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of the judgment of the Court of Appeals in an unpublished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 July 26, 2013.
from Sedgwick District Court; Benjamin L. Burgess, judge.
Judgment of the Court of Appeals affirming the district court
is affirmed. Judgment of the district court is affirmed.
Heather Cessna and Shawn E. Minihan, of Kansas Appellate
Defender Office, and were on the briefs for appellant.
K. Isherwood, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
R. Richardson appeals the district court's denial of his
presentence motion to withdraw plea as well as his request to
appoint new counsel. Both motions were premised on the
argument that Richardson should not have been required to
register as a drug offender pursuant to the Kansas Offender
Registration Act (KORA), K.S.A. 22-4901 et seq.,
because doing so violates the Ex Post Facto Clause of the
United States Constitution. Since we hold that Richardson
cannot carry his burden to show "by the clearest
proof" that KORA imposes punishment on drug offenders as
a class separate and distinct from sex offenders as a class,
we affirm the district court's decisions.
and Procedural Background
was convicted for sale of cocaine in 2003. After he was
sentenced, the legislature expanded KORA to include certain
drug offenders, including those convicted of sale of cocaine.
L. 2007, ch. 183, sec. 1; see K.S.A. 2007 Supp.
22-4902(a)(11)(C). Following the change in the law,
Richardson pled guilty to two counts of offender registration
violations when he failed to register in April and May 2011.
See K.S.A. 2010 Supp. 22-4904(c).
district court conducted the initial sentencing hearing on
February 21, 2012. Before sentencing could begin, however,
Richardson's attorney informed the court that Richardson
had filed a number of pro se motions that he had not yet
seen. The court acknowledged that it had not seen the
motions, so it postponed the sentencing hearing to give the
parties time to address them. The court then asked
Richardson: "[T]he motion is a pro se motion to withdraw
the plea and to request new counsel, both; is that
correct?" Richardson responded, "Yes, sir."
fact, Richardson had filed a handwritten motion to withdraw
plea arguing that KORA could not apply to him because drug
offenders were not required to register at the time he
committed the crime. Richardson further argued that his
current trial counsel "should have been aware of the Law
Stating that This Do Not Apply to the defendant."
Richardson submitted the second motion through an inmate
request form addressed to the clerk of the court. It stated:
"Comes now the defendant Pro Se, moves that this court
grant the above motion for: Manifest in justice by my
appointed attorney in misinforming me of K.S.A. 21-4903. In
which the Offender Registration Law does not apply to me
because I was sentenced in 2005, not after the date of July
1, 2007 as stated by Kansas Law."
March 2, 2012, the court held a hearing to consider the
motions. At the beginning of the hearing, the court and
defense counsel disagreed about the scope of Richardson's
motions-the court believed that Richardson only requested a