State v. Scott, 75684

CourtUnited States State Supreme Court of Kansas
Writing for the CourtLARSON; At the sentencing hearing
Citation265 Kan. 1,961 P.2d 667
PartiesSTATE of Kansas, Appellee, v. Clifford A. SCOTT, Appellant.
Docket NumberNo. 75684,75684
Decision Date29 May 1998

Page 667

961 P.2d 667
265 Kan. 1
STATE of Kansas, Appellee,
v.
Clifford A. SCOTT, Appellant.
No. 75684.
Supreme Court of Kansas.
May 29, 1998.

Page 668

SYLLABUS BY THE COURT

1. The Cruel and Unusual Punishment Clauses of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights are nearly identical and are to be construed similarly.

2. In deciding whether a punishment is cruel and unusual, we consider whether the method and effect of the punishment is inhumane, barbarous, inherently cruel, shocking, unacceptable, or offends human dignity.

3. It is the legislature's prerogative to make policy decisions and specify punishments for crime. The legislature has the right to determine that sex offenders pose a unique threat to society such that they are subject to registration and public disclosure requirements when other types of offenders are not.

4. Under the facts of this case, the punitive effect of the registration and notification provisions of the Kansas Sex Offender Registration Act resulting from an interest in public safety are not so disproportionate to defendant's violent, sexually motivated crime that such registration and public access is deemed inhumane, shocking, barbarous, or contrary to fundamental notions of human dignity so as to constitute cruel and unusual punishment.

Rick Kittel, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the supplemental and reply briefs for appellant; Edward G. Collister, Jr., Special Appellate Defender, was on the brief for appellant.

Carla J. Stovall, Attorney General, argued the cause, and Nancy Siples Brumbeloe, Assistant District Attorney, and Joan M. Hamilton, District Attorney, were with her on the brief for appellee; Kelli L. Newton, Assistant Attorney General, was on the supplemental brief for appellee.

[265 Kan. 2] Kelly A. Feyh, assistant attorney general, was on the brief for amicus curiae, attorney general, Carla J. Stovall.

LARSON, Justice:

This first impression case in Kansas reviews a decision by the Court of Appeals, State v. Scott, 24 Kan.App.2d 480, 947 P.2d 466 (1997), holding the public access provisions of the Kansas Sex Offender Registration Act (KSORA), K.S.A. 22-4901 et seq. constitute cruel and unusual punishment. Clifford Allen Scott was convicted of attempted aggravated sexual battery and placed on probation. Scott appealed the trial court's order that he register pursuant to the provisions of the KSORA. The Court of Appeals determined that in Scott's case the public access provisions of the KSORA were cruel and unusual and ordered that his registration should not be open to inspection by the public or subject to the Kansas Open Records Act, K.S.A. 45-215 et seq.

Factual statement

In July 1995, Scott brought alcohol to the apartment of a former co-employee (J.R.). The two drank and watched T.V. for awhile, until J.R. went to her room to go to bed, leaving Scott to sleep on the sofa. J.R. awoke to find Scott in her room asking to have sex with her and attempting to fondle her.

J.R. repeatedly told Scott not to touch her and that she did not want to have sex with him. Scott persisted and attempted to remove J.R.'s nightclothes. When J.R. resisted Scott's advances, he dragged her from her room and started beating, kicking, and stomping her.

The police were notified. The two officers dispatched to J.R.'s apartment found her with a bloody nose and dressed in a robe spotted with blood. J.R. stated Scott had hit her, fondled her, and requested sex. J.R. went to an emergency room where she was diagnosed with numerous fractured ribs. J.R. also suffered bruises and pain to her face, arms, and legs.

Scott was charged with aggravated sexual battery, K.S.A. 21-3518(a)(1), a severity level

Page 669

5, person felony, and aggravated battery, K.S.A. 21-3414(a)(1)(C), a severity level 7, person felony. J.R. appeared in court and testified regarding Scott's attack.

[265 Kan. 3] Scott ultimately entered into a plea agreement whereby he pled no contest to an amended count of attempted aggravated sexual battery, K.S.A. 21-3301 and K.S.A. 21-3518(a)(1), a severity level 7, person felony. The State dismissed the aggravated battery charge. Before accepting Scott's plea, the court informed him he would be required to register as a sex offender. Scott acknowledged he understood this.

At the sentencing hearing, J.R. made the following statement:

"I am addressing this plea to the Shawnee County Courthouse ... to let you know that I'm not at all happy or satisfied with the case, the way it has been handled. The case against Scott Clifford, the defendant, has not been handled with more interest and more seriousness toward me. I'm still suffering because of the injury I received from the crime that Scott Clifford inflicted on me. I lost wages, lost my confidence to trust anyone. I lost--excuse me.

"THE COURT: Go ahead.

"[J.R.]: I can't read it.

"THE COURT: Okay. Counsel, do you want to just read that into the record?

"MS. BRUMBELOE: She says, '... lost peace of mind. I wake up during the night with a cold sweat and have a hard time going back to sleep. I wake up during the night with the nightmare feeling that someone is standing beside my bed. Scott Clifford came to my bedroom, started putting his filthy hand on me and tried to force himself on me and tried to have sex with me and when I tried to tell him no, he started attacking me in a brutal way. This man turned on me like a wild animal, and after what he did to me, he tried to say he doesn't remember anything and he is sorry. Well, sorry doesn't work for me. What happened to me is real and painful. I would like him to pay to the maximum of time and to go in prison so he will not hurt any woman or anybody. This type of crime against any women or children will not be tolerated anymore, and I would like the system to make a serious commitment to take steps for a better future and to punish the criminal to the fullest of time. Thank you."

Scott was sentenced to 14 months in the custody of the Secretary of Corrections. Yet, because he fell within presumptive probation, he was placed on probation for 24 months. The court indicated the legislature had severely limited the court's discretion to make a different sentence, stated it sympathized with J.R.'s request for Scott's imprisonment, and declared Scott's probation would be rigorously supervised. Despite Scott's constitutional objections, the court ordered him to register as a sex offender under the KSORA.

[265 Kan. 4] Scott appealed the order for his registration as a sex offender under the KSORA, alleging the public disclosure provisions were unconstitutional. Scott's arguments on appeal included only his contentions that the registration and disclosure requirement constituted double jeopardy and cruel and unusual punishment. Scott has failed to make any record concerning the effect registration and the public disclosure has had upon him, and we are limited to the record before us.

The Court of Appeals rejected Scott's double jeopardy argument but decided the public access element of the KSORA violated the prohibition against cruel or unusual punishment in § 9 of the Kansas Constitution Bill of Rights.

We granted the State's petition for review. Scott did not request review of the Court of Appeal's determination that the registration provision did not violate the prohibition against double jeopardy. Therefore, our analysis is limited to the single issue of whether the KSORA violates the constitutional restrictions prohibiting cruel and unusual punishment. We hold it does not.

Analysis

The constitutionality of a statute is a question of law, over which we exercise an unlimited standard of review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996). When reviewing the constitutionality

Page 670

of a statute, we must keep in mind the following:

"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." State v. Bryan, 259 Kan. 143, Syl. p 1, 910 P.2d 212 (1996).

Scott has asserted that the KSORA constitutes cruel or unusual punishment as applied to him. K.S.A. 22-4904 of the KSORA provides:

"(a) Within 15 days of the sex offender coming into any county in which the sex offender resides or is temporarily domiciled for more than 15 days, the sex offender shall register with the sheriff of the county."

[265 Kan. 5] K.S.A. 22-4907 requires that the registration include the offender's name, date of birth, offense or offenses committed, date of conviction or convictions, places of conviction, photograph, fingerprints, and social security number. The provisions critical for this appeal are those permitting public access of the registration information, which are set forth in K.S.A. 22-4909 as follows:

"The statements or any other information required by this act shall be open to inspection in the sheriff's office by the public and specifically are subject to the provisions of the Kansas open records act, K.S.A. 45-215 et seq., and amendments thereto."

The Eighth Amendment to the United States Constitution, applicable to the states pursuant to the Fourteenth Amendment, provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Section 9 of the Kansas Constitution Bill of Rights declares: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual...

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