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State v. Richardson

Supreme Court of Kansas

November 9, 2017

State of Kansas, Appellee,
v.
Djuan R. Richardson, Appellant.

         SYLLABUS

         Non-sex 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed July 26, 2013.

         Appeal 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.

          Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          Stegall, J.

         Djuan 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.

         Factual and Procedural Background

         Richardson 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).

         The 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."

          In 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."

         On 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 plea ...


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