IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 108,103
STATE OF KANSAS,
Appellee,
v.
PHOEBE E. SHAYLOR,
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Review of the judgment of the Court of Appeals in an unpublished opinion filed December 13,
2013. Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed August 18, 2017.
Judgment of the Court of Appeals affirming the district court is affirmed on the issues subject to review.
Judgment of the district court is affirmed on the issues subject to review.
Christina M. Kerls, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.
Thomas R. Stanton, deputy district attorney, argued the cause, and Keith E. Schroeder, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
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The opinion of the court was delivered by
BILES, J.: Phoebe Shaylor appeals from her conviction for failure to register as a
drug offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et
seq. At the time of her conviction for manufacture of methamphetamine in 2002, KORA
did not impose a requirement on drug offenders. See K.S.A. 2002 Supp. 22-4902
(defining "offender" within the meaning of KORA). But in 2007, the legislature amended
the definition of "offender" for registration purposes to include any person convicted of
unlawful manufacture of any controlled substance or controlled substance analog "unless
the court makes a finding on the record that the manufacturing or attempting to
manufacture such controlled substance was for such person's personal use." K.S.A. 22-
4902(a)(11)(A).
Shaylor argues her failure to register conviction—based on the retroactive
application of KORA's 2007 amendments—violates the Ex Post Facto Clause of the
United States Constitution. She also argues the registration requirement violates Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because the fact
as to whether she possessed methamphetamine precursors for personal use was not
submitted to a jury. Finally, she asserts the use of her criminal history in the calculation
of her sentence without being submitted to a jury also violates Apprendi.
The persuasiveness of Shaylor's ex post facto and personal-use-finding Apprendi
claims turn on whether KORA's requirements constitute punishment for Shaylor's
underlying drug crime. We have rejected similar claims and do so again in this case. See
State v. Meredith, 306 Kan. __, __ P.3d __ (No. 110,520, filed August 4, 2017), slip op.
at 10; State v. Huey, 306 Kan. __, __ P.3d __ (No. 109,690, filed August 11, 2017), slip
op. at *8. We reject Shaylor's criminal-history Apprendi claim as we have repeatedly
done in many other cases. See, e.g., State v. Johnson, 304 Kan. 924, 956, 376 P.3d 70
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(2016); State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 (2002). We will not address that
issue further in this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to trial, Shaylor moved to dismiss the case for "Violation of Ex Post Facto
Clause." Shaylor alleged she was convicted of unlawful manufacture of
methamphetamine, an offense for which no KORA registration requirement existed at the
time of her conviction and sentencing. She argued several new obligations imposed upon
her under KORA were akin to additional punishments instituted after the commission of
her offense and the sentencing. Her KORA duties were: (1) informing state or local
authorities of changes in domicile, commencing employment in a county other than
where she resided, commencing a school term; (2) in-person reporting four times each
year to verify her registration information was still correct; and (3) paying a $20
registration fee each time she reports. The district court denied the motion after a hearing
at which Shaylor reiterated the arguments set out in the motion but offered no evidence.
Shaylor submitted to a bench trial on stipulated facts on the failure to register
charge. The parties stipulated Shaylor "is required to register as a drug offender based on
her [prior] conviction for manufacture of methamphetamine in Reno County District
Court case number 02 CR 1083," but she failed to do so in February 2010, despite notice
by mail from the registering agency of her duty to do so. Based on these facts, the court
found Shaylor guilty of failure to register. It granted Shaylor's motion for a downward
dispositional departure and sentenced her to 36 months' probation, with an underlying 53-
month prison term.
Shaylor timely appealed. She raised, among other claims no longer relevant, the ex
post facto issue. She also argued for the first time on appeal that Apprendi required the
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fact of whether she possessed precursors for personal use to be submitted to a jury and
that Apprendi required the fact of her criminal history to be submitted to a jury.
A Court of Appeals panel rejected Shaylor's claims. State v. Shaylor, No. 108,103,
2013 WL 6726265 (Kan. App. 2013) (unpublished opinion). As to the ex post facto
argument, the panel reasoned that "neither the United States Supreme Court nor our
Supreme Court considers offender registration requirements to be punishment." 2013 WL
6726265, at *3 (citing Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164
[2003]; State v. Myers, 260 Kan. 669, 923 P.2d 1024 [1996], cert. denied 521 U.S. 1118
[1997]). The panel further held the lack of a jury finding on the personal use exception
did not violate Apprendi "because offender registration under KORA does not constitute
a sentence enhancement within the meaning of Apprendi," since it does not "'implicate
Apprendi's essential focus—prohibiting a sentencing judge from imposing "a more severe
sentence than the maximum sentence authorized by the facts found by the jury." [Citation
omitted.]'" 2013 WL 6726265, at *8 (citing State v. Chambers, 36 Kan. App. 2d 228,
238-39, 138 P.3d 405 [2006]). Finally, the panel rejected Shaylor's criminal-history-
based Apprendi claim citing Ivory, 273 Kan. at 46-48. 2013 WL 6726265, at *9.
Shaylor petitioned for review of the panel's decisions on her ex post facto and
Apprendi claims, which we granted. 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).
MEREDITH CONTROLS THE OUTCOME
This court recently rejected a nearly identical ex post facto claim in Meredith. 306
Kan. at __, slip op. at 10. In Meredith, we held that the legislature's intent in enacting
KORA was to create a nonpunitive civil regulatory scheme. We further held that, to
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overcome that intent, only the "clearest proof" concerning the effects of KORA on the
class of drug or violent offenders would suffice. 306 Kan. at __, slip op. at 8-9. Shaylor
made no such showing and mentioned, without further factual development, only three
statutory factors: (1) informing authorities of changes in domicile; (2) in-person
reporting four times each year to verify her registration information; and (3) paying a $20
registration fee each time she reports. But we previously considered each of these
arguments and held that lifetime registration requirements imposed on sex offenders do
not constitute punishment. See State v. Petersen-Beard, 304 Kan. 192, 201-02, 205, 377
P.3d 1127, cert. denied 137 S. Ct. 226 (2016). But see 304 Kan. at 218 (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). We hold Shaylor failed to make the required showing, so we
have no basis upon which to override the legislative intent previously determined in our
caselaw.
Because it is necessary for Shaylor to establish KORA's requirements constitute
punishment to prevail on both her ex post facto and personal-use-finding Apprendi
claims, her inability to do so for the ex post facto claim is also fatal to her personal-use-
finding Apprendi claim. Relying on Meredith, we applied in Huey the same principles in
rejecting the defendant's argument that a factual finding required to trigger KORA
requirements with respect to a conviction must comport with Apprendi. 306 Kan. at __,
slip op. at 7-8.
Without a factual record, we cannot conclude that KORA's registration
requirements as to drug offenders are so punitive as to override the legislature's intent
that KORA be a civil remedy. Therefore, Shaylor has not demonstrated, as she must, that
the registration requirements constitute punishment. And because the registration
requirements did not increase Shaylor's punishment under the law of this case, the
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retroactive application of KORA registration to her drug conviction does not violate the
Ex Post Facto Clause, and it was not necessary that the personal-use finding be made by a
jury.
We affirm the lower courts' judgment on the issues subject to our review.
***
BEIER, J., dissenting: Consistent with my votes in State v. Meredith, 306 Kan.
___, ___ P.3d ___ (No. 110,520, filed August 4, 2017); and State v. Huey, 306 Kan. __,
__ P.3d __ (No. 109,690 filed August 11, 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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