State v. Myers, No. 74078

• Court: United States State Supreme Court of Kansas
• Writing for the Court: SIX
• Citation: 260 Kan. 669,923 P.2d 1024
• Docket Number: No. 74078
• Decision Date: 23 August 1996
• Parties: STATE of Kansas, Appellee, v. Kym E. MYERS, Appellant.

Page 1024

923 P.2d 1024 260 Kan. 669 STATE of Kansas, Appellee,
v.
Kym E. MYERS, Appellant. No. 74078. Supreme Court of Kansas. Aug. 23, 1996.

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Syllabus by the Court

1. The Kansas Sex Offender Registration Act (KSORA), K.S.A. 22-4901 et seq., registration requirements (K.S.A. 22-4904, K.S.A. 22-4906, and K.S.A. 22-4907) are remedial and thus constitutional. However, as

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applied to defendant, the public disclosure provision, K.S.A. 22-4909, imposes punishment in violation of the Ex Post Facto Clause of the United States Constitution, Art. I, § 10. Defendant is required to register under KSORA. However, his registration shall not be open to public inspection and shall not be subject to the provisions of the Kansas Open Records Act, K.S.A. 45-215 et seq.

2. To prevent an ex post facto violation, each sheriff's office shall adopt a record system that prevents public access or disclosure of the statements or any other information required by KSORA of any sex offender required to register whose offense occurred before April 14, 1994. Any such statements or other information shall neither be open to the public nor subject to the provisions of the Kansas Open Records Act.

3. The constitutionality of a statute is a question of law; thus, an appellate court exercises an unlimited, de novo standard of review.

4. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.

5. Article I, Section 10, of the United States Constitution provides: "No State shall ... pass any ... ex post facto Law." Any statute which punishes as a crime an act previously committed that was innocent when done, which makes more burdensome the punishment for a crime after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed is prohibited as ex post facto.

6. The constitutional prohibition against ex post facto laws applies only to penal statutes that disadvantage the offender affected by them.

[260 Kan. 670] 7. The legislative history of KSORA suggests a nonpunitive purpose--public safety. However, even when the legislative intent behind the statute is nonpunitive, the court should ask whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.

8. The legislative aim in the disclosure provision of KSORA was not to punish. Retribution was not an intended purpose. The repercussions, despite how they are justified, are great enough to be considered punishment. The unrestricted public access given to the sex offender registry is excessive and goes beyond that necessary to promote public safety. Because KSORA's disclosure provision makes more burdensome the punishment for a crime after its commission, K.S.A. 22-4909, as applied to defendant, violates the constitutional prohibition against ex post facto laws.

9. The significant date in an ex post facto analysis is the date of the offense, not the date of conviction. To avoid the ex post facto characterization, public access should be limited to those with a need to know the information for public safety purposes. This information should be used by those given access to it only for such purposes. As KSORA is written now, no such measures are in place for the defendant in this case.

10. When constitutional grounds are asserted for the first time on appeal, they are not properly before the court for review. The exceptions set out in State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982), do not apply under the facts in this case.

Rich Kittel, Assistant Appellate Defender, argued the cause, and Stephen C. Moss, Assistant Appellate Defender and Jessica R. Kunen, Chief Appellate Defender, were on the brief, for appellant.

Kelly A. Feyh, Assistant Attorney General, argued the cause, and Carla J. Stovall, Attorney General, was with her on the brief, for appellee.

SIX, Justice:

This difficult case resolves the claim of defendant Kym Myers that the Kansas Sex

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Offender Registration Act (KSORA), [260 Kan. 671] K.S.A. 22-4901 et seq., as applied to him, violates the Ex Post Facto Clause of the United States Constitution. The determinative issue is whether KSORA constitutionally may be applied to Myers, whose offense was committed before April 14, 1994, the date KSORA took effect.

Myers was convicted in 1991 of one count of sexual battery, K.S.A. 21-3517 (Ensley 1988) and one count of rape, K.S.A. 21-3502 (Ensley 1988). The Court of Appeals reversed his convictions and remanded the case for a new trial in an unpublished opinion filed September 3, 1993. We affirmed the Court of Appeals. See State v. Myers, 255 Kan. 3, 872 P.2d 236 (1994). After remand, Myers pleaded no contest on August 15, 1994, to the aggravated sexual battery (K.S.A. 21-3518 [Ensley 1988] ) of his 17-year-old victim, who was assisting her mother in cleaning Myers' law office. Myers was ordered to be processed under KSORA as a "sex offender." A KSORA sex offender is any person convicted of a named offense on or after July 1, 1993. Aggravated sexual battery is a named offense. K.S.A. 22-4902(a), (b)(9), and K.S.A. 22-4910. We note that if Myers' 1991 convictions had been affirmed, he would not be subject to KSORA classification as a sex offender. After his plea in 1994, Myers filed a motion to eliminate the requirement of KSORA registration. He challenged the constitutionality of KSORA as ex post facto legislation violating Art. I, § 10 of the United States Constitution. Myers' motion was denied, and he appealed. Our jurisdiction is under K.S.A. 20-3017. (We granted Myers' motion to transfer to this court.)

We deny Myers' ex post facto claim as to registration. The registration requirements of KSORA (K.S.A. 22-4904, K.S.A. 22-4906, and K.S.A. 22-4907) are remedial and thus constitutional. As applied to Myers, the public disclosure provision, K.S.A. 22-4909, imposes punishment in violation of the Ex Post Facto Clause. Myers is required to register under KSORA. However, his registration shall not be open to public inspection and shall not be subject to the provisions of the Kansas Open Records Act, K.S.A. 45-215 et seq.

Myers asserts, for the first time on appeal, two additional constitutional issues that were not argued before the district court, i.e., [260 Kan. 672] KSORA (1) constitutes cruel and unusual punishment and (2) violates due process guarantees. We do not reach these additional issues.

FACTS

Myers was sentenced to 2 to 5 years after his August 1994 no contest plea. He was given credit for time served in prison and was placed on probation for 1 year. Myers had no prior convictions. The district court ruled, over Myers' objection, that KSORA applied.

Myers raised the ex post facto issue in his pro se brief supporting his motion to modify probation conditions to eliminate registration under KSORA:

"The defendant did thereafter register at the Johnson County Sheriff's Office. Since that time the Defendant's name and address have appeared both on television and in local newspapers naming him as a convicted sex offender. As a result of this the Defendant has been evicted from a rental unit occupied by his family, and is currently on the verge of being evicted and forced to leave his current residence."

The Record Below

At the hearing in the district court, both sides agreed that Myers' motion to eliminate the requirement to comply with KSORA presented a question of law and could be handled by oral argument. The judge responded: "Well, to me if we can handle it by argument and proffers through oral statement, unless you all have some evidence that you want to present on the other side...." After Myers' attorney advanced the ex post facto argument and presented Myers' pro se brief on that issue, Myers requested permission to address the court. The judge admonished him: "Well, Mr. Myers, I'll allow you to speak. Reserve it to whatever legal matter in rebuttal that you might wish to make and that in addition to your brief." Despite the admonishment, during his argument, Myers described his life as a registered sex offender:

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"Now, [registration] has caused me more problems than going to prison. I was evicted from my mother's apartment; left me virtually homeless. I had nowhere to go. I didn't have anyone to rent to me. I didn't know what to do. I had to go [260 Kan. 673] to a halfway house. I've been on television. I've been in--Overland Park publishes this every Friday.

"I can't live like this and every morning I get up to look at the paper--I'm paranoid. I can't take this. I'm about ready to crack, okay? I live with 12 other guys. They are about ready to kick me out on the street. I have no money. I don't know what I'm going to do. At least in prison I knew I had a place to sleep. I would rather go back to prison. I can't do this."

Myers' statements, which were not under oath, went beyond the restrictions that the judge imposed. The State neither objected to nor disputed the statements. The State did not request that Myers testify under oath. Both sides had agreed, and the judge specifically mentioned, that oral proffers could be made.

Although Myers did not specifically designate his statements concerning his housing difficulties as a proffer, under the circumstances, we view them as such. Myers' statements about the consequences he suffered because of registration provide a sufficient record to consider the ex post facto issue.

DISCUSSION

The State asserts that...