377 P.3d 1127 (Kan. 2016), 108,061, State v. Petersen-Beard

Docket Nº108,061
Citation377 P.3d 1127, 304 Kan. 192
Opinion JudgeStegall, J.
Party NameSTATE OF KANSAS, Appellee, v. HENRY PETERSEN-BEARD, Appellant
AttorneyMichelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant. Christina M. Trocheck, first assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
Judge PanelSTEGALL, J. JOHNSON, J., dissenting. BEIER and ROSEN, JJ., join Justice Johnson's dissent as to the result. Johnson, J., dissenting: Beier and Rosen, JJ.
Case DateApril 22, 2016
CourtUnited States State Supreme Court of Kansas

Page 1127

377 P.3d 1127 (Kan. 2016)

304 Kan. 192

STATE OF KANSAS, Appellee,

v.

HENRY PETERSEN-BEARD, Appellant

No. 108,061

Supreme Court of Kansas

April 22, 2016

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 9, 2013.

Page 1128

Appeal from Saline District Court; RENE S. YOUNG, judge.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

SYLLABUS

BY THE COURT

1. Lifetime postrelease registration for sex offenders mandated by the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., does not constitute punishment for purposes of applying provisions of the United States Constitution. Contrary holdings in State v. Redmond, 304 Kan. 283, 371 P.3d 900 (No. 110,280, this day decided), State v. Buser, 304 Kan. 181, 371 P.3d 886 (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (No. 110,318, this day decided), are overruled.

2. Lifetime postrelease registration for sex offenders mandated by the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., does not constitute punishment for purposes of applying § 9 of the Kansas Constitution Bill of Rights.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Christina M. Trocheck, first assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

STEGALL, J. JOHNSON, J., dissenting. BEIER and ROSEN, JJ., join Justice Johnson's dissent as to the result.

OPINION

Page 1129

Stegall, J.

Henry Petersen-Beard challenges his sentence to lifetime postrelease registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. Because we find that lifetime registration as a sex offender pursuant to KORA is not punishment for either Eighth Amendment [304 Kan. 193] or § 9 purposes, we reject Petersen-Beard's argument that it is unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule the contrary holdings of State v. Redmond, 304 Kan. 283, 371 P.3d 900 (No. 110,280, this day decided), State v. Buser, 304 Kan. 181, 371 P.3d 886 (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (No. 110,318, this day decided).

Factual and Procedural Background

Petersen-Beard pled guilty to and was convicted of one count of rape for having sexual intercourse with a 13-year-old girl when he was 19 years old. Prior to sentencing, he filed motions asking the district court to depart from the presumptive guidelines sentence and to declare KORA's requirement of lifetime registration unconstitutional under § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. The district court granted Petersen-Beard's motion for a downward durational departure but denied his request to find KORA's lifetime registration requirements unconstitutional. As such, the district court sentenced Petersen-Beard to 78 months' imprisonment with lifetime postrelease supervision and lifetime registration as a sex offender--the lowest sentence permitted by law.

Petersen-Beard appealed the district court's ruling to the Court of Appeals but did not prevail. State v. Petersen-Beard, 305 P.3d 47, 2013 WL 4046444 (Kan. App. 2013) (unpublished opinion). Petersen-Beard now brings his appeal to this court reprising the arguments he made below that the requirement in Kansas law of lifetime registration as a sex offender is unconstitutional. We granted Petersen-Beard's petition for review pursuant to K.S.A. 20-3018(b), exercise jurisdiction pursuant to K.S.A. 60-2101(b), and affirm.

Analysis

Standard of Review

This appeal requires us to decide whether KORA's mandatory lifetime sex offender registration as set forth in K.S.A. 22-4901 et seq., runs afoul of either the Eighth Amendment's prohibition [304 Kan. 194] against " cruel and unusual punishments" or § 9's prohibition against " cruel or unusual punishment." The constitutionality of a statute is a question of law over which this court exercises plenary review. State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012). " We presume statutes are constitutional and must resolve all doubts in favor of a statute's validity." State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). " It is not the duty of this court to criticize the legislature or to substitute its view on economic or social policy; it is the duty of this court to safeguard the constitution." State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008).

Typically, challenges arising under either the Eighth Amendment or § 9, or both, attack criminal sanctions against persons convicted of crimes as being cruel and/or unusual. Such is the case with Petersen-Beard's argument here. However, as the State points out, there remains a threshold question as to whether the challenged sanction is punishment at all for purposes of either the Eighth Amendment or § 9, or is rather a civil and nonpunitive sanction. Here, the State claims that KORA's requirement of lifetime sex offender registration in Petersen-Beard's case is not punishment at all and is therefore not subject to our normal cruel and unusual analysis. For the reasons set forth below, we agree.

KORA's lifetime sex offender registration requirements are not punishment for purposes of applying the United States Constitution.

In Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the United States Supreme Court set out the

Page 1130

following framework for analyzing whether a legislature's statutory scheme is punitive: " We must 'ascertain whether the legislature meant the statute to establish " civil" proceedings.' Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is '" so punitive either in purpose or effect as to negate [the State's] intention" to deem it " civil." ' Ibid. (quoting United States v. Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). Because we 'ordinarily defer to the legislature's stated intent,' Hendricks, supra, at 361, '" only the clearest proof" will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,' Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 [304 Kan. 195] (1997) (quoting Ward, supra, at 249, [100 S.Ct. at 2641]); see also Hendricks, supra, at 361; United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984)."

This framework is often referred to as the " intent-effects" test. Moore v. Avoyelles Correctional Center, 253 F.3d 870, 872 (5th Cir. 2001). In Smith v. Doe, the Supreme Court reasoned that a " conclusion that the legislature intended to punish" would resolve the question of the punitive nature of the statutory scheme " without further inquiry into its effects." 538 U.S. at 92-93. Applying the intent-effects test to KORA's lifetime registration provisions, we have held today in Thompson that our legislature intended those provisions of KORA to be a nonpunitive and civil regulatory scheme rather than punishment. See Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (No. 110,318, this day decided), [slip op. at] 22-31 (citing State v. Myers, 260 Kan. 669, 923 P.2d 1024 [1996] [lifetime postrelease registration under Kansas Sex Offender Registration Act was nonpunitive in nature], cert. denied 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 [1997]. We agree and do not disturb that aspect of Thompson or its companion cases. See State v. Redmond, 304 Kan. 283, 371 P.3d 900 (No. 110,280, this day decided), [slip op.] at 6; State v. Buser, 304 Kan. 181, 371 P.3d 886 (No. 105,982, this day decided), [slip op.] at 6.

Because the legislature did not intend for KORA's lifetime sex offender registration scheme to be punishment, we must next turn to the effect of those provisions to determine whether, by " '" the clearest proof," '" those effects " 'override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.'" Smith, 538 U.S. at 92. The Supreme Court in Smith utilized the seven factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), to decide whether the effects of the legislative enactment negated and overrode the legislature's intent to establish a civil regulatory scheme. Smith, 538 U.S. at 97. The Mendoza-Martinez factors are: " Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment--retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned . . . ." Mendoza-Martinez, 372 U.S. at 168-69.

[304 Kan. 196] While in Smith, the Mendoza-Martinez factors were applied to determine whether a lifetime registration...

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180 practice notes
  • State v. Genson, 121820 KSCA, 121, 014
    • United States
    • Kansas Court of Appeals of Kansas
    • December 18, 2020
    ...finding them not to be punitive. See State v. Meredith, 306 Kan. 906, 909-10, 399 P.3d 859 (2017); State v. Petersen-Beard, 304 Kan. 192, 196-97, 377 P.3d 1127 (2016). Rather, Genson challenges the criminal penalties imposed in KORA for failing to register or report ......
  • State v. Nwoji, 082418 KSCA, 117, 721
    • United States
    • Kansas Court of Appeals of Kansas
    • August 24, 2018
    ...it constitutional if any reasonable construction would maintain the Legislature's apparent intent. State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127, cert. denied 137 S.Ct. 226 (2016). K.S.A. 2017 Supp. 21-6607(c) is a subsection of the statute governing the......
  • State v. Johnson, 101317 KSCA, 110, 837
    • United States
    • Kansas Court of Appeals of Kansas
    • October 13, 2017
    ...if there is any reasonable construction that will maintain the legislature's apparent intent. See State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016). In resolving this constitutional challenge, we first determine whether the statute gives adequate warn......
  • 401 P.3d 183 (Kan.App. 2017), 113,862, State v. Hernandez-Cartagena
    • United States
    • Kansas Court of Appeals of Kansas
    • September 1, 2017
    ...State v. Reed, 306 Kan. __, Syl., 399 P.3d 865, 2017 WL 3326944 (No. 110,277, filed August 4, 2017); State v. Petersen-Beard, 304 Kan. 192, Syl. ¶ 2, 377 P.3d 1127 (2016). So even though aggravated human trafficking wasn't a registration crime at the time of Hernand......
  • Request a trial to view additional results
178 cases
  • State v. Genson, 121820 KSCA, 121, 014
    • United States
    • Kansas Court of Appeals of Kansas
    • December 18, 2020
    ...finding them not to be punitive. See State v. Meredith, 306 Kan. 906, 909-10, 399 P.3d 859 (2017); State v. Petersen-Beard, 304 Kan. 192, 196-97, 377 P.3d 1127 (2016). Rather, Genson challenges the criminal penalties imposed in KORA for failing to register or report ......
  • State v. Nwoji, 082418 KSCA, 117, 721
    • United States
    • Kansas Court of Appeals of Kansas
    • August 24, 2018
    ...it constitutional if any reasonable construction would maintain the Legislature's apparent intent. State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127, cert. denied 137 S.Ct. 226 (2016). K.S.A. 2017 Supp. 21-6607(c) is a subsection of the statute governing the......
  • State v. Johnson, 101317 KSCA, 110, 837
    • United States
    • Kansas Court of Appeals of Kansas
    • October 13, 2017
    ...if there is any reasonable construction that will maintain the legislature's apparent intent. See State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016). In resolving this constitutional challenge, we first determine whether the statute gives adequate warn......
  • 401 P.3d 183 (Kan.App. 2017), 113,862, State v. Hernandez-Cartagena
    • United States
    • Kansas Court of Appeals of Kansas
    • September 1, 2017
    ...State v. Reed, 306 Kan. __, Syl., 399 P.3d 865, 2017 WL 3326944 (No. 110,277, filed August 4, 2017); State v. Petersen-Beard, 304 Kan. 192, Syl. ¶ 2, 377 P.3d 1127 (2016). So even though aggravated human trafficking wasn't a registration crime at the time of Hernand......
  • Request a trial to view additional results
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