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of the judgment of the Court of Appeals in an unpublished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 8, 2015. Appeal from Riley District Court;
John F. Bosch, judge.
Carver-Allmond, of Capital Appellate Defender Office, was on
the briefs for appellant.
Bethany C. Fields, deputy county attorney, Barry Wilkerson,
county attorney, and Derek Schmidt, attorney general, were on
the brief for appellee.
2009, Thomas Burdick pled no contest to one count of
distribution of cocaine. Pursuant to a plea agreement, the
district court sentenced him to 30 months' imprisonment
and ordered 24 months' postrelease supervision. At the
time he committed the crime, Burdick was required to register
as a drug offender pursuant to the Kansas Offender
Registration Act (KORA), K.S.A. 22-4901 et seq. See
K.S.A. 2008 Supp. 22-4902(a)(11)(C). Under that version of
KORA, offenders had to register with the county sheriff
"[w]ithin 10 days of the offender coming into any county
in which the offender resides or temporarily resides for more
than 10 days." K.S.A. 22-4904(a)(2).
time Burdick was released from prison in December 2012, the
legislature had changed KORA by requiring offenders to
"register in person upon any commencement, change or
termination of residence location . . . within three
business days of such commencement, change or
termination." (Emphasis added.) K.S.A. 2012 Supp.
22-4905(g); see L. 2011, ch. 95, sec. 5 (reducing the time to
update registration to 3 days). Thereafter, Burdick changed
residences several times, and law enforcement arrested him
for failing to timely update his registration.
to trial, Burdick submitted a "motion to dismiss for ex
post facto punishment by 2011 redux of Kansas Offender
Registration Act, " which the court denied. A jury
eventually convicted Burdick of one count of violating KORA
for failing to report a change of residence within 3 business
days between January 9, 2013, and January 11, 2013. Among
Burdick's several complaints on appeal, he claimed that
applying the 2011 KORA amendments to him violated the Ex Post
Facto Clause of the United States Constitution. The Court of
Appeals disagreed, holding that registration is not
punishment, so the 2011 amendments could be applied
retroactively to him. State v. Burdick, No. 110,
472, 2015 WL 2342145, at *6-7 (Kan. App. 2015) (unpublished
opinion). Burdick petitioned for review on only this issue,
and we granted review.
argues that his conviction is invalid because when he was
first required to register, he had 10 days-rather than 3-to
notify authorities about a change in residence. We 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, Burdick 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) (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.