found.
was charged with aggravated burglary, aggravated robbery,
theft, and criminal possession of a firearm. He agreed to
plead guilty to aggravated burglary and to a reduced charge
of robbery. In exchange, the State agreed to dismiss the
remaining counts and filed an amended complaint as part of
the agreement. The revised charges to which Huey pleaded
guilty did not allege he used a "deadly weapon" to
commit either offense.
plea hearing, the State explained to the district court that
the evidence would show Huey "entered the residence
without permission, " "made a demand . . . wanting
some money, " and "by force or threat of force took
property belonging to [the victim], specifically he took a
couple of bottles of prescription medication . . . ."
The State asked the court ...