                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                               No. 109,690

                                           STATE OF KANSAS,
                                               Appellee,

                                                      v.

                                          DARNELL LEE HUEY,
                                              Appellant.


                                    SYLLABUS BY THE COURT

1.
        The legislature intended the Kansas Offender Registration Act (KORA) to be civil
and nonpunitive for all classes of offenders.


2.
        Because the legislature intended KORA to be a regulatory scheme that is civil and
nonpunitive, only the clearest proof will suffice to override legislative intent and
transform what has been denominated a civil remedy into a criminal penalty.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed April 25, 2014.
Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed August 11, 2017.
Judgment of the Court of Appeals affirming in part, vacating in part, and remanding to the district court is
affirmed as to the issues subject to review. Judgment of the district court is affirmed as to the issues
subject to review.


        Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.


        Jodi E. Litfin, deputy district attorney, argued the cause, and Chadwick J. Taylor, district
attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.
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The opinion of the court was delivered by


       BILES, J.: Any fact necessary to increase the punishment for an offense other than
a prior conviction must be established by a guilty plea or proved beyond a reasonable
doubt to a jury. United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 160 L. Ed. 2d
621 (2005); see also Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000). In this case, Darnell Lee Huey pleaded guilty to robbery and
aggravated burglary and was ordered to register as a violent offender under the Kansas
Offender Registration Act (KORA), K.S.A. 22-4901 et seq., after a district court judge
found he used a deadly weapon to commit those offenses. This fact was not established
by Huey's guilty pleas. On appeal, Huey argues the registration requirement violates the
Booker/Apprendi rule because the fact that he used a deadly weapon should have been
found by a jury. The persuasiveness of his challenge turns on whether KORA's
requirements constitute punishment for his crimes.


       This court has previously held that KORA's deadly weapon finding must be
admitted through a guilty plea or submitted to a jury because KORA's requirements
constitute punishment as applied to individuals required to register on the basis of such a
finding. See State v. Charles, 304 Kan. 158, 177, 372 P.3d 1109 (2016). But, as noted in
Charles, its application in subsequent appeals was in doubt because, on the same day it
was decided, this court overruled the caselaw on which it relied, holding in State v.
Petersen-Beard, 304 Kan. 192, 209, 377 P.3d 1127, cert. denied 137 S. Ct. 226 (2016),
that KORA registration for sex offenders was not cruel and unusual punishment under the
Eighth Amendment to the United States Constitution. See Charles, 304 Kan. at 179
(acknowledging Petersen-Beard "may influence whether the KORA holding of this case
is available to be relied upon by violent offenders whose appeals have yet to be
decided").
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       As signaled in the Charles decision, we now hold Charles is not viable authority
for Huey or other violent offenders as to whether KORA is punitive. That issue may be
resolved only upon an evidentiary record supplying the clearest proof to overcome the
legislature's intent that KORA be a regulatory scheme that is civil and nonpunitive. Huey
raised his challenge as to KORA's claimed punitive nature for the first time on appeal and
did not develop an evidentiary record in the district court. And without that, we cannot
conduct the appropriate analysis to determine KORA's alleged punitive effects on violent
offenders such as Huey. Accordingly, we affirm the offender registration order. See State
v. Meredith, 306 Kan. ___, ___ P.3d ___ (No. 110,520, filed August 4, 2017), slip op. at
10.


                       FACTUAL AND PROCEDURAL BACKGROUND

       Huey forced his way into an apartment using what was described as a "'skinny
weapon' that had a pistol grip in the front and rear." He demanded money from the
occupants. When police arrived, Huey was seen fleeing with property belonging to the
resident. He was eventually apprehended—but no weapon was found.


       Huey was charged with aggravated burglary, aggravated robbery, theft, and
criminal possession of a firearm. He agreed to plead guilty to aggravated burglary and to
a reduced charge of robbery. In exchange, the State agreed to dismiss the remaining
counts and filed an amended complaint as part of the agreement. The revised charges to
which Huey pleaded guilty did not allege he used a "deadly weapon" to commit either
offense.


       At the plea hearing, the State explained to the district court that the evidence
would show Huey "entered the residence without permission," "made a demand . . .

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wanting some money," and "by force or threat of force took property belonging to [the
victim], specifically he took a couple of bottles of prescription medication . . . ." The
State asked the court to take judicial notice of the evidence presented at the preliminary
hearing.


       The court accepted the pleas and found Huey guilty, but it did not at that time
inform him of any duty to register under KORA. Similarly, KORA registration was not
mentioned in the written plea agreement. The district court sentenced Huey to concurrent
sentences of 57 months' imprisonment for the robbery conviction and 32 months for the
aggravated burglary conviction. It ordered the sentences to run consecutive to another
sentence imposed in a separate Shawnee County case. As to offender registration, which
is the subject of this appeal, the State argued,


       "I believe this Court did hear the evidence that was presented at the preliminary hearing. I
       believe there is sufficient evidence for the Court to make that finding beyond a
       reasonable doubt that a firearm was used in the commission of the crime and that the
       defendant should be required to register as a violent offender. Those would be the
       recommendations of the State."


       Huey's counsel responded,


               "As to the issue of the firearm, I would note the discovery revealed that one of
       the individuals believed that Mr. Huey had a firearm and he indicated to law enforcement
       at the time he was questioned he did not have a firearm; he had a crowbar. The crowbar
       was found—or a crowbar was found at the scene, apparently. . . . I think it was important
       for the court that he did not have a firearm that was retrieved for purposes of this
       offense."




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       The State admitted "there was maybe some conflicting information in the
discovery" on whether a firearm was used but noted the preliminary hearing witnesses
testified one was used. The court ruled, "I'm going to make the finding that a firearm was
used in the course of this event and order offender registration."


       The KORA checklist in the written journal entry reflects a deadly weapon finding,
and the court imposed a 10-year registration requirement. But the court mistakenly
checked a box applicable to first-time statutory violent offenders, rather than first-time
offenders whose duty to register turned on a deadly weapon finding.


       Huey timely appealed, alleging three sentencing errors. First, he argued the
postrelease supervision term imposed by the district court constituted an illegal sentence.
His second and third claims asserted violations of Apprendi's general prohibition on
sentence-enhancing judicial fact finding: calculating his sentence using his criminal
history score and imposing KORA requirements based on the finding that he used a
deadly weapon to commit the crimes.


       A Court of Appeals panel vacated the postrelease supervision term and remanded
for resentencing on that issue. State v. Huey, No, 109,690, 2014 WL 1707807, at *2
(Kan. App. 2014) (unpublished opinion). This question is no longer in dispute. As to the
two Apprendi arguments, the panel rejected both. We granted Huey's petition for review
on the two Apprendi claims.


       Jurisdiction is proper. K.S.A. 20-3018(b) (petition for review of Court of Appeals'
decision); K.S.A. 60-2101(b) (providing Supreme Court jurisdiction over cases subject to
review under K.S.A. 20-3018).



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                                   CRIMINAL HISTORY USE

         At the outset, we discard Huey's challenge to his criminal history being used in
calculating his sentence because we have repeatedly rejected that claim in many other
cases. See, e.g., State v. Johnson, 304 Kan. 924, 956, 376 P.3d 70 (2016); State v. Ivory,
273 Kan. 44, 45-48, 41 P.3d 781 (2002). Huey acknowledges this but wishes to preserve
the issue for federal appellate review. Huey offers no argument why our precedent should
be overruled. Cf. Johnson, 304 Kan. at 956 (rejecting Ivory claim based on defendant's
failure to advance new argument). We continue to adhere to the Ivory line of cases and
will not address this claim further in this appeal. This leaves only the judicial fact-finding
claim.


                               HUEY IS REQUIRED TO REGISTER

         In the district court, Huey did not raise an Apprendi challenge to the finding that
he used a deadly weapon to commit his offenses. This issue was advanced for the first
time on appeal, and so it is not surprising there is no evidentiary basis supporting the
argument that KORA requirements are punishment as applied to violent offenders.
Instead, Huey contends three generic aspects of the statutory scheme support his claim:
(1) stigma attached to offender registration, i.e., disclosure on the Internet; (2) potential
imprisonment for failure to register; and (3) the $20 registration fee.


         We considered each of these in holding in Petersen-Beard that the lifetime
registration requirements imposed on sex offenders do not constitute punishment. See
Petersen-Beard, 304 Kan. at 201-02, 205 (Internet dissemination and registration fee).
But see 304 Kan. at 192 (Johnson, J., dissenting) (arguing registration requirements with
which compliance enforced by potential for "going to prison for a new felony"
constituted an affirmative disability or restraint on the offender). And while Huey

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attempts to distinguish his case from Petersen-Beard by arguing that "[p]eople who
commit person felonies are not, as a class, comparable to sex offenders," he offers no
new perspectives regarding these or any other features of the registration scheme as they
may pertain to violent offenders.


Standard of Review

       "Whether a defendant's constitutional rights as described under Apprendi were
violated by a district court at sentencing raises a question of law subject to unlimited
review." State v. Dickey, 301 Kan. 1018, 1036, 350 P.3d 1054 (2015); see also Charles,
304 Kan. at 176 (applying de novo review to constitutionality under Apprendi of KORA's
judicial deadly weapon fact-finding requirement).


Discussion

       The legislature intended KORA to be civil and nonpunitive for all classes of
offenders currently subject to its provisions. See Meredith, 306 Kan. ___, slip op. at 8,
see also State v. Myers, 260 Kan. 669, 696, 923 P.2d 1024 (1996) ("We hold that
KSORA's registration requirement does not impose punishment; thus our ex post facto
inquiry as to registration ends."), cert. denied 521 U.S. 1118 (1997). Only the clearest
proof that the scheme is "''so punitive either in purpose or effect as to negate the
[legislature's] intention"'" will suffice to override the legislature's nonpunitive intent and
transform what has been denominated a civil remedy into a criminal penalty. Meredith,
306 Kan. ___, slip op. at 7 (quoting Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155
L. Ed. 2d 164 [2003])]. We hold Huey has failed to make that showing.


       Because Huey raised his Apprendi challenge for the first time on appeal, he
offered no evidence and the district court made no findings. Consequently, Huey offers

                                               7
no fact-based arguments on the factors we must consider in determining whether the
Act's effects render it punitive as applied to violent offenders. See Meredith, 306 Kan.
___, slip op. at 10 ("[A]nalysis of the [Kennedy v.] Mendoza-Martinez[, 372 U.S. 144,
168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963),] factors requires a robust record because
the effects prong of the applicable legal test obliges an appellate court to premise its legal
conclusion on at least some fact-intensive questions—i.e., the legitimacy of the public
safety interests at stake, the effectiveness of the alternative purpose to promote public
safety, etc.").


        Without a record, we cannot conclude the effects of KORA's registration
requirements as to violent offenders are so punitive as to override the legislature's intent
that KORA be a civil remedy. Therefore, Huey has not demonstrated, as he must, that the
registration requirements constitute punishment. Because the registration requirements
did not increase Huey's punishment under the law of this case, it was not necessary that
Huey's use of a deadly weapon be found beyond a reasonable doubt by a jury.


        We affirm the lower courts' judgment on the issues subject to our review.


                                                      ***


        BEIER, J., dissenting: I respectfully dissent from the majority's decision in this
case.


        I would not explicitly or implicitly overrule State v. Charles, 304 Kan. 158, 372
P.3d 1109 (2016). I have previously written:


        "Kansas' requirement of offender registration—especially in its modern, maximally
        invasive, maximally pervasive, and infinitely more public incarnation—is punishment,

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      certainly in effect if not in intent. It is no less so for a drug offender than for a sex
      offender or a violent offender. It is no less so when the Ex Post Facto Clause is before us
      than when Apprendi or the Eighth Amendment is before us." State v. Meredith, 306 Kan.
      ___, ___ P.3d ___ (No. 110,520, filed August 4, 2017), slip op. at 11-12 (Beier, J.
      dissenting).


      As with the defendant in the Meredith case, relied upon by my colleagues in the
majority, Darnell Lee Huey has met any burden of proof he bears on whether the
imposition of the requirement of registration qualifies as punishment. Under Apprendi v.
New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its
progeny, Huey cannot be subjected to that requirement on the basis of a judge-made fact
finding that he used a deadly weapon. I would therefore vacate the requirement.


      ROSEN and JOHNSON, JJ., join the foregoing dissent.




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