                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                                No. 109,671

                                           STATE OF KANSAS,
                                               Appellee,

                                                      v.

                                        JOSEPH V. DONALDSON,
                                              Appellant.

                                    SYLLABUS BY THE COURT

         Non-sex offenders seeking to avoid retroactive application of provisions of the
Kansas Offender Registration Act (KORA) must, in order to satisfy the "effects" prong of
the test set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9
L. Ed. 2d 644 (1963), produce a record that distinguishes—by the "clearest proof"—
KORA's effect on those classes of offenders from the Act's effects on sex offenders as a
class.


         Review of the judgment of the Court of Appeals in an unpublished opinion filed August 15, 2014.
Appeal from Sedgwick District Court; CLARK V. OWENS II, judge. Opinion filed August 11, 2017.
Judgment of the Court of Appeals, affirming in part and dismissing in part the judgment of the district
court, is affirmed. Judgment of the district court is affirmed.


         Heather Cessna, of Kansas Appellate Defender Office, was on the briefs for appellant.


         Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.




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The opinion of the court was delivered by


       STEGALL, J.: The State charged Joseph V. Donaldson with one count each of
aggravated kidnapping, aggravated battery, and criminal threat. The events leading to
these charges occurred in June 2011. A jury later convicted him as charged, and after
finding that Donaldson had a criminal history score of A, the court sentenced him to a
total controlling 592-month prison sentence. By virtue of his aggravated kidnapping
conviction, the court imposed lifetime registration pursuant to the Kansas Offender
Registration Act (KORA), K.S.A. 22-4901 et seq.


       Donaldson appealed, alleging several errors, including that his lifetime offender
registration violates the Ex Post Facto Clause. At the time he committed the crimes,
Donaldson would have been subject to registration only if the victim of the aggravated
kidnapping charge was under the age of 18. See K.S.A. 2010 Supp. 22-4902(a)(4)(B);
K.S.A. 2010 Supp. 22-4906(a). After the State charged Donaldson but prior to trial, our
legislature amended KORA in such a way that Donaldson is currently subject to lifetime
registration. See L. 2011, ch. 95, sec. 6; K.S.A. 2011 Supp. 22-4906(d)(10) (providing for
lifetime registration for any offender who has been convicted of aggravated kidnapping).
According to Donaldson, because the State did not present any evidence that the victim
was under the age of 18 and because the pre-2011 version of KORA applied, he should
not be subject to registration.


       The Court of Appeals rejected Donaldson's claim, holding that registration is not
punishment, so the 2011 amendments could be applied retroactively to him. State v.
Donaldson, No. 109,671, 2014 WL 4080074, at *11-12 (Kan. App. 2014) (unpublished
opinion). The panel further affirmed his conviction and sentence, and we granted review
solely to address his ex post facto claim.

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       We recently analyzed KORA in this context using the intent-effects test set forth
by the United States Supreme Court and concluded lifetime sex offender registration does
not constitute "punishment" for purposes of applying any provision of the federal
Constitution. State v. Petersen-Beard, 304 Kan. 192, 198-209, 377 P.3d 1127 (2016)
(relying on the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69,
83 S. Ct. 554, 9 L. Ed. 2d 644 [1963]). We therefore held that the 2011 version of KORA
could not violate federal prohibitions against cruel and unusual punishment. See 304 Kan.
at 208. And not long ago, we "explicitly extend[ed] the holding of Petersen-Beard to
apply to ex post facto challenges." State v. Reed, 306 Kan. ___, ___ P.3d ___ (No.
110,277, filed August 4, 2017), slip op at 8.


       Therefore, to prevail, Donaldson must demonstrate that violent offenders as a class
are sufficiently distinguishable from the class of sex offenders such that the effects of the
law become punitive rather than civil when applied to violent offenders. We recently
confronted a nearly identical question in State v. Meredith, 306 Kan. ___, ___ P.3d ___
(No. 110,520, filed August 4, 2017). In that case, we declined to hold that KORA
registration is punishment where "the record . . . is insufficiently developed for [the
defendant] to persuasively argue KORA's allegedly punitive effects on drug offenders as
a class separate and distinct from sex offenders." Meredith, 306 Kan. at ___, slip op. at 6;
see Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) ("Because
we 'ordinarily defer to the legislature's stated intent,' [citation omitted] '"only the clearest
proof" will suffice to override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty,' [citations omitted]."); see also State
v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996) (holding that the legislature's intent in
enacting KORA was to create a nonpunitive civil regulatory scheme); Doe v. Thompson,
304 Kan. 291, 373 P.3d 750 (2016) (upholding Myers' determination that the legislature
intended to enact a nonpunitive scheme), overruled on other grounds by Petersen-Beard,

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304 Kan. 192. We further explained in Meredith that such an inquiry "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." Meredith, 306
Kan. at ____, slip op. at 10.


       Donaldson's claim suffers from the same flaw. He is unable to satisfy the "clearest
proof" standard because the record below has not been sufficiently developed. As a
result, we cannot—at this time—hold that KORA's registration requirements as applied
to violent offenders are punishment and subject to the limitations of the Ex Post Facto
Clause.


       Affirmed.


                                               ***


       BEIER, J., dissenting: Consistent with my votes in State v. Petersen-Beard, 304
Kan. 192, 377 P.3d 1127 (2016); State v. Reed, 306 Kan. ___, ___ P.3d ___ (No.
110,277, filed August 4, 2017); and State v. Meredith, 306 Kan. ___, ___ P.3d ___ (No.
110,520, filed August 4, 2017), I respectfully dissent from the majority's decision in this
case. "Kansas' requirement of offender registration—especially in its modern, maximally
invasive, maximally pervasive, and infinitely more public incarnation—is punishment,
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." Meredith, 306 Kan. at ___,
slip op. at 11-12 (Beier, J., dissenting).


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