State v. Davidson

• Decision Date: 17 September 2021
• Docket Number: 119,759
• Parties: State of Kansas, Appellee, v. Lonnie A. Davidson, Appellant.
• Court: Kansas Supreme Court

State of Kansas, Appellee,
v.
Lonnie A. Davidson, Appellant.

No. 119, 759

Supreme Court of Kansas

September 17, 2021

SYLLABUS BY THE COURT

Mandatory lifetime postrelease registration under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., does not constitute punishment for purposes of applying provisions of the Ex Post Facto Clause of the United States Constitution.

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 2, 2019.

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge.

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

Peter Maharry, of Kansas Appellate Defender Office, was on the briefs for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

PER CURIAM

Lonnie A. Davidson was convicted of aggravated criminal sodomy in 2002. As a result of this conviction, he was required to register as a sex offender for life under the Kansas Offender Registration Act (KORA). See K.S.A. 2002 Supp. 22-4906(c).

After he failed to register in April 2017, the State charged Davidson with violating KORA, a severity level 5 person felony. Davidson moved to dismiss the charge, alleging that he was told at the time of his aggravated criminal sodomy conviction that he would be required to register under KORA for 10 years but the registration requirement was later increased to life. Davidson argued that retroactive application of KORA's registration requirements violated ex post facto and due process provisions and constituted cruel and unusual punishment under the United States Constitution. Relying on our decisions in State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016), and State v. Reed, 306 Kan. 899, 399 P.3d 865 (2017), holding that KORA registration requirements are not punitive, the district court denied the motion. A jury later convicted Davidson of failing to register. The district court denied Davidson's request for a departure sentence and imposed a 32-month prison term followed by 24 months of postrelease supervision.

Davidson appealed his conviction to the Court of Appeals, arguing that retroactive application of KORA violates the federal constitutional prohibition against ex post facto punishment, infringes on his right to due process, and constitutes cruel and unusual punishment. The panel deemed Davidson's due process and cruel and unusual punishment claims to be waived and abandoned for failing to brief the issues. Bound by our decisions in Petersen-Beard and Reed, the panel held the sex offender registration scheme was not punitive in intent or effect for purposes of an ex post facto analysis and affirmed Davidson's conviction. State v. Davidson, No. 119, 759, 2019 WL 3519064, at *1-2 (Kan. App. 2019) (unpublished opinion). Davidson filed a petition for review, which we granted under K.S.A. 20-3018(b). We exercise jurisdiction pursuant to K.S.A. 60-2101(b).

ANALYSIS

Due process and cruel and unusual punishment

As he did with the panel below, Davidson generally asserts that KORA's retroactive application violates due process and constitutes cruel and unusual punishment. But aside from a single line in the introductory paragraph of his petition for review, Davidson provides no argument in support of these additional claims. Accordingly, we deem the due process and cruel and unusual punishment arguments waived and abandoned. See State v. Lowery, 308 Kan. 1183, 1231, 427 P.3d 865 (2018) (a point raised incidentally but not argued is deemed abandoned).

Ex post facto

Davidson argues the KORA statutory scheme is punitive and, as a result, its retroactive application violates the Ex Post Facto Clause. "The constitutionality of a statute is a question of law over which this court exercises plenary review." Petersen-Beard, 304 Kan. at 194. We begin with the presumption that KORA is constitutional. As we stated in Petersen-Beard:

"'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)." 304 Kan. at 194

Article I, §10 of the United States Constitution states: "No State shall . . . pass any . . . ex post facto Law." Any statute "'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed'" is prohibited as ex post facto. Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. [4 Wall.] 277, 325-26, 18 L.Ed. 356 [1866]).

A plaintiff may raise either a facial or an as-applied challenge under the Ex Post Facto Clause. Garner v. Jones, 529 U.S. 244, 255, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). Davidson challenges the retroactive application of KORA's registration requirements to him, which he claims increased his period of registration from 10 years to life.

We apply an "intent-effects" test to analyze whether a statutory...