State v. Hill ( 2017 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 111,226
STATE OF KANSAS,
Appellee,
v.
BARBARA ANNEMARIE HILL,
Appellant.
SYLLABUS BY THE COURT
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Review of the judgment of the Court of Appeals in an unpublished opinion filed May 8, 2015.
Appeal from Crawford District Court; LORI A. BOLTON FLEMING, judge. Opinion filed August 11, 2017.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.
Korey A. Kaul, of Kansas Appellate Defender Office, was on the briefs for appellant.
Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.
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The opinion of the court was delivered by
STEGALL, J.: Barbara Annemarie Hill entered an Alford plea to one count of
possession of pseudoephedrine with intent to manufacture and one count of possession of
methamphetamine. At the time she committed these offenses—May 2, 2010—the law
required persons convicted of such crimes to register as a drug offender, "unless the court
ma[de] a finding on the record that the possession of such product was intended to be
used to manufacture a controlled substance for [Hill's] personal use." K.S.A. 2009 Supp.
22-4902(a)(11)(B). At the time of her sentencing in December 2012, however, the
Kansas Legislature had removed the personal use exception. See K.S.A. 2012 Supp. 22-
4902(f)(2); see also L. 2011, ch. 95, sec. 2.
Hill asked the court to apply the pre-2011 version of KORA and make a finding
that she possessed pseudoephedrine with the intent to manufacture methamphetamine for
her personal use. The State argued that the current version of the statute retroactively
applied to Hill, though it conceded that if the pre-2011 version applied, Hill would not be
required to register because it would stipulate that she had manufactured
methamphetamine for both sale to others and for personal use. See State v. Mishmash,
295 Kan. 1140, 290 P.3d 243 (2012) (holding that defendant who had been convicted of
unlawful manufacture of a controlled substance was not required to register where the
defendant was manufacturing the controlled substances for both personal use and for sale
to others).
The court held a nonevidentiary hearing and, after taking the matter under
advisement, filed a journal entry stating that the 2011 amendments to KORA applied to
Hill and she was required to register. Hill appealed the district court's order regarding her
registration requirement. The Court of Appeals ultimately held that the "duty to register is
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a civil penalty, not punitive, and retroactive application does not violate the Ex Post Facto
Clause of the United States Constitution." State v. Hill, No. 111,226, 2015 WL 2342392,
at *2 (Kan. App. 2015) (unpublished opinion). We granted her petition for review.
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. 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. ___, ___ P.3d ___ (No.
110,277, filed August 4, 2017), slip op. at 8.
Therefore, to prevail, Hill 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. ___, ___ P.3d ___ (No. 110,520, 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 ___, slip op. at 6; 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
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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." Meredith, 306 Kan. at ____, slip
op. at 10.
Hill's 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 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. ___, ___ P.3d ___ (No.
110,277, filed August 4, 2017); and State v. Meredith, 306 Kan. ___, ___ P.3d ___ (No.
110,520, 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
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than when Apprendi or the Eighth Amendment is before us." Meredith, 306 Kan. at ___,
slip op. at 11-12 (Beier, J., dissenting).
ROSEN and JOHNSON, JJ., join the foregoing dissent.
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