State v. Cook

• Decision Date: 25 July 2008
• Docket Number: No. 98,671.,98,671.
• Citation: 187 P.3d 1283
• Parties: STATE of Kansas, Appellant, v. Larhon COOK, Appellee.
• Court: Kansas Supreme Court

187 P.3d 1283

STATE of Kansas, Appellant, v. Larhon COOK, Appellee.

No. 98,671.

Supreme Court of Kansas.

July 25, 2008.

Robbin L. Wasson, assistant district attorney, argued the cause, and Josh Osborn, legal intern, and Paul J. Morrison, attorney general, were with her on the brief for the appellant.

Janine A. Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for the appellee.

The opinion of the court was delivered by ROSEN, J:

This appeal by the State of Kansas comes before the court on transfer from the Court of Appeals. The district court dismissed a charge of failure to register as a sex offender, K.S.A. 2006 Supp. 22-4904, against the defendant, Larhon Cook, finding that the charge violated the constitutional prohibition against ex post facto laws.

An understanding of the chronology of the events leading up to this appeal is critical to resolving the question before us. On August 23, 1999, Cook was convicted of aggravated indecent solicitation of a child. Upon his release from incarceration on September 2, 2005, he completed a sex offender registration form, listing an address at 1604 North 44th Street, Kansas City, Kansas. He filed no additional registration forms after completing the initial form. On December 30, 2005, he was arrested for a domestic battery occurring at 208 New Jersey Street, Kansas City, Kansas. On January 3, 2006, the Kansas Bureau of Investigation sent Cook a registered letter at the address he provided on the registration form. The letter was returned on January 9, 2006, marked "return to sender" and "moved left no address."

Effective July 1, 2006, the Kansas Legislature changed violation of the registration statute from a severity-level 10 nonperson felony to a severity level 5 person felony. L.2006, ch. 212, sec. 20.

On October 26, 2006, Wyandotte County Sheriff's deputies attempted to find Cook at both the North 44th Street and the New Jersey Street addresses. Neighbors told the deputies that Cook no longer lived at either address. On October 31, 2006, the State submitted an affidavit requesting an arrest warrant, and on November 21, 2006, the State filed an information charging Cook with one count of failing to register his address change with the Wyandotte County Sheriff's Department, in violation of K.S.A. 2006 Supp. 22-4904(b), which the information characterized as a severity level 5 person felony.

Cook filed a motion to dismiss or, in the alternative, to quash the information and warrant. The district court entered an order finding that K.S.A.2006 Supp. 22-4903, as applied to this case, violated the constitutional prohibition against ex post facto laws. The court ordered Cook tried for a severity level 10 felony instead of a severity level 5 felony. After denying the State's motion to reconsider, the court dismissed the charge in its entirety. The State took a timely appeal, which was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3018(c).

ANALYSIS

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), cert. denied 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997). We presume that legislative enactments are constitutional and resolve all doubts in favor of a statute's validity. State v. Wilkinson, 269 Kan. 603, 606, 9 P.3d 1 (2000). We will not declare a statute unconstitutional as applied unless it is clear beyond a reasonable doubt that the statute infringes on constitutionally protected rights. See 269 Kan. at 606, 9 P.3d 1.

The Statutes

The Kansas Legislature created the Habitual Sex Offender Registration Act in 1993. L.1993, ch. 253, secs. 17-20, originally codified as K.S.A.1993 Supp. 22-4901 et seq. The Act originally provided for compulsory registration of habitual violent sex offenders and made violations of the Act class A nonperson misdemeanors. The Act has been amended a number of times in subsequent legislative sessions. In 1997, the legislature changed the name to the Kansas Offender Registration Act. L.1997, ch. 181, sec. 7. In 1999, the legislature increased the penalty for violating the Act to a severity level 10 nonperson felony. L.1999, ch. 164, sec. 30.

In 2006, the legislature amended the Act in two ways that are significant to this appeal. The legislature raised the severity level to a severity level 5 person felony. K.S.A.2006 Supp. 22-4903. The legislature also provided that a new crime was committed for every 30 days that no registration was filed, adding the following language to the statute:

"Any violation of any provision of [the Kansas Offender Registration Act], including a violation of the duties set forth in K.S.A. 22-4904 through K.S.A. 22-4907, and amendments thereto, which continues for more than 30 consecutive days shall, upon the 31st consecutive day, constitute a new and separate offense and shall continue to constitute a new and separate offense upon completion of every 30 days thereafter for as long as the offense continues." K.S.A.2006 Supp. 22-4903(a).

These amendments became effective on July 1, 2006. L.2006, ch. 212, secs. 20, 26.

In both the earlier and amended versions of the Act, a person subject to the Act was required to provide written notification of any change in residential address within 10 days of the address change. See K.S.A. 22-4904(b)(1) (Furse 1995); K.S.A.2006 Supp. 22-4904(b). The Act also provided that the Kansas Bureau of Investigation was to mail a verification form to the last reported address of the person, who was to fill in the address and other information and return the form to the KBI within 10 days of receiving the form. K.S.A.2006 Supp.22-4904(c).

Constitutional Challenges to the Kansas Offender Registration Act

This appeal is the latest of a series of cases in which parties have challenged the constitutionality of the Kansas Offender Registration Act as it applied to them.

In Myers, 260 Kan. 669, 923 P.2d 1024, this court ruled that the offender registration act is remedial in nature and does not violate the constitutional prohibition against ex post facto laws. The court found that the Act's public-disclosure requirements, however, are punitive and may not be applied retroactively. 260 Kan. at 671, 699-70, 923 P.2d 1024. In State v. Hemby, 264 Kan. 542, 554-56, 957 P.2d 428 (1998), the court considered whether application of the Act to offenders who committed their crimes before the effective date of the Act violated the ex post facto prohibition. The court reaffirmed the Myers holdings that registration is not punitive and creates no ex post facto conflict. In State v. Scott, 265 Kan. 1, Syl. ¶ 4, 961 P.2d 667 (1998), and State v. Snelling, 266 Kan. 986, Syl. ¶ 1, 975 P.2d 259 (1999), the court upheld the Act against constitutional challenges relating to cruel and unusual punishment. In Wilkinson, 269 Kan. 603, Syl. ¶¶ 8, 9, 9 P.3d 1, this court found no due process violation in a registration requirement that does not allow a hearing to determine the degree of threat posed by the defendant.

In State v. Armbrust, 274 Kan. 1089, 59 P.3d 1000 (2002), we considered a situation in which defendants who failed to register with law enforcement entities were convicted of underlying sex offenses committed when violating the registration act was a misdemeanor. Following amendments to the Act, the State charged the defendants with severity level 10 felonies. The district court dismissed the charges as contravening the Ex Post Facto Clause. We found no constitutional violation in the charges, because the crime at hand-failure to register as a sex offender-was committed after the statutory amendments. 274 Kan. at 1094, 59 P.3d 1000. We relied on United States v. Allen, 886 F.2d 143, 146 (8th Cir.1989), for the proposition that if the actual crime for which a defendant is being sentenced was committed after the effective date of the new statute, there is no ex post facto violation. 274 Kan. at 1093, 59 P.3d 1000.

The Prohibition Against Ex Post Facto Penalties

Cook argued, and the district court agreed, that prosecuting him for a severity level 5 offense violated the prohibition against ex post facto laws.

The United States Constitution provides: "No State shall ... pass any ... ex post facto Law." U.S. Const. Art. I, § 10, cl. 1; see also U.S. Const. Art. I, § 9, cl. 3 (prohibiting Congress from passing ex post facto laws).

The framers of the United States Constitution had three purposes in prohibiting retroactive application of laws. First, they sought to assure that legislative acts give fair warning of their effect and permit individuals to rely on those acts until they are explicitly changed. Second, they sought to restrict governmental power by restraining arbitrary and potentially vindictive legislation. Finally, they sought to uphold the separation of powers by confining the legislature to penal decisions with prospective effect and the judiciary and executive to applications of existing penal laws. Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).

"[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. [Citations omitted.]" Weaver, 450 U.S. at 29, 101 S.Ct. 960.

Not only the retroactive criminalization of an act, but also the retroactive increase in the severity of punishment may violate ex post facto prohibitions. "The enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty" after the fact. Calder v. Bull, 3 U.S. (3 Dall.) 386, 397, 1 L.Ed. 648 (1798). "An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed." Fletcher v. Peck, ...