State v. Watkins

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,702

STATE OF KANSAS,
Appellee,

v.

JOSHUA HAROLD WATKINS,
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Review of the judgment of the Court of Appeals in an unpublished opinion filed August 22, 2014.
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed September 8, 2017.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Patrick H. Dunn and Adam D. Stolte, of Kansas Appellate Defender Office, were on the briefs for
appellant.

Keith E. Schroeder, 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

BILES, J.: Joshua H. Watkins was convicted of aggravated assault on a law
enforcement officer, felony fleeing and eluding, and driving while suspended. He was
required to register under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq.,
based on the district court's finding that he used a deadly weapon in the commission of
the offenses. Watkins presents two arguments on appeal: (1) because the registration
requirements constitute an increased penalty for his offenses, the requirements could not
be imposed based on the judicial factfindings under Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and (2) the court erred by imposing an
increased sentence based on his criminal history, which was not proved to a jury beyond
a reasonable doubt.

The persuasiveness of Watkins' deadly-weapon-finding Apprendi claim turn on
whether KORA's requirements constitute punishment for his underlying aggravated
assault on a law enforcement 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 Watkins' 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 (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

Watkins pleaded no contest to aggravated assault on a law enforcement officer, a
level 6 person felony; fleeing and eluding, a level 9 nonperson felony; and driving while
suspended, a class B misdemeanor. The district court sentenced him to 37 months'

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imprisonment and 24 months' postrelease supervision. The court further ordered Watkins
to register under KORA because it found he used a truck as a deadly weapon in the
commission of the aggravated assault. Watkins timely appealed.

For the first time on appeal, Watkins argued the registration requirements violated
his Sixth and Fourteenth Amendment rights because the predicate deadly weapon finding
was not submitted to a jury and proved beyond a reasonable doubt. And he asserted the
same error regarding the district court's use of his criminal history at sentencing. Watkins
acknowledged he did not raise these issues to the district court. He nonetheless argued
both arguments could be brought for the first time on appeal because they turn on a legal
question, citing State v. Anthony, 273 Kan. 726, 727, 45 P.3d 852 (2002).

The Court of Appeals addressed his arguments on the merits because doing so was
"'necessary to serve the ends of justice or to prevent the denial of fundamental rights'"
State v. Watkins, No. 110,702, 2014 WL 4231269, at *1 (Kan. App. 2014) (unpublished
opinion) (citing State v. Tague, 296 Kan. 993, 1000, 298 P.3d 273 [2013] [listing three
exceptions to the general prohibition of arguments raised for the first time on appeal]).
The panel rejected both claims. See 2014 WL 4231269, at *4-5.

Watkins petitioned for review of the panel's decisions on his 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).

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 MEREDITH CONTROLS THE OUTCOME

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 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 4. Watkins made no such showing.
His arguments are at best the same ones that were not persuasive in Huey, and we have
previously considered similar 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 Watkins 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 Watkins to establish KORA's requirements constitute
punishment to prevail on both his deadly weapon-use-finding Apprendi claim, his
inability to do so is fatal. 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 3.

Without a factual record, we cannot conclude that 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, Watkins has not demonstrated, as he must, that
the registration requirements constitute punishment. And because the registration

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requirements did not increase his punishment under the law of this case, it was not
necessary that the deadly weapon-use finding be made by a jury.

Affirmed.

STEGALL, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1

***
MALONE, J., concurring: I write separately to express my disagreement with this
court's decision in State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127, cert. denied
137 S. Ct. 226 (2016), and its progeny, but explain how the principle of stare decisis now
compels me to concur with the majority opinion in this case.

In September 2014, as a senior judge, I was assigned to the Supreme Court to hear
and decide cases until a vacancy on the court was permanently filled. See K.S.A. 20-
2616(b) ("A retired justice or judge so designated and assigned to perform judicial
service or duties shall have the power and authority to hear and determine all matters
covered by the assignment."); see also Kan. Const. art. 3, § 6(f) ("The supreme court may
assign a district judge to serve temporarily on the supreme court."); Rule 601B,
Application, III (A) (2017 Kan. S. Ct. R. 429) ("A retired judge under contract to the
senior judge program shall be deemed a part-time judge.").

1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 110,702
vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20-2616.

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 In that capacity, I sided with the majority opinions in State v. Buser, 304 Kan. 181,
371 P.3d 886 (2016), State v. Redmond, 304 Kan. 283, 371 P.3d 900 (2016), and Doe v.
Thompson, 304 Kan. 291, 373 P.3d 750 (2016), holding that the 2011 KORA statutory
scheme was punitive and retroactive application to sex offenders violated the Ex Post
Facto Clause. Likewise in State v. Charles, 304 Kan. 158, 179, 372 P.3d 1109 (2016), I
agreed with the majority that violent offender registration is punishment and its
imposition required a jury finding regarding the use of a deadly weapon under Apprendi.

Before these opinions were filed, Court of Appeals Judge Caleb Stegall was sworn
in to fill the vacancy on the Supreme Court which ultimately changed the balance of the
court on this issue. Justice Stegall authored Petersen-Beard, wherein the newly
constituted permanent court held lifetime postrelease registration for sex offenders was
not punishment for purposes of the Eighth Amendment and Section 9 of the Kansas
Constitution Bill of Rights. 304 Kan. at 209. All of the opinions were filed on the same
day. However, the Petersen-Beard majority overruled contrary holdings in Buser,
Redmond, and Thompson. 304 Kan. at 192-93. Also, the Charles court acknowledged that
Petersen-Beard may influence future reliance on it as precedent. 304 Kan. at 179.

Two subsequent cases cited in this opinion were decided by the full permanent
court, and they are potentially at odds with my reasoning in
Buser/Thompson/Redmond/Charles. In Meredith, the majority held the defendant failed
to demonstrate that KORA registration was punishment for drug offenders by offering the
"clearest proof" to overcome the legislature's nonpunitive civil intent. 306 Kan. at __, slip
op. at 2. In Huey, the majority held that Charles was not "viable authority" that KORA
was not punitive for violent offenders; that Huey did not demonstrate that the registration
requirements constituted punishment; and thus the factual finding that he used a deadly
weapon did not need to be decided by a jury. 306 Kan. at __, slip op. at 3. The basis for
these decisions rests in part on the reasoning of Petersen-Beard.
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 Prior to becoming a permanent member of this court, then Judge Stegall sat on the
Court of Appeals panel that rendered the per curiam decision we are now reviewing.
Accordingly, Justice Stegall recused himself from this case and I am once again serving
in his stead. In this regard I am faced with two choices: (1) hold that Petersen-Beard,
Meredith, and Huey were wrongly decided, once again changing the composition of the
majority resulting in different results for different defendants; or (2) concurring with the
majority opinion based on caselaw subsequently decided by the full permanent court. The
doctrine of stare decisis compels the latter.

This court does "not overrule precedent lightly and must give full consideration to
the doctrine of stare decisis." State v. Sherman, 305 Kan. 88, 107, 378 P.3d 1060 (2016).

"Once a point of law has been established by a court, it will generally be followed by the
same court and all courts of lower rank in subsequent cases when the same legal issue is
raised. Stare decisis operates to promote system-wide stability and continuity by ensuring
the survival of decisions that have been previously approved by a court. The application
of stare decisis ensures stability and continuity—demonstrating a continuing legitimacy
of judicial review. Judicial adherence to constitutional precedent ensures that all branches
of government, including the judicial branch, are bound by law."

"Stare decisis is not a rigid inevitability but a prudent governor on the pace of legal
change. A court of last resort will follow that rule of law unless clearly convinced it was
originally erroneous or is no longer sound because of changing conditions and that more
good than harm will come by departing from precedent." 305 Kan. 88, Syl. ¶¶ 2, 3.

Additionally, in my role as a judge assigned to hear this case, I am mindful of
Chief Justice McFarland's admonition: "While fidelity to the doctrine of stare decisis is
not an 'inexorable command,' we should be highly skeptical of reversing an earlier
decision where nothing has changed except the composition of the court." (Emphasis
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added.) State v. Marsh, 278 Kan. 520, 577, 102 P.3d 445 (2004) (McFarland, C.J.,
dissenting), rev'd and remanded on other grounds 548 U.S. 163, 126 S. Ct. 2516, 165 L.
Ed. 2d 429 (2006), vacated in part on other grounds on remand 282 Kan. 38, 102 P.3d
445 (2006).

While I strongly stand by the position that KORA's statutory scheme is so punitive
in effect that it negates the ostensibly implied legislative intent to deem it civil,
Thompson, 304 Kan. at 327-28, I respectfully recognize that the full court's majority has
clearly spoken on this matter since my participation in
Buser/Thompson/Redmond/Charles. To add to Chief Justice McFarland's caution, my
assignment to this case does nothing but temporarily change the composition of the court.
Indeed, many other KORA cases are pending before the full permanent court, so
accepting Petersen-Beard, Meredith, and Huey as binding precedent in this case will
ensure "stability and continuity" of prior decisions. Whereas, departing from this
precedent would cause more harm than good because it would result in conflicting
opinions by this court creating uncertainty and diminishing the legitimacy of continuing
judicial review. 305 Kan. 88, Syl. ¶¶ 2, 3.

The doctrine of stare decisis compels my concurrence in this case. Under
Petersen-Beard, Meredith, and Huey, Watkins has not demonstrated that KORA
registration requirements for violent offenders are punishment and thus he was not
entitled to relief under Apprendi.

***

BEIER, J., dissenting: Consistent with my earlier votes in State v. Huey, 306 Kan.
__, __ P.3d __ (No. 109,690, filed August 11, 2017), slip op. at 8-9, and in related cases,
see State v. Meredith, 306 Kan. ___, ___ P.3d __ (No. 110,520, filed August 4, 2017),

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slip op. at 11-12; State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127, cert. denied 137
S. Ct. 226 (2016), I respectfully dissent from the majority's decision in this case.

As I have previously written:

"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, dissenting).

Defendant Joshua Harold Watkins 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, Watkins 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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