Opinion
No. 107,512.
2013-05-24
STATE of Kansas, Appellee, v. Bryan Eugene BROWN, Appellant.
Appeal from Shawnee District Court; Richard D. Anderson, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Jodi Litfm, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Richard D. Anderson, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Jodi Litfm, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
ATCHESON, J.
Defendant Bryan Eugene Brown appeals from a 57–month prison sentence he received in Shawnee County District Court for failing to register as a convicted drug offender. Brown contends that because he was not required to register at the time of his drug offense, the State is unconstitutionally punishing him by relying on later changes expanding the registration scheme. Given the legal latticework the Kansas Supreme Court has built around the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , Brown's argument fails, notwithstanding the anomalous result that he will spend nearly twice as long in prison for failing to register as he did on the original drug conviction.[1]
[1]When enacted, KORA applied only to defendants convicted of specified sex crimes and was known as the Kansas Sex Offender Registration Act. The Act was later broadened to require defendants convicted of various violent, though not sexually related, offenses to register. The Act's title was modified to reflect that expanded scope by eliminating the word “sex.” In this opinion, we refer generally to KORA as encompassing the original Act unless otherwise indicated.
The facts may be briefly stated. In 2004, Brown was charged in Jefferson County District Court with possession of cocaine with the intent to sell, a felony. He entered a plea in January 2006, and, for reasons that are neither relevant nor particularly obvious, he was not sentenced until March 2007. Brown received a standard guidelines sentence of 30 months in prison and 24 months' postrelease supervision.
The Kansas Legislature amended KORA, as of July 1, 2007, to require persons who had been convicted of various drug offenses, including possession of cocaine with intent to sell, to register under the Act. So the changes to KORA required Brown to register and otherwise comply with the Act.
The Shawnee County district attorney, in separate cases, charged Brown with failing to register under KORA in 2010 and 2011. The cases were consolidated for disposition. Brown pled no contest to one count of failing to register and one count of attempted failure to register. The district court imposed a mid-level guidelines sentence of 57 months' imprisonment for failing to register and a concurrent 12–month sentence on the attempt. Brown has appealed, challenging the constitutionality of applying KORA to persons, such as himself, who were not required to register at the time of their underlying criminal offenses. See State v. Huerta, 291 Kan. 831, 839–40, 247 P.3d 1043 (2011) (constitutional challenge to sentencing regimen rather than to individual sentence may be raised on direct appeal).[2]
[2]On appeal, the parties are untroubled by the peculiar legal fiction of an attempted failure to register under KORA as a crime. See K.S.A. 21–3301(a) (defining attempts). Facially, at least, an attempted failure to perform an affirmative act seems indistinguishable from a failure itself—unless the attempt amounts to completion of the act, in which case there would be no failure and, hence, only an attempted failure. Rather than contemplate those implications further, we follow the parties' lead and decline to look for trouble.
Brown contends that applying KORA as amended in mid–2007 to persons who had already been convicted of drug crimes amounts to unconstitutional punishment violating the Ex Post Facto Clause of the United States Constitution. U.S. Const. Art. 1, § 10. A statute violates ex post facto protections if it retroactively either criminalizes conduct that had not been proscribed or increases the punishment for conduct already treated as criminal. Carmell v. Texas, 529 U.S. 513, 540, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000); State v. Myers, 260 Kan. 669, Syl. ¶ 5, 923 P.3d 1024 (1996), cert. denied521 U.S. 1118 (1997). Brown argues that imposing the registration requirements of KORA on him increases the punishment for his drug conviction. The issue calls for constitutional and statutory interpretation in light of fixed and undisputed facts. As such, the question is one of law over which appellate courts exercise unlimited review. See State v. Turner, 293 Kan. 1085, 1086, 272 P.3d 19 (2012); State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
The argument depends upon the proposition that registration under KORA is punishment. Kansas Supreme Court precedent rejects that characterization of the Act's registration requirements. See State v. Hemby, 264 Kan. 542, 555–56, 957 P.2d 428 (1998) (endorsing holding in Myers, 260 Kan. at 695–96, that rejects ex post facto challenge to registration requirements because they are not punitive); Myers, 260 Kan. at 695–96 (registration requirements of KORA do not constitute punishment and, therefore, are not subject to ex post facto limitations); see also State v. Scott, 265 Kan. 1, Syl. ¶ 4, 961 P.2d 667 (1998) (KORA registration not punishment and, therefore, attack on Act as unconstitutionally cruel and unusual punishment fails); Smith v. Doe, 538 U.S. 84, 105–06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (upholding Alaska's statutory registration scheme for sex offenders, which has components similar to KORA, against ex post facto challenge).
The Myers decision essentially controls. After offering a detailed analysis of state and federal offender registration laws and of the legislative purpose behind KSORA, the Myers court concluded the duty to register served a sound public safety interest, was enacted to further that public interest, and did not impose obligations so onerous as to be punitive in their effect. 260 Kan. at 681, 695–96. The requirements, therefore, simply were not a form of punishment triggering ex post facto protections. In arriving at that conclusion, the court considered only the impact of the registration obligations themselves. The court did not mention, let alone weigh, the punishment imposed under KSORA for a failure to register. The obvious implication must be that the punishment for failing to register is not a factor to be considered in the ex post facto determination. [2]
[2]The Myers decision looked in detail at the public disclosure of registrant information separately from the duty to register and found that aspect of KORA to be punitive and an ex post facto violation. Myers, 260 Kan. at 700–02. That aspect of Myers has been called into question by Smith, 538 U.S. at 105–06, holding that Alaska's sex offender registration and public disclosure scheme, similar to KORA, did not violate the Ex Post Facto Clause. Here, Brown does not specifically rely on or argue the public disclosure aspects of KORA as a constitutional defect that would prevent the registration requirements of the Act from applying to him.
To bolster his position, Brown surveys the history of KORA. The Act was adopted in 1993 and originally applied only to persons convicted of specified sex crimes. The legislature later expanded mandatory registration to various violent crimes and, in 2007, to drug crimes involving the manufacture of or the intent to distribute proscribed controlled substances.
As the legislature expanded the scope of convictions requiring registration, it also made those requirements more onerous. Both in its original form and in 2007, the Act required registration for 10 years following conviction, exclusive of any time the offender served in prison. The legislature has since extended the registration period to 15 years for drug offenses, and KORA now requires lifetime registration upon a second conviction for a covered drug offense. The Act imposes lifetime registration for first convictions of particular sex offenses. Originally, KORA required a convicted offender to register with the sheriff in the county where he or she resided and to report any address changes. As of 2010, the offender had to register with the sheriff in the counties where he or she resides, holds gainful employment, and attends school. The offender had to promptly report new places of residence, work, or education. And the offender had to report in person to the sheriff's department in his or her county of residence three times a year to verify the accuracy of the information already provided. The offender had to pay a $20 fee to the sheriff's department each time. Now an offender must report four times a year, although a sheriff's department may permit one report to be made by certified mail.
Brown's argument that the heightened reporting obligations create an ex post facto violation has been foreclosed in the caselaw. The changes Brown points out between KORA, as it was upheld in Myers and Hemby, and the version applied to him are significant. But ultimately they are matters of degree rather than differences of kind. So absent some indication the Kansas Supreme Court has begun a retreat from those decisions—and we are aware of none—they remain controlling authority. Likewise, many of the registration features Brown attacks were included in the Alaska sex offender registration act the United States Supreme Court upheld in Smith, further undercutting his argument. See 538 U.S. at 90–91.
Brown also points to the criminal penalties imposed on him for failing to register in conformity with KORA as supporting his ex post facto challenge. Those penalties have been ratcheted up over the years. Under the original Act, a failure to comply was a misdemeanor punishable by up to a year in jail. In 1999, the legislature upped the penalty to a severity level 10 nonperson felony. Under the version of KORA amended in 2006 and in effect when Brown failed to register, the penalty had been increased to a severity level 5 person felony, with each 30–day period of noncompliance treated as a separate violation. Now, the penalties range from a severity level 6 person felony for a first conviction to a severity level 3 person felony for a third conviction or a continuing failure to register exceeding 180 days. But as we have said, the Kansas Supreme Court, in Myers, tacitly rejected an ex post facto argument based on the punishment imposed for failing to register as opposed to the purpose and character of the registration requirements themselves. The United States Supreme Court explicitly rejected that argument in Smith, 538 U.S. at 102. Noting that a sex offender who fails to register under the Alaska act faces criminal prosecution, the Court found that punishment to be independent of the offense triggering registration and, therefore, irrelevant to the ex post facto analysis. 538 U.S. at 102.
Brown makes no argument that the KORA registration requirements have a punitive impact on drug offenders as a class—and, thus, on him—because those offenders have demonstrably different characteristics or their crimes differ materially from convicted sex offenders as a class. In Scott, the court noted the legislative purpose in first adopting KORA rested on the substantial danger of recidivism among convicted sex offenders and the often devastating impact those crimes have on victims. 265 Kan. at 9–10. Those penological concerns about sex offenders continue to drive legal conclusions about how they can and should be treated in the criminal justice system. See State v. Mossman, 294 Kan. 901, 909–10, 281 P.3d 153 (2012); cf. Smith, 538 U.S. at 93 (Alaska registration act expressly cites sex offenders' “ ‘high risk of reoffending’ “ as a justification and cites preservation of public safety as a purpose); 538 U.S. at 103 (Court mentions studies showing sex offenders to be far more likely to reoffend than other convicted criminals). Nobody in this case has attempted to reconstruct the legislative intent or purpose in expanding KORA to drug offenders.
We have not presumed some material differences between persons convicted of drug trafficking crimes, on the one hand, and sex offenses, on the other, in arriving at our legal conclusions. If there were such differences, the substantial criminal penalties now imposed for failing to register—here Brown will have served far longer in prison for failing to register than for the drug offense triggering the duty to register—might suggest disproportionality. Cf. Smith, 538 U.S. at 102 (Noting that only an ex post facto challenge had been made to Alaska's sex offender reporting statutes, the Court expressly reserved comment on “other [possible] constitutional objections” to that scheme.).
Brown separately argues that his pleas on the charges in this case were factually defective because he was not subject to KORA registration. The argument simply repackages the ex post facto challenge and fails for the same reason.
Finally, Brown contends the district court improperly considered his criminal history in imposing sentence. He argues that the district court's use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by a jury. He relies on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support that proposition. Brown also acknowledges the Kansas Supreme Court has rejected that argument and has found the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution with respect to the use of a defendant's past convictions in determining a presumptive statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We, therefore, decline his invitation to rule otherwise, especially in light of the Supreme Court's recent reaffirmation of Ivory. State v. Peppers, 294 Kan. 377, 379, 276 P.3d 148 (2012).
Affirmed.