State v. Snelling, 80,308

• Citation: 975 P.2d 259,266 Kan. 986
• Decision Date: 05 March 1999
• Docket Number: No. 80,308,80,308
• Parties: STATE of Kansas, Appellant, v. Nathan SNELLING, Appellee.
• Court: United States State Supreme Court of Kansas

Page 259

975 P.2d 259

266 Kan. 986

STATE of Kansas, Appellant, v. Nathan SNELLING, Appellee.

No. 80,308.

Supreme Court of Kansas.

March 5, 1999.

Syllabus by the Court

1. The registration and notification provisions of the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., are not deemed inhumane, shocking, barbarous, or contrary to fundamental notions of human dignity so as to constitute cruel and unusual punishment.

2. Trial courts are not allowed to pick and choose when and if the public access provisions of the Kansas Offender Registration Act are applied.

Joe Shepack, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the briefs for appellant.

Elizabeth Seale Cateforis, assistant appellate defender, argued the cause, and Hazel Haupt, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were on the brief for appellee.

LARSON, J.:

This is the State's appeal under K.S.A. 22-3601(b)(2) of the trial court's determination that applying the public access provisions of the Kansas Offender Registration Act (Act), K.S.A. 22-4901 et seq., to 17-year-old Nathan Snelling's conviction of indecent solicitation of a 15-year-old in violation of K.S.A. 21-3510(a)(1) constituted unconstitutional cruel and unusual punishment under the authority of State v. Scott, 24 Kan.App.2d 480, 947 P.2d 466 (1997).

The result we now reach was foretold when we granted a petition for review of the Scott decision and reversed the Court of Appeals by holding under the facts of Scott, that

"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." State v. Scott, 265 Kan. 1, Syl. p 4, 961 P.2d 667 (1998).

The 1997 Kansas Legislature amended the statutes in issue, effective July 1, 1997, to include "violent offenders" and the Act was directed in K.S.A.1997 Supp. 22-4901 to be cited as the Kansas Offender Registration Act. The Scott reference to the Kansas Sex Offender Registration Act and our referral in this opinion to the Act apply to the same general provisions.

Snelling (1) questions our jurisdiction to hear this appeal, arguing the trial court's ruling was not that the public access provisions of the Act were unconstitutional, (2) contends the trial court may determine that the public access provisions of the Act constitute cruel and unusual punishment so as to be unconstitutional under the facts of this case, and (3) argues the decision to restrict public access was based on substantial competent evidence.

These contentions require an understanding of the facts giving rise to this appeal.

Snelling's post-July 1, 1997, actions and plea of no contest to a charge of indecent solicitation of a child over the age of 14, but under the age of 16, a K.S.A. 21-3510(a)(1) level 7 person felony, resulted from consensual sexual intercourse with 15-year-old, C.K. Snelling said he thought C.K. was older because she had worked at a theater where the minimum employment age was 16.

C.K. said she hoped the sex would "bring them closer together." This was not achieved because she was removed from her foster residence and said sex with Snelling caused her to experience "lower self-esteem." As to the sentencing, C.K. said "I never said no, so I don't think he should get any bad sentence."

Snelling received a 12-month prison sentence, suspended with 24 months of probation. He was ordered to register as a sex offender under the Act, but the trial court reviewed the Scott Court of Appeals' opinion and said Snelling's circumstances were less egregious than Scott's, resulting in a holding that the public access provisions of the Act constituted cruel and unusual punishment. This resulted in an order that the registration "shall not be open to inspection by the public or subject to the provisions of the Kansas Open Records Act." It is from this order that the State has appealed.

We first consider Snelling's argument that we do not have jurisdiction to hear the State's appeal. This is a question of law over which our review is unlimited. See In re Marriage of Killman, 264 Kan. 33, 34, 955 P.2d 1228 (1998).

Snelling contends the Act was not found unconstitutional, but the trial court simply ruled that as to him the public disclosure provisions of K.S.A.1998 Supp. 22-4909 should not be applied.

The State more logically argues the decision not to give effect to the public access provisions because they constitute cruel and unusual punishment is in fact a declaration that those provisions are unconstitutional.

Snelling's attempt to justify his position by contending it is supported by State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996), is misplaced. We upheld the registration requirements in Myers, but ruled the public disclosure provision, "K.S.A. 22-4909, imposes punishment in violation of the Ex Post Facto Clause." 260 Kan. 669, Syl. p 1, 923 P.2d 1024. While the same disclosure provision may be in issue in both cases, Myers was granted relief because the crime for which he pled was committed prior to the enactment of the Kansas Sex Offender Registration Act. Our Myers opinion refused to address a cruel and unusual punishment argument which was raised for the first time on appeal. Myers is factually and legally distinguishable and does not apply to...