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.
Kittel, of Kansas Appellate Defender Office, argued the cause
and was on the brief for appellant.
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.
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.
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
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.
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.
granted Simmons' petition for review. Finding no error
below, we affirm.
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 ). 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).
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.
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 ...