State v. Davidson

• Decision Date: 17 September 2021
• Docket Number: No. 119,759,119,759
• Citation: 495 P.3d 9
• Parties: STATE of Kansas, Appellee, v. Lonnie A. DAVIDSON, Appellant.
• Court: Kansas Supreme Court

495 P.3d 9

STATE of Kansas, Appellee,

v.Lonnie A. DAVIDSON, Appellant.

No. 119,759

Supreme Court of Kansas.

Opinion filed September 17, 2021.

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, 377 P.3d 1127. 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, 377 P.3d 1127.

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 provision violates the Ex Post Facto Clause. Under this test, the court first determines whether the Legislature intended the statute to establish a civil proceeding. Smith v. Doe , 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) ; Petersen-Beard , 304 Kan. at 194, 377 P.3d 1127. If the Legislature intended to impose punishment, the inquiry ends, and the provision is deemed an ex post facto law. But if the Legislature intended to enact a civil and nonpunitive regulatory scheme, the court then must examine whether the statutory scheme is so punitive–either in purpose or effect–as to negate the Legislature's civil intent. Smith , 538 U.S. at 92, 123 S.Ct. 1140 ; Petersen-Beard , 304 Kan. at 194, 377 P.3d 1127.

In 2003, the United States Supreme Court applied the "intent-effects" test in an ex post facto challenge to the Alaska Sex Offender Registration Act (ASORA). The Court ultimately held ASORA was nonpunitive and therefore its retroactive application did not violate the Ex Post Facto Clause. Smith , 538 U.S. at 105-06, 123 S.Ct. 1140. The Court first concluded that the Alaska Legislature's intent "was to create a civil, nonpunitive regime." 538 U.S. at 96, 123 S.Ct. 1140. The Court then determined that the statute's registration and notification requirements were not sufficiently punitive to overcome this legislative intent. As a result, the Court held that ASORA's retroactive application did not violate the Ex Post Facto Clause of the United States Constitution. 538 U.S. at 105-06, 123 S.Ct. 1140. Interestingly, the Alaska Supreme Court later used the same intent-effects test utilized by the Smith Court to find ASORA violated the Ex Post Facto Clause of the Alaska state constitution . See Petersen-Beard , 304 Kan. at 224, 377 P.3d 1127 (Johnson, J., dissenting). The Alaska Supreme Court concluded:

"Because ASORA compels (under threat of conviction) intrusive affirmative conduct, because this conduct is equivalent to that required by criminal judgments, because ASORA makes the disclosed information public and requires its broad dissemination without limitation, because ASORA applies only to those convicted of crime, and because ASORA neither meaningfully distinguishes between classes of sex offenses on the basis of risk nor gives offenders any opportunity to demonstrate their lack of risk, ASORA's effects are punitive. We therefore conclude that the statute violates Alaska's ex post facto clause." Doe v. State , 189 P.3d 999, 1019 (Alaska 2008).

Other states similarly have relied on their state constitutions to prohibit retroactive application of sex offender registration statutes. See Wallace v. State , 905 N.E.2d 371, 377-78, 384 (Ind. 2009) ; Doe v. Dept. of Public Safety and Correctional Services , 430 Md. 535, 547-48, 553, 62 A.3d 123 (2013) ; State v. Williams , 129 Ohio St. 3d 344, 347-49, 952 N.E.2d 1108 (2011) ; Starkey v. Oklahoma Dept. of Corrections , 305 P.3d 1004, 1030 (2013).

But Kansas does not have a specific Ex Post Facto Clause in our state Constitution. State v. Todd , 299 Kan. 263, 276, 323 P.3d 829 (2014). As a result, this court is bound by the United States Supreme Court's interpretation of the United States Constitution. See Howlett v. Rose , 496 U.S. 356, 367-69 n.16, 110 S. Ct. 2430, 110 L. Ed. 2d 332 (1990) (The Supremacy Clause declares federal law the "supreme law of the land," and state courts must enforce it "in the absence of a valid excuse."). Accordingly, our inquiry becomes whether KORA, as amended in 2011, is sufficiently distinct from ASORA that it mandates a different result under the federal Constitution.

As Davidson acknowledges, this court addressed the punitive nature of KORA in four opinions filed on the same day in 2016. In three of the opinions, a majority of the court held that KORA, as amended in 2011, was punitive in effect and that its retroactive application to any sex offender who committed a registerable offense before July 1, 2011, violated the Ex Post Facto Clause. Doe v. Thompson , 304 Kan. 291, 327-28, 373 P.3d 750 (2016) ; State v. Redmond , 304 Kan. 283, 289-90, 371 P.3d 900 (2016) ; and State v. Buser , 304 Kan. 181, 190, 371 P.3d 886 (2016).

The fourth opinion, Petersen-Beard , considered whether KORA, as amended in 2011, constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. To resolve this issue, the majority performed a traditional ex post facto analysis because the first step of an Eighth Amendment inquiry is to determine whether the practice at issue constitutes punishment. 304 Kan. at 196, 377 P.3d 1127. A different majority—due to a change in the court's composition since Thompson , Redmond , and Buser were argued—ultimately ruled that KORA was nonpunitive. The majority first found that the Legislature did not intend for KORA's lifetime sex offender registration scheme to be punitive. 304 Kan. at 195, 377 P.3d 1127. The majority then determined that the burdens imposed by KORA's registration requirements were not so onerous as to constitute punishment for purposes of applying the federal Constitution...