Opinion
No. 109,154.
2013-10-25
In the Matter of R.M.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge. Aldo P. Caller, of Caller & Martinez, LLC, of Kansas City, for appellant. Ryan W. Walkiewicz, assistant district attorney, and Jerome A. Gorman, district attorney, for appellee.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge.
Aldo P. Caller, of Caller & Martinez, LLC, of Kansas City, for appellant. Ryan W. Walkiewicz, assistant district attorney, and Jerome A. Gorman, district attorney, for appellee.
Before LEBEN, P.J., McANANY and POWELL, JJ.
MEMORANDUM OPINION
LEBEN, J.
R.M., a juvenile, pled guilty to aggravated criminal sodomy. When the offense occurred, the Kansas Offender Registration Act provided that juveniles adjudicated of aggravated criminal sodomy must register as offenders either until age 18 or 5 years from the date of adjudication, whichever was later. In 2011, before R.M. was adjudicated and sentenced, the legislature amended the statute to require that juveniles convicted of aggravated criminal sodomy register for life. The district court applied the new amendment to R.M.'s case at sentencing, subjecting him to lifetime registration.
R.M. has appealed, contending that the legislature didn't intend that the new requirement be applied to offenses occurring before the legislative change. But the amended statute, K.S.A.2012 Supp. 22–4906(h) applies to a juvenile “who is adjudicated as a juvenile offender” for a qualifying act, and R.M. was adjudicated after the statutory change. (Emphasis added.) We conclude that the legislature intended that the amendment apply to R.M.
R.M. separately argues that applying the lifetime-registration requirement to him would violate the Ex Post Facto Clause of the United States Constitution. Contrary to R.M.'s assertions, the 2011 amendment can be applied retroactively to his case. The legislature intended for the 2011 amendment to apply retroactively to juveniles, and the lifetime-registration requirement does not prejudicially affect juveniles' substantial rights. In addition, the amendment can be applied retroactively without violating the Ex Post Facto Clause of the United States Constitution. But the United States Supreme Court has held that applying offender-registration requirements to past offenses doesn't violate the Ex Post Facto Clause, Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), and we find no violation here. We therefore affirm the district court's judgment.
Factual and Procedural Background
R.M., a juvenile, pled guilty to aggravated criminal sodomy, a severity level 1 person felony, in violation of K.S.A.2010 Supp. 21–3506(a)(1). The offense occurred on March 17, 2011. At that time, the registration act required a juvenile adjudicated of aggravated criminal sodomy to register as an offender either until he or she reached age 18 or for 5 years from adjudication, whichever date occurred later. K.S.A.2010 Supp. 22–4906(h)(1), (2)(a). The legislature amended the registration act in 2011, prior to R.M.'s sentencing, requiring that juveniles age 14 or older adjudicated of certain offenses register for life. See K.S.A.2012 Supp. 22–4906(b); L.2011, ch. 95, sec. 6(h). At R.M.'s sentencing on September 21, 2012, the district court applied the 2011 amendment and required R.M. to register as a sex offender for life.
R.M. has appealed, arguing that the 2011 amendment should not apply to him and that its retroactive application, or application to offenses committed before the amendment, violates the Ex Post Facto Clause. The issues before us are ones of statutory interpretation, and we must review them independently, without any required deference to the district court. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
Analysis
I. The Legislature Intended That the 2011 Amendment to the Registration Act Would Apply to All Juveniles Adjudicated After the Amendment's Effective Date.
We start any statutory-interpretation task with the words of the statute—here, at two points in time. In 2010, K.S.A.2010 Supp. 22–4906(h)(1) and (2)(a) required “a person who is adjudicated as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime” to register either “until such person reaches 18 years of age, [or] at the expiration of five years from the date of adjudication ..., whichever date occurs later.” The legislature amended the law in 2011, requiring a juvenile age 14 and over “who is adjudicated” of certain sexually violent crimes to register “for such offender's lifetime.” K.S.A.2012 Supp. 22–4906(h); L.2011, ch. 95, sec. 6(h).
R.M. argues that the district court should not have required him to register for life under the 2011 amendment because his offense occurred before the amendment. According to R.M., the legislature did not intend for the 2011 amendment to apply retroactively because the legislature did not include a specific retroactivity provision in the amendment, as it had in prior versions of the registration act. For example, R.M. cites a 2010 amendment, which said that the “provisions of paragraph (2)(A)(ii) shall apply to adjudications on and after July 1, 2007, and retroactively to adjudications prior to July 1, 2007.” (Emphasis added.) K.S.A.2010 Supp. 22–4906(h)(4); L.2010, ch. 66, sec. 1(h)(4). R.M. contends that because the legislature explicitly used the term “retroactively” in 2010, it would have done so again in 2011 if it had intended for the 2011 amendment to apply to offenses committed before the amendment's effective date.
But as the State notes, our court faced a nearly identical issue in State v. Davis, No. 104,075, 2011 WL 6413623 (Kan.App.2011) (unpublished opinion), rev. denied, 294 Kan. –––– (May 21, 2012), and the Davis decision suggests a result contrary to the one R.M. urges here. In Davis, which involved an adult defendant rather than a juvenile offender, our court found that similar statutory language expressly tied registration to the adult offender's date of conviction, not the date of his the offense:
“Under K.S.A.2010 Supp. 22–4904(a), any ‘offender’ who is discharged from confinement is required to register with the local sheriff where he or she resides. The term ‘offender’ is defined to include a ‘sex offender,’ K.S.A.2010 Supp. 22–4902(a), and ‘sex offender’ is defined to include ‘any person who ... [after the effective date of the act], is convicted of any sexually violent crime....’ (Emphasis added.) Under the statute, then, the registration requirement itself is triggered by a person being convicted after the effective date of the registration act. The statute's language negates [the defendant's] argument that registration requirements are set in stone by the law in place on the date of the offense.” Davis, 2011 WL 6413623, at *1.
Because the offenders subject to registration were defined as those convicted as offenders, the Davis court held that the date of conviction, not the date of the offense, determined the registration requirements.
The same reasoning applies to the juvenile portions of the registration act at issue here. A juvenile is only classified as a sex offender who must register upon being “ adjudicated as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime.” (Emphasis added.) K.S.A.2011 Supp. 22–4902(b)(2), (c). As explained in Davis, the legislature's language indicates that the registration act only applies to a juvenile upon his or her adjudication. As a result, the law at adjudication triggers registration under the KORA.
In response, R.M. argues that the legislature did not intend for the word “adjudicated” to trigger registration. He claims that in several other instances the legislature has used the word “adjudication” or “conviction” in a statute solely to define the class to which the law applies. But the cases R.M. cites generally involved the punishment for a crime, not a registration requirement intended to promote public safety. E.g., State v. Reese, 48 Kan.App.2d 87, 90, 283 P.3d 233 (2012) (involving statutory amendment that determined the severity of a DUI offense), petition for rev. filed September 4, 2012; State v. Edwards, 28 Kan.App.2d 379, 380–81, 15 P.3d 855 (2000) (involving a statutory amendment that determined the severity of a driving-while-suspended offense); State v. Henning, 3 Kan.App.2d 607, 609, 599 P.2d 318 (1979) (involving a statutory amendment about whether a sentence could be served concurrently with another sentence). Those cases simply applied the fundamental sentencing rule that a person convicted of a crime is sentenced to the punishment in effect at the time the crime was committed. E.g., Reese 48 Kan.App.2d at 89 (citing State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 [2010] ).
But the registration act is not like the statutes at issue in those cases. As the Kansas Supreme Court determined in State v. Myers, 260 Kan. 669, 695–96, 923 P.2d 1024 (1996), cert. denied521 U.S. 1118 (1997), the registration provisions are remedial and intended to protect public safety, not as punishment. The offender-registration requirements are not part of the criminal sentence itself, though the district court is required to notify the offender of these registration requirements at the time of conviction or adjudication. K.S.A.2012 Supp. 22–4904(a)(1)(A).
R.M. also notes another general rule under which a statute generally applies only to future events unless (1) its language clearly indicates a legislative intent to apply it retroactively or (2) the statutory change is procedural or remedial in nature and doesn't prejudicially affect a party's substantive rights. Williams, 291 Kan. at 557. Our court also noted this general rule in Davis, concluding that it did not apply: “[A]s we've already noted, the statute ties the registration requirement directly to the act of being convicted, not the commission of the crime. Thus, the statute itself suggests retroactive application.” Davis, 2011 WL 6413623, at *2. Here too, the statute ties the registration requirement directly to the act of being adjudicated, not the commission of the offense. By the statutory language itself, the lifetime-registration requirement applies to R.M.
II. The Public Notification Provisions of the Registration Act Do Not Violate the Ex Post Facto Clause.
R.M.'s final argument is that the provisions of the registration act that make his personal information available to the public violate the Ex Post Facto Clause of the United States Constitution. See K.S.A.2012 Supp. 22–4909. R.M. relies on Myers, in which the Kansas Supreme Court held that the registration act's public-notification provisions violated the Ex Post Facto Clause. 260 Kan. at 698–700.
But as R.M. recognizes, there is a later United States Supreme Court case that held that similar registration requirements in another state, Alaska, did not violate the Ex Post Facto Clause. See Smith, 538 U.S. 84. Our court has twice determined that the United States Supreme Court's Smith decision effectively overruled Myers with regard to the ex post facto issue. See State v. Buser, No. 105,982, 2013 WL 1149655, at *7–8 (Kan.App.2013) (unpublished opinion), rev. granted October 1, 2013; In re E.L.W., No. 106,241, 2012 WL 686861, at *4 (Kan.App.2012) (unpublished opinion), rev. denied. 297 Kan. –––– (May 20, 2013).
R.M. insists that Myers is controlling authority in Kansas, notwithstanding the Smith decision. But we are duty bound to follow the decisions of both the Kansas Supreme Court and the United States Supreme Court, and we agree with our earlier decisions that the 2003 decision in Smith effectively overruled the 1996 decision in Myers on this issue. At this point, we must follow Smith. See Buser, 2013 WL 1149655, at *8.
The district court's judgment is affirmed.