State v. N.R., 119

CourtUnited States State Supreme Court of Kansas
Writing for the CourtPER CURIAM:
PartiesState of Kansas, Appellee, v. N.R., Appellant.
Decision Date17 September 2021
Docket Number796,119

State of Kansas, Appellee,
v.

N.R., Appellant.

No. 119, 796

Supreme Court of Kansas

September 17, 2021


SYLLABUS BY THE COURT

1. Mandatory lifetime postrelease registration under the Kansas Offender Registration Act, K.S.A. 2020 Supp. 22-4901 et seq., as applied to the juvenile sex offender in this case, does not constitute punishment for purposes of applying provisions of the Ex Post Facto Clause of the United States Constitution.

2. Mandatory lifetime postrelease registration under the Kansas Offender Registration Act, K.S.A. 2020 Supp. 22-4901 et seq., as applied to the juvenile sex offender in this case, does not constitute punishment for purposes of applying provisions of the Eighth Amendment of the United States Constitution and section 9 of the Kansas Constitution Bill of Rights.

3. Mandatory lifetime postrelease registration under the Kansas Offender Registration Act, K.S.A. 2020 Supp. 22-4901 et seq., as applied to the juvenile sex offender in this case, does not infringe on the constitutional rights guaranteed under sections 1 and 18 of the Kansas Constitution Bill of Rights.

Review of the judgment of the Court of Appeals in 57 Kan.App.2d 298, 451 P.3d 877 (2019).

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, JUDGE.

Rick A. Kittel, of Kansas Appellate Defender Office, argued the cause, and was on the briefs for appellant.

Jennifer Harper, assistant district attorney, argued the cause, and Thomas R. Stanton, district attorney, Keith E. Schroeder, former district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

PER CURIAM:

N.R. pled guilty to rape and was adjudicated a juvenile offender. As a result of this adjudication, he was required to register as a sex offender for five years under the Kansas Offender Registration Act (KORA). See K.S.A. 2006 Supp. 22-4906. Later amendments to KORA required N.R. to register for life. See K.S.A. 2020 Supp. 22-4906(d)(1), (h).

After failing to register in 2016, the State charged N.R. with violating KORA. N.R. moved to dismiss the charge, arguing that the lifetime registration requirements violated federal and state constitutional provisions against cruel and unusual punishment and the Ex Post Facto Clause of the United States Constitution. The district court denied the motion. The Court of Appeals affirmed, finding the lifetime registration requirements are not punishment as applied to N.R. and therefore do not trigger any of the constitutional provisions identified. On review, N.R. challenges the panel's holding. For the reasons stated below, we affirm.

FACTS

In August 2006, N.R. pled guilty to and was adjudicated of rape, a level 1 person felony. N.R. was 14 years old at the time he committed the offense. The magistrate judge sentenced N.R. to 24 months in a juvenile correctional facility but placed N.R. on 24 months' probation with community corrections. In November 2006, the magistrate judge additionally ordered N.R. to register "locally only, as a sex offender." N.R. was not required at that time to publicly register statewide or nationally. Although the magistrate judge's order did not specify how long N.R. would have to register locally, the statute in effect at the time of the adjudication-K.S.A. 2006 Supp. 22-4906(h)(1)-required N.R. to register for five years from the date of his adjudication.

In July 2011, just before N.R.'s registration period was about to expire, the Kansas Legislature substantially amended KORA. As a result of these amendments, N.R. was required to register for life. See K.S.A. 2011 Supp. 22-4906(h).

In June 2017, the State charged N.R. with four counts of failing to register pursuant to KORA. The complaint later was amended down to two counts. One count stemmed from an incident in August 2016, when N.R. was removed from his transitional housing program. N.R. was supposed to report in person to the Reno County Sheriff's Office within three days of his removal from the program because it constituted a change of residential address. He failed to do so. As for the other count, N.R. failed to report in person to the Reno County Sheriff's Office during the month of September 2016 as required. Because he had a previous registration violation, both of the 2016 charges were scored as level 5 person felonies.

Before trial, N.R. filed a motion to dismiss the case. Relevant here, N.R. argued KORA's mandatory lifetime registration requirements for juvenile sex offenders violate 3 federal and state constitutional provisions against cruel and unusual punishment and the Ex Post Facto Clause of the United States Constitution. The State opposed the motion, claiming dismissal was inappropriate based on this court's decision in State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016), which held that KORA's lifetime registration requirements for adult offenders are not punitive and therefore are not subject to a punishment or ex post facto constitutional analysis.

At the hearing on the motion to dismiss, N.R. introduced two affidavits to support his motion: one from his fiancee and one from himself. As discussed further below, there is some dispute as to whether these affidavits were admitted into evidence. Each affidavit purportedly explained the various ways in which KORA's lifetime registration requirements specifically act as a punishment for N.R., his fiancee, and his young child. Both affidavits described how difficult it was for them to find and secure housing due to N.R.'s status as a sex offender; how hard it was for N.R. to find and maintain employment; how the $20 reporting fee imposed additional financial strain on the family because they already were a low-income household; how N.R. continued to struggle with his sobriety because treatment facilities and sober living houses across Kansas would turn him away due to his status, which led to homelessness and seeking shelter in drug houses; how neighbors and community members ostracized N.R. and his family when those individuals learned of his status, including two occasions where N.R. was threatened at gunpoint; how N.R. and his fiancee feared for their child's safety; how N.R. was concerned about not being able to participate in his child's school activities due to his status; how N.R. suffered from depression as a result of the lifetime registration requirements; and how N.R. attempted suicide as a result of his depression. The State reiterated the arguments from its response brief. After considering counsel's arguments, the district court denied N.R.'s motion to dismiss based on this court's decision in Petersen-Beard holding that KORA lifetime registration requirements for adult offenders are not punitive.

The matter proceeded to a bench trial on stipulated facts. The district court ultimately found N.R. guilty and convicted him on both amended counts. The court sentenced him to 49 months in prison but granted N.R.'s request for a downward dispositional departure and ordered him to serve 36 months' probation with community corrections. N.R. timely appealed his conviction and sentence.

A panel of the Court of Appeals affirmed the district court's decision to deny the motion to dismiss, holding that KORA's lifetime registration requirements as applied to N.R. do not constitute punishment and therefore do not violate state and federal cruel and unusual punishment provisions or federal ex post facto provisions in N.R.'s case. See State v. N.R., 57 Kan.App.2d 298, Syl. ¶¶ 2-4, 302-03, 308-10, 451 P.3d 877 (2019) (relying on State v. Rocheleau, 307 Kan. 761, 765, 415 P.3d 422 [2018]; State v. Marinelli, 307 Kan. 768, 786, 415 P.3d 405 [2018]; State v. Reed, 306 Kan. 899, 904, 399 P.3d 865 [2017]; Petersen-Beard, 304 Kan. at 209).

N.R. timely petitioned for review challenging the panel's constitutional findings.

ANALYSIS

N.R. challenges the constitutionality of KORA's mandatory lifetime registration requirements as applied to him: a 14-year-old juvenile who committed a triggering offense under KORA that now requires him to register as a sex offender for the rest of his life. He makes no specific argument in his petition for review or in his supplemental brief that KORA as applied generally to juvenile sex offenders is punitive for the purposes of accessing certain constitutional protections. Instead, N.R. claims that KORA's mandatory lifetime registration requirements as applied to the facts of his particular case constitute punishment that violates the federal Ex Post Facto Clause, violates the prohibition against cruel and unusual punishment under the Eighth Amendment of the United States Constitution and section 9 of the Kansas Constitution Bill of Rights, and-for the first time on review-infringes on the constitutional rights guaranteed under sections 1 and 18 of the Kansas Constitution Bill of Rights.

The constitutionality of a statute is a question of law over which we exercise unlimited review. This court presumes that statutes are constitutional and must resolve all doubts in favor of a statute's validity. State v. Gonzalez, 307 Kan. 575, 579, 412 P.3d 968 (2018).

N.R. acknowledges that his constitutional ex post facto and cruel and unusual punishment challenges are viable only if we find the lifetime registration requirements are punishment as applied to him. Given this initial hurdle, we begin our discussion with a brief review of the existing caselaw on the underlying issue of punishment.

Relevant caselaw

Both the United States Supreme Court and this court generally have held, without reference to age, that mandatory lifetime sex offender registration is not punishment. In 2003, the United States Supreme Court applied the intent-effects test to decide whether registration requirements under the Alaska Sex Offender Registration Act (ASORA) constituted punishment for ex post facto purposes. Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155...

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