constitutional claims cannot be raised for the first time on
appeal. Although exceptions to this general rule exist,
parties seeking to raise an issue for the first time on
appeal must assert the exceptions.
of the judgment of the Court of Appeals in an unpublished
opinion filed July 26, 2013.
Appeal from Johnson District Court; Sara Welch, judge.
Christina M. Kerls, of Kansas Appellate Defender Office, was
on the brief for appellant.
E. Minihan, assistant district attorney, Stephen M. Howe,
district attorney, and Derek Schmidt, attorney general, were
on the briefs for appellee.
Daniel pled no contest to attempted kidnapping and domestic
battery. He committed these crimes on April 21, 2011. When
the district court sentenced Daniel 8 months later, the court
informed Daniel that he was required to register as a violent
offender pursuant to the Kansas Offender Registration Act
(KORA), K.S.A. 22-4901 et seq. The State argued that
a recent amendment to KORA that went into effect on July 1,
2011, required him to register as a violent offender for his
lifetime. See K.S.A. 2011 Supp. 22-4906(d)(9) and (d)(12).
Daniel's counsel conceded that he was required to
register but argued that the registration period should be
for 10 years rather than the remainder of Daniel's life.
The court declined to decide the matter at sentencing and
asked the parties to brief the issue. The court then
sentenced Daniel to an underlying prison term of 36 months
and placed him on probation for 36 months.
State later submitted a brief in which it argued that the
2011 amendments to KORA applied retroactively to Daniel.
Curiously, Daniel's counsel agreed. In his brief, Daniel
acknowledged that registration "is not considered
punishment. Therefore, a retroactive application does not
violate the Ex Post Facto Clause of the Constitution.
[Citation omitted.]" Thereafter, the court held a brief
hearing, at which Daniel was not present. Daniel's
counsel told the court:
"[U]nfortunately, my brief was consistent with the
[S]tate according to the Evans case and how the
law's been applied concerning sexual offender
registration. It is retroactive, and it is my legal belief my
client is obligated to register for the lifetime due to the
change that took place July 1st of 2011. However, obviously,
if he chooses to appeal this for the unconstitutionality of
the law at this time, then, that's his option. But as far
as from a legal standpoint, I don't believe I'm able
to ask this Court to make a decision contrary to what I
believe the law is, and what I believe is clear. And so, that
said, Judge, I believe this Court should order my client to
register for the duration of his life."
Daniel was required to register as a violent offender for
life based on the attempted kidnapping conviction. Daniel
receiving new counsel on appeal, Daniel reversed his position
and argued that retroactive application of KORA's
lifetime registration requirement violates the Ex Post Facto
Clause and that the 10-year registration requirement should
apply to him. Alternatively, Daniel claimed that, according
to State v. Myers, 260 Kan. 669, 923 P.2d 1024
(1996), the public notification portion of KORA violates the
Ex Post Facto Clause, so he must publicly register for only
Court of Appeals dispensed with the case without reaching the
merits of Daniel's claims. It first held that Daniel
invited error regarding his ex post facto claim when he
conceded that registration was not punishment. State v.
Daniel, No. 107, 963, 2013 WL 3867381, *2-3 (Kan. App.
2013) (unpublished opinion). The court then determined that
Daniel did not properly preserve his argument that he should
only be required to register publicly for 10 years. 2013 WL
3867381, at *3. We granted his petition for review.
contends that the Court of Appeals erred by jettisoning his
claims on procedural grounds. Whether the doctrine of invited
error applies is a question of law subject to unlimited
review. State v. Hankins, 304 Kan. 226, 230, 372
P.3d 1124 (2016). Likewise, we exercise plenary review over
whether an issue is properly ...