Opinion
No. 110,472
08-11-2017
STATE of Kansas, Appellee, v. Thomas BURDICK, Appellant.
Meryl Carver–Allmond, of Capital Appellate Defender Office, was on the briefs for appellant. Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Meryl Carver–Allmond, of Capital Appellate Defender Office, was on the briefs for appellant.
Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
The opinion of the court was delivered by Stegall, J.:
In 2009, Thomas Burdick pled no contest to one count of distribution of cocaine. Pursuant to a plea agreement, the district court sentenced him to 30 months' imprisonment and ordered 24 months' postrelease supervision. At the time he committed the crime, Burdick was required to register as a drug offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. See K.S.A. 2008 Supp. 22-4902(a)(11)(C). Under that version of KORA, offenders had to register with the county sheriff "[w]ithin 10 days of the offender coming into any county in which the offender resides or temporarily resides for more than 10 days." K.S.A. 22-4904(a)(2).
By the time Burdick was released from prison in December 2012, the legislature had changed KORA by requiring offenders to "register in person upon any commencement, change or termination of residence location ... within three business days of such commencement, change or termination." (Emphasis added.) K.S.A. 2012 Supp. 22-4905(g) ; see L. 2011, ch. 95, sec. 5 (reducing the time to update registration to 3 days). Thereafter, Burdick changed residences several times, and law enforcement arrested him for failing to timely update his registration.
Prior to trial, Burdick submitted a "motion to dismiss for ex post facto punishment by 2011 redux of Kansas Offender Registration Act," which the court denied. A jury eventually convicted Burdick of one count of violating KORA for failing to report a change of residence within 3 business days between January 9, 2013, and January 11, 2013. Among Burdick's several complaints on appeal, he claimed that applying the 2011 KORA amendments to him violated the Ex Post Facto Clause of the United States Constitution. The Court of Appeals disagreed, holding that registration is not punishment, so the 2011 amendments could be applied retroactively to him. State v. Burdick , No. 110,472, 2015 WL 2342145, at *6–7 (Kan. App. 2015) (unpublished opinion). Burdick petitioned for review on only this issue, and we granted review.
Burdick argues that his conviction is invalid because when he was first required to register, he had 10 days—rather than 3—to notify authorities about a change in residence. 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, 377 P.3d 1127. 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. ––––, ––––, 399 P.3d 865, 869, 2017 WL 3326944 (No. 110277, filed August 4, 2017).
Therefore, to prevail, Burdick 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. ––––, 399 P.3d 859, 2017 WL 3318285 (No. 110520, filed August 4, 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 KORA's allegedly punitive effects on drug offenders as a class separate and distinct from sex offenders." Meredith, 306 Kan. at ––––, 399 P.3d at 862 ; 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, 377 P.3d 1127. 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." Meredith, 306 Kan. at ––––, 399 P.3d at 864.
Burdick's claim suffers from the same flaw. He 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 are punishment and subject to the limitations of the Ex Post Facto Clause.
Affirmed.
Beier, J., dissenting:
Consistent with my votes in State v. Petersen–Beard , 304 Kan. 192, 377 P.3d 1127 (2016) ; State v. Reed , 306 Kan. ––––, 399 P.3d 865, 2017 WL 3326944 (No. 110277, filed August 4, 2017); and State v. Meredith , 306 Kan. ––––, 399 P.3d 859, 2017 WL 3318285 (No. 110520, filed August 4, 2017), I respectfully dissent from the majority's decision in this case. "Kansas' requirement of offender registration—especially in its modern, maximally invasive, maximally pervasive, and infinitely more public incarnation—is punishment, certainly in effect if not in intent. It is no less so for a drug offender than for a sex offender or a violent offender. It is no less so when the Ex Post Facto Clause is before us than when Apprendi or the Eighth Amendment is before us." Meredith , 306 Kan. at –––– – ––––, 399 P.3d at 864–65 (Beier, J., dissenting).
Rosen and Johnson, JJ., join the foregoing dissent.