State v. Simmons ( 2017 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 108,885
STATE OF KANSAS,
Appellee,
v.
AMI LATRICE SIMMONS,
Appellant.
SYLLABUS BY THE COURT
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.
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.
The opinion of the court was delivered by
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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.
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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
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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." 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 are punishment and subject to the limitations of the Ex Post Facto
Clause.
Secondary to her ex post facto challenge, Simmons raises an issue of first
impression in this court. Styled as an illegal sentence claim, Simmons challenges the
authority of the executive branch to order her to register in the first instance. Simmons
reasons that even if drug offender registration is not punishment for purposes of applying
the Ex Post Facto Clause, it does arise out of and as a part of the underlying sentence.
Therefore, the executive branch has no legal authority to order her to register because to
do so would be, in effect, to illegally "modify" her sentence for the underlying drug
conviction.
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The Court of Appeals panel held:
"After careful review of the relevant provisions of the applicable statutes, the
unambiguous language therein readily establishes that 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. Because the registration requirement
is not part of her sentence, we necessarily conclude there is no merit to Simmons' claim
that her sentence was illegally modified." Simmons, 50 Kan. App. 2d at 463.
The parties spend most of their energy arguing from our prior caselaw defining the
legal contours of a criminal sentence. But we need not follow either the lead of the panel
below or that of the parties to resolve Simmons' illegal sentence claim as a question of
law. Rather, her claim fails more prosaically on factual grounds. Simply put, Simmons'
2005 criminal sentence has not been "modified" because the obligation to register was
imposed on her after she was sentenced by the district court. In a criminal proceeding,
sentencing takes place when the trial court pronounces the sentence from the bench. State
v. Jackson, 291 Kan. 34, 35, 238 P.3d 246 (2010); State v. Garcia, 288 Kan. 761, 765,
207 P.3d 251 (2009); Abasolo v. State, 284 Kan. 299, 304, 160 P.3d 471 (2007).
In State v. Royse, 252 Kan. 394, 397, 845 P.2d 44 (1993), the court defined what
constitutes a criminal sentence:
"Ordinarily, in a legal sense, 'sentence' is synonymous with 'judgment' and
denotes the action of a court of criminal jurisdiction formally declaring to the defendant
the legal consequences of the guilt to which he has confessed or of which he has been
convicted. Roberts v. State, 197 Kan. 687, Syl. ¶ 1, 421 P.2d 48 (1966). In criminal cases,
the judgment must be rendered and sentence imposed in open court. The judgment in a
criminal case, whether it imposes confinement, imposes a fine, grants probation,
suspends the imposition of sentence, or imposes any combination of those alternatives, is
effective upon its pronouncement from the bench."
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In Simmons' case, the district court did not pronounce Simmons' duty to register at
sentencing in the 2005 case or at any subsequent hearing on the subject, so it is simply
not true that her sentence has been modified. Whatever role the executive branch
played—even if it can be said the executive branch enforced a requirement on Simmons
inconsistent with her sentence—the executive branch cannot have modified the sentence.
The executive branch is not a court of criminal jurisdiction. And there is no claim the
district court did anything after the 2005 sentencing proceeding. In other words, this
particular defense against the subsequent criminal charge is factually off base. We need
go no further to decide that Simmons' 2005 sentence was not illegal.
Lastly, Simmons claims the district court erred when it ordered her to pay the
$200 DNA database fee over her objection. Once again, this requires us to interpret a
statute, which is a question of law subject to de novo review. State v. Collins, 303 Kan.
472, 473-74, 362 P.3d 1098 (2015).
The key statute in our analysis is K.S.A. 2012 Supp. 75-724, which governs when
a court must impose a DNA database fee. It provides in relevant part:
"(a) Any person convicted or adjudicated of an offense that, pursuant to K.S.A.
21-2511, and amendments thereto, requires submission of a DNA sample upon arrest,
charging or placement in custody, shall pay a separate court cost of $200 as a Kansas
bureau of investigation DNA database fee upon conviction or adjudication.
"(b) The court shall order such fees regardless of whether the person's DNA
sample was already on file with the Kansas bureau of investigation at the time such
person was arrested, charged or placed in custody, unless the person can prove to the
court that the person: (1) Has paid such fees in connection with a prior conviction or
adjudication; and (2) did not submit specimens of blood or an oral or other biological
sample authorized by the Kansas bureau of investigation to the Kansas bureau of
investigation for the current offense of conviction or adjudication." K.S.A. 2012 Supp.
75-724(a)-(b).
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Simmons contends because the KBI's regulations require that "[e]ach convicted
offender . . . currently incarcerated and required to provide blood and saliva samples shall
provide these samples before release, discharge, or parole," K.A.R. 10-21-6(j), and
because she was previously incarcerated from June 2007 until October 2008, she "must
have provided a DNA sample before release, discharge or parole."
Simmons, however, ignores her burden under K.S.A. 2012 Supp. 75-724. The
statute plainly states the court "shall order such fees regardless of whether the person's
DNA sample was already on file" unless the person can prove that he or she has "paid
such fees in connection with a prior conviction or adjudication" and "did not submit [a
DNA] sample . . . for the current offense of conviction or adjudication." K.S.A. 2012
Supp. 75-724(a)-(b).
Simmons does not direct our attention to a place in the record where she showed
she previously paid a DNA database fee or demonstrated she did not submit a DNA
sample for the current offense. The only reference in the record is her counsel's brief
objection at sentencing that the State must already have her DNA because she was
previously in the prison system. As the party asserting prejudicial error, Simmons has the
burden of designating a record that demonstrates error. See State v. Sisson, 302 Kan. 123,
128, 351 P.3d 1235 (2015). "[W]ithout such a record, we presume the actions of the trial
court were proper." State v. Warren, 302 Kan. 601, 616, 356 P.3d 396 (2015). Simmons
has not met her burden on appeal, let alone her burden below. The district court did not
err by imposing the $200 DNA database fee.
Affirmed.
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***
BEIER, J., dissenting: I respectfully dissent from the majority's decision in this
case.
In the four Kansas Offender Registration Act cases argued before State v.
Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016)—that is, in State v. Redmond,
304 Kan. 283, 371 P.3d 900 (2016); State v. Buser, 304 Kan. 181, 371 P.3d 886 (2016);
and Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016), all of which dealt with sex
offenders and application of the federal Ex Post Facto Clause, and in State v. Charles,
304 Kan. 158, 372 P.3d 1109 (2016), which dealt with a violent offender and the
necessity that a jury find all facts necessary for imposition of certain punishments under
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)—I
agreed with three of my colleagues that Kansas' offender registration requirement
constitutes punishment.
I would have extended the holdings of those four cases in Petersen-Beard, which
asked whether the requirement of offender registration constituted not only punishment
but also cruel and unusual punishment under the Eighth Amendment. I therefore joined
Justice Lee A. Johnson's dissent in Petersen-Beard, explicitly agreeing with the result he
would have reached and implicitly agreeing with all of the merits-based arguments
Justice Johnson advanced to support his result. Petersen-Beard, 304 Kan. at 211-25
(Johnson, J., dissenting).
I decline to change course today. 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
8
us. Defendant Ami Latrice Simmons has met any burden of proof that she bears on this
point, and the KORA registration obligation could not be imposed on her by legislative
action after her conviction and without violating the Ex Post Facto Clause.
ROSEN and JOHNSON, JJ., join the foregoing dissent.
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