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State v. Simmons

Supreme Court of Kansas

December 1, 2017

State of Kansas, Appellee,
v.
Ami Latrice Simmons, Appellant.

         Review of the judgment of the Court of Appeals in 50 Kan.App.2d 448, 329 P.3d 523 (2014). Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed December 1, 2017. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

          Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Amy E. Norton, assistant county attorney, argued the cause, and Charles Ault-Duell, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

         SYLLABUS

         Nonsex 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.

          Stegall, J.

         In 2005, Ami Latrice Simmons pled guilty to possession of cocaine with the intent to distribute and to selling cocaine. The district court sentenced her to serve 30 months in prison, and she was paroled in October 2008. While serving her prison sentence, the Kansas Legislature amended the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., to require drug offenders such as Simmons to register. After she was released on parole, Simmons alleges she was "ordered" or required to register by the Kansas Bureau of Investigation or the Kansas Department of Corrections, and she began to do so. The State does not contest the fact that Simmons was notified of her obligation to register by some agency of the executive branch of government.

         In 2011, the State charged Simmons with failing to register as required by KORA. In response, Simmons argued the retroactive application of KORA violated the Ex Post Facto Clause of the United States Constitution. The district court disagreed. After a trial on stipulated facts, Simmons was found guilty and ordered to pay a $200 DNA database fee.

         Simmons appealed on three grounds: (1) she reasserted her ex post facto challenge; (2) she appealed the imposition of the DNA database fee; and (3) she argued that even if drug offender registration under KORA was not punishment and thus not subject to the Ex Post Facto Clause, it was nonetheless a part of her 2005 sentence which could not be modified by the executive branch. A panel of the Court of Appeals held the Legislature "intended the KORA registration requirements to be imposed automatically by operation of law without court involvement and to represent nonpunitive collateral consequences of judgment that are distinct from, and not a part of, a criminal sentence." State v. Simmons, 50 Kan.App.2d 448, 463, 329 P.3d 523 (2014). As such, it rejected Simmons' unique claim that the executive branch had unlawfully modified her sentence. It also found no merit to her ex post facto challenge and concluded that she was statutorily required to pay a DNA database fee under the circumstances of this case.

         We granted Simmons' petition for review. Finding no error below, we affirm.

         Analysis

         Simmons first claims the application of KORA, as a whole, to her violates the Ex Post Facto Clause of article I, § 10 of the United States Constitution. 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 [1963]). We therefore held that the 2011 version of KORA could not violate federal prohibitions against cruel and unusual punishment. See 304 Kan. at 208-09. 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. 899, 904, 399 P.3d 865 (2017).

         Therefore, to establish that the application of KORA to her amounts to a retroactive punishment, Simmons 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. 906, 399 P.3d 859 (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 that the Legislature's nonpunitive intent must give way to KORA's allegedly punitive effects on drug offenders as a class separate and distinct from sex offenders. 306 Kan. at 910; 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." 306 Kan. at 913.

         Simmons' claim suffers from the same flaw. She 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 ...


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