State v. Wingo ( 2017 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 108,275
STATE OF KANSAS,
Appellee,
v.
REBECCA WINGO,
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Review of the judgment of the Court of Appeals in an unpublished opinion filed June 7, 2013.
Appeal from Crawford District Court; DONALD R. NOLAND, 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.
Rachel L. Pickering, of Kansas Appellate Defender Office, was on the brief 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.: Rebecca Wingo pled no contest to one count of second-degree
intentional murder. She committed this offense on May 21, 2010. At that time, the
Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., required those
convicted of second-degree intentional murder to register as a violent offender for 10
years. K.S.A. 2009 Supp. 22-4902(d)(3); K.S.A. 22-4906(a). By the time the district
court sentenced her in November 2011, however, the legislature had amended KORA,
raising the registration period to 15 years. See K.S.A. 2011 Supp. 22-4906(a)(1)(G); L.
2011, ch. 95, sec. 6. The district court sentenced Wingo to 155 months' imprisonment and
ordered her to register for 15 years.
In January 2012, Wingo filed a pro se motion to modify sentence, generally asking
the court to reconsider her sentence, but the district court denied the motion, finding that
it had lost jurisdiction over the case. In May 2012, Wingo sent a letter to the district court
stating she wished to appeal "everything." After issuing an order to show cause, the Court
of Appeals permitted Wingo to take a direct appeal pursuant to State v. Ortiz, 230 Kan.
733, 735-36, 640 P.2d 1255 (1982).
Wingo's sole argument on appeal is that requiring her to register for 15 years—as
opposed to 10—violates the Ex Post Facto Clause of the United States Constitution. She
contends that at the very least the public notice provisions of KORA constitute
punishment. The Court of Appeals declined Wingo's invitations, holding that registration
in its entirety is not punishment. Thus it held that the 2011 amendments could be applied
retroactively to Wingo, and she was required to register for 15 years. State v. Wingo,
108,275, 2013 WL 2936088, at *2-3 (Kan. App. 2013) (unpublished opinion). We
granted her petition for review.
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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 ___ (2017) (No.
110,277, filed August 4, 2017), slip op. at 8.
Therefore, to prevail, Wingo must demonstrate that violent 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 violent offenders. We recently
confronted a nearly identical question in State v. Meredith, 306 Kan. ___, ___ P.3d ___
(2017) (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 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,
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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.
Wingo'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 violent 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
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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