State v. Meredith

• Decision Date: 04 August 2017
• Docket Number: No. 110,520,110,520
• Citation: 399 P.3d 859
• Parties: STATE of Kansas, Appellee, v. Steven MEREDITH, Appellant.
• Court: Kansas Supreme Court

399 P.3d 859

STATE of Kansas, Appellee,

v.Steven MEREDITH, Appellant.

No. 110,520

Supreme Court of Kansas.

Opinion filed August 4, 2017

Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause, and Adam D. Stolte, of the same office, was with him on the briefs for appellant.

Bethany C. Fields, deputy county attorney, argued the cause and Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

When Steven Meredith committed his qualifying drug offense, the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq ., required him to register for 10 years. However, the 2011 KORA amendments extended Meredith's registration period to 15 years. For the first time on appeal, Meredith argues that any retroactive imposition of the 15–year registration period violates the Ex Post Facto Clause of the United States Constitution. But the Ex Post Facto Clause is implicated only when punishment is retroactively imposed. We hold that the legislature intended KORA to be a civil, nonpunitive remedial scheme, and Meredith has failed to demonstrate by the clearest proof that KORA's effects on drug offenders are sufficient to overcome the legislature's nonpunitive intent. Therefore, we conclude that the current 15–year KORA registration period applies to Meredith. Accordingly, we affirm and remand for correction of the 2013 nunc pro tunc journal entry of judgment that states otherwise.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2009, Meredith pled no contest to possession of methamphetamine with intent to distribute in violation of K.S.A. 2008 Supp. 65-4161(a). At the time Meredith committed the offense, KORA required him to register as an offender for 10 years. See K.S.A. 22-4902(a)(11)(C) ; K.S.A. 22-4906(a)(1). The district court sentenced Meredith to 24 months' probation and imposed an underlying 30–month prison sentence.

Although the court did not inform Meredith of his duty to register as a drug offender at the plea hearing or sentencing, the 2009 journal entry of judgment stated that Meredith was required to register. However, the journal entry erroneously stated that Meredithviolated K.S.A. 65-4159 or K.S.A. 65-7006 and "such manufacture or possession was for personal use." The offender registration supplement attached to the journal entry showed that Meredith was required to register, but the second page—which would specify the length of registration—is missing from the record on appeal. Thus, the court did not pronounce—and the journal entry did not specify—the number of years Meredith was required to register.

Over the next few years, Meredith struggled to successfully complete his probation. On May 21, 2012, the court terminated Meredith's probation when it discovered that Meredith had tested positive for methamphetamine. The court did not reference Meredith's KORA registration requirement in either open court or in the probation revocation journal entry of judgment.

On February 15, 2013, Meredith moved through counsel "for clarification on the status of the defendant's need to register." In the motion, Meredith noted that he was not informed of any duty to register at the time of his conviction or sentencing. Upon his release from prison in 2012, however, the Department of Corrections ordered Meredith to register. According to the motion, Meredith had since registered. The motion did not assert an ex post facto violation but simply asked the court to "hold a hearing on the matter for final determination." The 2011 KORA amendments had purportedly increased Meredith's registration period to 15 years. See K.S.A. 2011 Supp. 22-4906(a).

On June 4, 2013, the district court held a hearing on Meredith's motion. Defense counsel began the hearing by asking: "I just have two questions to ask the Court: 1.) Whether or not Mr. Meredith should have to register; and 2.) If he does have to register, under which rule should he be registering?" Regarding the first question, the court reviewed the transcript from the plea hearing and concluded it did not make a finding that the possession was for Meredith's personal use. Thus, the court rejected this rationale for not applying KORA.

Regarding the second question, defense counsel argued:

"Just to clarify for Mr. Meredith, since he was convicted in 2008, and sentencing journal entry reflect that, at the time, I believe he had to register for 10 years as a drug offender .... But we're looking now, five years later, once he's finally notified he has to register, and he's been in compliance since January of this year. Which rules would apply to him? He would ask that the 2008 ones apply."

The court ultimately concluded that "the current laws all apply, and there is a three-day window for him reporting most changes in his life. And for the timeframe, 15 years applies." The court ordered that a nunc pro tunc order be prepared to correct the error in the 2009 journal entry of judgment that Meredith was convicted of K.S.A. 65-4159 or K.S.A. 65-7006. The court further found that Meredith was subject to KORA's requirements and the current version of the Act applied.

The district court then filed the 2013 nunc pro tunc entry of judgment, which fixed the error in the original entry but erroneously stated that Meredith's registration period was for 10 years rather than 15 years. Meredith appealed from the June 4, 2013, decision, arguing for the first time that retroactively imposing the increased registration period of 15 years on him violates the Ex Post Facto Clause.

The Court of Appeals affirmed, first holding that the ex post facto claim was procedurally barred because Meredith's counsel did not raise the issue before the district court. The court also affirmed the case on the merits, holding that the current version of KORA does not violate the Ex Post Facto Clause. Lastly, the court remanded the case to the district court to correct the length of registration error through a nunc pro tunc journal entry. State v. Meredith , No. 110,520, 2014 WL 3397182, at *4 (Kan.App. 2014) (unpublished opinion).

We granted Meredith's petition for review.

ANALYSIS

As the Court of Appeals noted, Meredith's ex post facto claim is unpreserved because he failed to raise it in district court.

See, e.g. , State v. Godfrey , 301 Kan. 1041, 1043, 350 P.3d 1068 (2015) (generally, "alleged constitutional violations cannot be raised for the first time on appeal"). Furthermore, Meredith has failed to cite a preservation exception on appeal. See 301 Kan. at 1043, 350 P.3d 1068 ("an exception must be invoked by the party asserting the claim for the first time on appeal"); Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 34). However, Meredith filed his brief before we cautioned in State v. Williams , 298 Kan. 1075, 319 P.3d 528 (2014), that "[f]uture litigants should consider this a warning and comply with Rule 6.02(a)(5) by explaining why an issue is properly before the court if it was not raised below—or risk a ruling that an issue improperly briefed will be deemed waived or abandoned." 298 Kan. at 1085, 319 P.3d 528. As such, we will afford Meredith the benefit of an exception. State v. Swint , 302 Kan. 326, 335, 352 P.3d 1014 (2015).

Meredith argues that retroactive imposition of KORA's 15–year registration period on him—as a drug offender—violates the Ex Post Facto Clause. We recently resolved analogous questions in the context of sex offender registration. In State v. Petersen–Beard , 304 Kan. 192, Syl. ¶¶ 1, 377 P.3d 1127, cert. denied ––– U.S. ––––, 137 S.Ct. 226, 196 L.Ed.2d 175 (2016), we concluded that lifetime sex offender registration does not constitute "punishment" for purposes of applying the federal Constitution and therefore could not violate federal or state constitutional prohibitions against cruel and unusual punishment . In so holding, we recognized that "if KORA's lifetime sex offender registration requirement is punishment for either ex post facto or double jeopardy purposes, it must necessarily also be punishment for Eighth Amendment purposes. The reverse would likewise be true." 304 Kan. at 196, 377 P.3d 1127. In State v. Reed , 306 Kan. ––––, 399 P.3d 865 (No. 110,277, this day decided), 2017 WL 3326944, we explicitly extended the Petersen–Beard holding from an Eighth Amendment context to an ex post facto context. That is, KORA registration for sex offenders is not punishment and, therefore, retroactive application of KORA's tolling provision in K.S.A. 22-4906(b) to sex offenders does not violate the Ex Post Facto Clause. 306 Kan. at ––––, 399 P.3d at 869.

Meredith asks us to deviate from the course we charted in Petersen–Beard and Reed and hold that KORA registration is , in its effect, punishment for the class of offenders to which he belongs—drug offenders. However, the record in this case is insufficiently developed for Meredith to persuasively argue KORA's allegedly punitive effects on drug offenders as a class separate and distinct from sex offenders. Because Meredith has failed to meet his burden, we affirm.

"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 federal Constitution states: "No State shall ... pass any ... ex post facto Law." Any statute "which makes more burdensome the punishment for a crime, after its...