Opinion
111,226
05-08-2015
STATE of Kansas, Appellee, v. Barbara Annemarie HILL, Appellant.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal of an order directing an offender to register as a drug offender. After her conviction for possession of pseudoephedrine, Barbara A. Hill contends the district court erroneously ordered her to register as an offender. She claims there is a personal use exemption under the registration statute in effect at the time she committed her crime that would exempt her from having to register if the court had made the appropriate factual findings. We hold the district court correctly ruled that the registration law in effect at the time of her sentencing applies and the court properly ordered her to register. Accordingly, we affirm.
Hill did not contest these charges.
In 2012, Hill entered an Alford plea to one count of possession of pseudoephedrine with intent to manufacture and one count of possession of methamphetamine. The offenses occurred on May 2, 2010. When Hill committed the crimes, the Kansas Offender Registration Act, K.S.A.2012 Supp. 22–4901, et seq. , applied. It was presumed one would have to register as a drug offender; however, there was a personal use exemption. The personal use exemption was eliminated from the Act in 2011.
Hill moved the court to make factual findings that she had “possessed ephedrine/pseudoephedrine with the intent to manufacture methamphetamine for personal use.” She argued the 2009 statute governed, and the district court had to first determine if she was required to register under the 2009 statute before considering the 2012 amendments.
The State argued that amendments to the Act applied retroactively, and because the 2012 version did not require a personal use finding, Hill was required to register. The State also conceded that if the 2009 amendments applied, then Hill would not have to register because the possession was for personal use and she would not have been classified as an offender.
When sentencing Hill, the district court applied K.S.A.2012 Supp. 22–4902(f)(2), which was the statute in effect at the time of sentencing. The district court did not make any factual finding regarding Hill's statutory “personal use” exemption. The district court held it was not required to make this factual finding under the current version of the Act.
In this appeal, Hill argues the retroactive application of 2012 amendments to the Act violates the Ex Post Facto Clause of the United States Constitution. The State contends the registration act does not impose punishment and any amendments can be applied retroactively without violating the Ex Post Facto Clause.
The rules that guide us.
Interpretation and application of a statute is a question of law over which appellate courts have unlimited review. State v. Schuster, 273 Kan. 989, 991, 46 P.3d 1140 (2002).
The two statutes in dispute are K.S.A.2009 Supp. 22–4902 and K.S .A.2012 Supp. 22–4902. K.S.A.2009 Supp. 22–4902, in pertinent part, provides:
“(a) ‘Offender’ means: ... (11) Any person who has been convicted of: ... (B) possession of ephedrine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phenylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product to manufacture a controlled substance as defined by K.S.A. 65–7006, prior to its repeal or K.S.A.2009 Supp. 21–36a09 or 21–36a10, and amendments thereto, unless the court makes a finding on the record that the possession of such product was intended to be used to manufacture a controlled substance for such person's personal use. ” (Emphasis added.)
When the legislature amended the Act in 2011, the personal use language was removed from K.S.A. 22–4902. When Hill was sentenced in December 2012, the applicable amended statute was K.S.A.2012 Supp. 22–4902(f)(2).
We follow the reasoning in a prior case.
In State v. Simmons, 50 Kan.App.2d 448, 329 P.3d 523 (2014), petition for rev. filed July 25, 2014, a panel of this court stated: “[T]he legislature intended the KORA registration requirements to be imposed automatically by operation of law without court involvement and to represent nonpunitive collateral consequences of judgment that are distinct from, and not a part of, a criminal sentence.” 50 Kan.App.2d at 463. The district court found Simmons guilty for failing to register after she had registered on at least 11 prior occasions. Simmons argued it was an illegal sentence because she was not required to register as a drug offender when she was convicted for her crimes. Because the panel determined that registration was not a part of the defendant's sentence, there was no merit to Simmons' illegal sentence claim. 50 Kan.App.2d at 463.
We agree with the Simmons court. The registration requirement is not a part of Hill's sentence. We now turn to her Ex Post Facto Clause argument.
Both the United States Supreme Court and the Kansas Supreme Court have held that the duty to register is a civil penalty, not punitive, and retroactive application does not violate the Ex Post Facto Clause of the United States Constitution. See Smith v. Doe, 538 U.S. 84, 105–06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) ; State v. Myers, 260 Kan. 669, 671, 681, 695–96, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997).
We are duty bound to follow the Kansas Supreme Court precedent, unless there is some indication the Supreme Court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Since there is no indication our Supreme Court is departing from the Myers decision, we must follow this controlling precedent.
Affirmed.