State v. Burdick ( 2017 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 110,472
STATE OF KANSAS,
Appellee,
v.
THOMAS BURDICK,
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Review of the judgment of the Court of Appeals in an unpublished opinion filed May 8, 2015.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 Riley District Court; JOHN F. BOSCH, 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.
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.
1
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.
2
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. 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, 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. ___, ___ 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
3
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." Meredith, 306 Kan. at ____, slip
op. at 10.
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. ___, ___ 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
4
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 ___,
slip op. at 11-12 (Beier, J., dissenting).
ROSEN and JOHNSON, JJ., join the foregoing dissent.
5