State v. Buser, 105,982.

• Decision Date: 22 April 2016
• Docket Number: No. 105,982.,105,982.
• Citation: 304 Kan. 181,371 P.3d 886
• Parties: STATE of Kansas, Appellee, v. Joseph M. BUSER, Appellant.
• Court: Kansas Supreme Court

304 Kan. 181

371 P.3d 886

STATE of Kansas, Appellee,

v.Joseph M. BUSER, Appellant.

No. 105,982.

Supreme Court of Kansas.

April 22, 2016.

Meryl Carver–Allmond, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Mark J. Noah, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by JOHNSON

, J.:

Joseph M. Buser seeks review of the Court of Appeals' holding that the 2011 amendments to the Kansas Offender Registration Act (KORA), K.S.A. 22–4901et seq., can be applied retroactively to his 2009 conviction without violating the Ex Post Facto Clause of the United States Constitution (hereafter Ex Post Facto Clause). Because KORA's statutory scheme after the 2011 amendments is so punitive in effect as to negate the implied legislative intent to deem it civil, we hold that the Ex Post Facto Clause precludes the retroactive application of the amended statutory scheme to any sex offender who committed the qualifying offense prior to July 1, 2011. Accordingly, we reverse the Court of Appeals and hold that the time period in which Buser is required to register is 10 years from his release from prison, pursuant to the provisions of K.S.A. 22–4906(a)

.

Factual and Procedural Overview

In February 2009, when he was 21 years old, Buser began dating a 15–year–old girl. The couple began having sex 2 months later, and the following month, in May 2009, the girl's mother reported the couple's sexual relationship to the police. The police investigation led to charges being filed against Buser, including one count of indecent liberties with a child and six counts of aggravated indecent liberties with a child. Ultimately, Buser pled no contest to one count of indecent liberties with a child. In connection with his plea, Buser was advised of the KORA requirement to register as a sex offender.

The district court accepted Buser's plea and sentenced him to 52 months' imprisonment and lifetime post-release supervision. The district court also ordered Buser to register as an offender under KORA for his lifetime because the court found that this was Buser's second conviction, apparently based upon a prior juvenile adjudication.

In Buser's direct appeal to the Court of Appeals, he argued that the district court erred in counting his prior juvenile adjudication as a first conviction for purposes of KORA because K.S.A. 22–4906

refers to “convictions,” not “adjudications.” The State agreed that Buser's juvenile adjudication could not count as a prior conviction to enhance the time period of registration. But the State contended that under the subsequently enacted 2011 amendments to KORA, Buser's registration term as a first-time offender had been increased to 25 years. Buser's reply brief argued that he should only be subject to the 10–year registration term in effect when he committed his crime, because retroactively imposing a longer registration term based upon the 2011 amendments to KORA violated the Ex Post Facto Clause.

The Court of Appeals found that the State was correct in conceding that the district court erred in imposing a lifetime registration term. State v. Buser, No. 105,982, 2013 WL 1149655, at *6 (Kan.App.2013)

(unpublished opinion). But the panel also found that the 2011 amended registration term of 25 years could be applied retroactively to Buser. 2013 WL 1149655, at *9. Accordingly, the Court of Appeals remanded the case to the district court for “correction of the duration of time Buser must register under KORA.” 2013 WL 1149655, at *10.

Buser petitioned this court for review on the sole issue of whether the Court of Appeals violated the Ex Post Facto Clause when it held that Buser was required to register under KORA for 25 years instead of 10 years. This court granted Buser's petition for review, together with two other cases with related issues: Doe v. Thompson, 304 Kan. ––––, ––– P.3d ––––, 2016 WL 1612872 (No. 110,318

, this day decided) (2016), and State v. Redmond, 304 Kan. ––––, 371 P.3d 900, 2016 WL 1612917 (No. 110,280, this day decided) (2016).

Retroactive Application of KORA 2011 Amendments

The 2011 version of KORA's statutory scheme purported to apply to any person who was convicted of any sexually violent crime on or after April 14, 1994. K.S.A. 2011 Supp. 22–4902(b)

(defining “sex offender”). Indecent liberties with a child is statutorily designated as a “sexually violent crime.” K.S.A. 2011 Supp. 22–4902(c)(2). Accordingly, Buser's 2009 conviction for a sexually violent crime made him subject to the additional and enhanced provisions of the 2011 statutory scheme, including the increased time period for a first-time offender.

But legislative acts must comport with our federal and state constitutions, and Article I, § 10, of the United States Constitution provides, in relevant part, that “[n]o State shall ... pass any ... ex post facto Law.” One category of ex post facto laws is “ ‘ “any statute ... which makes more burdensome the punishment for a crime, after its commission.” ’ ” State v. Todd, 299 Kan. 263, 277, 323 P.3d 829 (2014)

(quoting Beazell v. Ohio, 269 U.S. 167, 169–70, 46 S.Ct. 68, 70 L.Ed. 216 [1925] ). Yet, “[t]he constitutional prohibition on ex post facto laws applies only to penal statutes.” State v. Myers, 260 Kan. 669, 677, 923 P.2d 1024 (1996). Consequently, the question of whether the 2011 version of KORA can be constitutionally applied retroactively to Buser will be resolved by determining whether the amended statutory scheme is punitive.

Standard of Review

“When the application of a statute is challenged on constitutional grounds, this court exercises an unlimited, de novo standard of review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996)

.” State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008).

Analysis

In upholding the constitutionality of retroactively applying the 2011 KORA provisions, the Court of Appeals relied in part on this court's decision in Myers, as the panel determined it had been modified by the United States Supreme Court's subsequent holdings in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003)

. On review, Buser acknowledges the hurdles that those cases present, but he argues that his case is factually distinguishable in that the 2011 version of KORA is far more punitive in nature than the statutes reviewed in Myers and Smith. We agree.

State v. Myers

Myers considered whether a previous registration act, the Kansas Sex Offender Registration Act (KSORA), could be applied to a person who had committed the qualifying offense prior to the 1994 effective date of KSORA. See L. 1994, ch. 107, secs. 1–7. Myers claimed that the retroactive application of KSORA's reporting and disclosure requirements violated the Ex Post Facto Clause. The State conceded that KSORA was being retroactively applied to Myers but argued that the intent and purpose of KSORA was regulatory, rather than punitive, and the Ex Post Facto Clause did not apply.

The Myers court agreed with part of the State's argument, finding that while KSORA contained no express statement of legislative intent or purpose, “the legislative history suggests a nonpunitive purpose—public safety.” 260 Kan. at 681, 923 P.2d 1024

. But Myers ' analysis did not end with legislative intent. Rather, the Myers court recognized that it had to make the additional determination of “whether the ‘statutory scheme was so punitive either in purpose or effect as to negate that [legislative] intention.’ United States v. Ward, 448 U.S. 242, 248–49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980).” 260 Kan. at 681, 923 P.2d 1024.

Ultimately, Myers opined that KSORA's registration requirements were remedial and could apply retroactively to Myers. In contrast, the court held that “KSORA's disclosure provision must be considered punishment.” 260 Kan. at 699, 923 P.2d 1024

. While holding that the legislative aim was not to punish and retribution was not an intended purpose of the legislation, Myers reasoned “that the repercussions, despite how they may be justified, are great enough under the facts of this case to be considered punishment.” 260 Kan. at 699, 923 P.2d 1024. Further, Myers opined that the unrestricted public access to the registry was excessive and went beyond what was necessary to promote public safety. 260 Kan. at 699, 923 P.2d 1024. Consequently, Myers declared that “[t]o avoid the ex post facto characterization, public access [to registration information] should be limited to those with a need to know the information for public safety purposes” and that those authorized to access the information should only use it for public safety purposes. 260 Kan. at 700, 923 P.2d 1024.

The Court of Appeals opined that it was duty-bound to follow Myers ' holding that the registration requirements of KORA's predecessor did not violate the Ex Post Facto Clause, but that it was also duty-bound to follow the United States Supreme Court's holdings in Smith. Without explicitly stating as much, the panel suggested that Myers ' ruling on this State's disclosure provisions had been overruled by Smith. Buser, 2013 WL 1149655, at *8–9

.

Smith v. Doe

Smith considered an Ex Post Facto Clause challenge to the Alaska Sex Offender Registration Act (ASORA). Although it was the first time the high court had considered the precise issue, the Supreme Court applied its well-established framework of (1) determining whether the legislature's intention was to enact a “a regulatory scheme that is civil and nonpunitive” and, if so, (2) “examin[ing] whether the statutory scheme is ‘ “so punitive either in purpose or effect as to negate [the State's] intention” to deem it “civil.” ’ ” 538 U.S. at 92, 123 S.Ct. 1140

(quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 [1997] ). This framework is often referred to as the “intent-effects” test. See, e.g.,

Moore v. Avoyelles Correctional Center, 253 F.3d 870, 872 (5th...