Opinion
No. 108,511.
2013-08-2
STATE of Kansas, Appellee, v. Anthony COKER, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge. Christopher S. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Christopher S. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Anthony Coker appeals from the district court's decision to deny the petition he filed to expunge his conviction for unlawful sexual relations. Coker argues the district court erred in retrospectively applying a newly enacted statute that prohibits the court from expunging a conviction if the time period in which an offender was required to register under the Kansas Offender Registration Act (KORA) has not yet expired. For the reasons stated below, we reverse and remand with directions.
Facts
On January 11, 2008, Coker pled nolo contendere to one count of unlawful sexual relations. This conviction resulted from Coker's unlawful sexual relations with a 17–year–old female student at the high school where Coker was an assistant football coach and paraeducator. On February 29, 2008, he was sentenced to an underlying 6–month prison term with 12 months of postrelease supervision and placed on probation with community corrections for 12 months. Coker also was required to register as a sex offender for 10 years under the KORA.
On February 28, 2009, Coker was discharged from community corrections. On March 26, 2012, he filed a petition to expunge his conviction under K.S.A. 21–4619. The State objected, arguing that Coker was ineligible for the relief he requested because K.S.A.2011 Supp. 21–6614a, which became effective on July 1, 2011, prohibits expungement of a conviction in a case like this, where the time period in which an offender is still required to register under the KORA has not yet expired. In response, Coker argued the newly enacted legislation could not be retroactively applied under the facts of this case. Coker asserted his petition should be considered under K.S.A. 21–4619, which was the law in effect at the time of the commission of his offense. Under K.S.A. 21–4619, Coker argued the court could properly rely on State v. Divine, 291 Kan. 738, 246 P.3d 692 (2011), for the legal proposition that expunging his conviction would extinguish his requirement to register.
The district court ultimately denied Coker's petition to expunge his conviction. In support of its decision, the district court noted that, immediately after Divine was decided, the Kansas Legislature enacted K.S.A.2011 Supp. 21–6614a(d), which prohibits expunging convictions for sex offenders during the period in which they are required to register. Based on this timing, the district court concluded that the legislature acted in response to Divine and intended to divest the courts of any discretion to remove or shorten the statutory time period governing offender registration or to allow expungement of any offense during that statutorily set period of registration. Coker appeals from this decision.
Analysis
The sole issue on appeal is whether the district court erred in retrospectively applying K.S.A.2011 Supp. 21–6614a(d) in this case instead of applying the version of the statute in effect at the time of the commission of Coker's offense. Coker makes two arguments in support of his position that the district court erred. First, Coker argues that neither the language nor the substantive changes to the statute made by the legislature support retrospective application of K.S.A.2011 Supp. 21–6614a(d) to the facts presented in his case. Second, and assuming for purposes of this argument that the statutory changes made by the legislature did support retrospective application of the statute, Coker argues retrospective application violates the Ex Post Facto Clause of the United States Constitution. Because we are persuaded by Coker's first argument that the district court erred in retrospectively applying K.S.A.2011 Supp. 21–6614a(d), we find his ex post facto violation argument moot.
K.S.A.2011 Supp. 21–6614a(d)
At the time of Coker's offense in September 2007, the expungement statute in effect was K.S.A. 21–4619, which provided:
“[A]ny person convicted in this state of ... nondrug crimes ranked in severity levels 6 through 10 ... may petition the convicting court for the expungement of such conviction or related arrest records if three or more years have elapsed since the person: (A) Satisfied the sentence imposed; or (B) was discharged from probation, a community correctional services program, parole, postrelease supervision, conditional release or a suspended sentence .” K.S.A. 21–4619(a)(1).
In 2011, the legislature renumbered K.S.A. 21–4619 as K.S.A.2011 Supp. 21–6614 and amended the statute four times. Thus, the 2011 Cumulative Supplement to the Kansas Statutes Annotated includes K.S.A.2011 Supp. 21–6614, K.S.A.2011 Supp. 21–6614a, K.S.A.2011 Supp. 21–6614b, and K.S.A.2011 Supp. 21–6614c, each of which is substantively slightly different. Relevant to the issue presented here, the legislature added subsection (d) to K.S.A.2011 Supp. 21–6614a, which stated:
“Notwithstanding any other law to the contrary, for any offender who is required to register as provided in the Kansas offender registration act, K.S.A. 22–4901 et seq., and amendments thereto, there shall be no expungement of any conviction or any part of the offender's criminal record while the offender is required to register as provided in the Kansas offender registration act.” (Emphasis added.) K.S.A.2011 Supp. 21–6614a(d).
In 2012, the legislature repealed K.S.A.2011 Supp. 21–6614a and included the substance of subsection (d) as subsection (e) in K.S.A.2012 Supp. 21–6614.
Thus, under the version of K.S.A. 21–4619 in effect at the time Coker filed his petition for expungement, the district court did not have the authority to expunge Coker's conviction because Coker was still required to register. Under the version of the statute at the time of Coker's offense in 2007, however, the district court had discretion to expunge Coker's conviction if Coker had not been convicted of a felony in the past 2 years, the circumstances and the behavior of Coker warranted expungement, and expungement was consistent with the public welfare. K.S.A. 21–4619(e). Pursuant to Divine, expunging Coker's conviction under the former version of the statute would extinguish his requirement to register.
Whether the district court erred in applying the statute in effect at the time Coker filed his petition for expungement instead of the statute in effect at the time of Coker's offense requires interpretation of a statute, which is a question of law over which appellate courts have unlimited review. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). To that end, Kansas courts long have held that a statute operates prospectively unless its language clearly indicates a legislative intent to apply it retrospectively. State v. Hutchinson, 228 Kan. 279, 287, 615 P.2d 138 (1980). An exception to this long standing rule arises when the statutory change does not prejudicially affect the substantive rights of the parties and the change is merely procedural or remedial in nature. In those cases, the statutory change applies retroactively. State v. Williams, 291 Kan. 554, 557, 244 P.3d 667 (2010).
There is no language in K.S.A.2011 Supp. 21–6614a(d) clearly indicating a legislative intent that it apply retrospectively
With respect to whether the language in K.S.A.2011 Supp. 21–6614a(d) clearly indicates a legislative intent to apply it retrospectively, we find the Supreme Court's recent decision in State v. Jaben, 294 Kan. 607, 277 P.3d 417 (2012), instructive in our analysis. In Jaben, the State appealed the district court's decision to expunge Jaben's 1977 convictions for attempted rape, rape, aggravated sodomy, aggravated kidnapping, and aggravated battery. The State argued that the district court erred by applying the statute in effect at the time Jaben committed these crimes, K.S.A. 21–4617, which permitted expungement of his convictions, instead of applying the expungement statute in effect at the time Jaben filed his expungement petition, K.S.A. 21–4619(c), which prohibited expungement of those convictions. 294 Kan. at 607–08. The court was not persuaded by the State's argument. Specifically, the court found that K.S.A. 21–4619(c) did not expressly state that it applied retrospectively to convictions for crimes occurring before its enactment. 294 Kan. at 613. The district court also found no other indication that the legislature intended that the expungement statute be applied retrospectively.
In so finding, the court noted that the only provision of the statute that appeared to address prior offenses was subsection (c)(22), which prohibited expungement of “ ‘any conviction for any offense in effect at any time prior to the effective date of this act, that is comparable to any offense as provided in this subsection.” 294 Kan. at 613; see K.S.A. 21–4619(c)(22). The court, however, declined to interpret this “ ‘catch all’ “ provision as a clear expression of legislative intent for retrospective application of the entire statute. 294 Kan. at 613. Thus, the court ultimately concluded, “because K.S.A. 21–4619 contains no clear language indicating a legislative intent for retrospective application, we conclude the statute applies only prospectively.” 294 Kan. at 607, 613.
Although the court in Jaben cautioned that its discussion of “the issue of whether K.S.A. 21–4619 has retrospective application should not be read or interpreted to apply to the statute currently in effect or any other future amended version of the statute,” the Jaben court's reasoning is certainly analogous and relevant to the present issue of whether it was appropriate for the district court to apply K.S.A.2011 Supp. 21–6614a(d) retrospectively in this case. 294 Kan. at 610. Like the older version of the expungement statute examined in Jaben, the legislature did not include any language in K.S.A.2011 Supp. 21–6614a(d) that would clearly indicate its intent that the statute be applied retrospectively to crimes before its enactment. In fact, as Coker notes, other provisions of K.S.A.2011 Supp. 21–6614a indicate that the legislature knew how to explicitly make sections of the expungement statute apply retrospectively and evidently chose not to do so in subsection (d). For example, subsection (k) provided that “[t]he provisions of subsection (j)(17) shall apply to records created prior to, on and after July 1, 2011.” K.S.A.2011 Supp. 21–6614a(k). In addition, K.S.A.2011 Supp. 21–6614a(c)(19) prohibited expungement of “any conviction for any offense in effect at any time prior to [the effective date of this act], that is comparable to any offense as provided in this subsection.” Of course, this language is identical to K.S.A. 21–4619(c)(22), which the Jaben court found was not a clear expression of legislative intent warranting retrospective application of the entire statute. 294 Kan. at 613.
Because K.S.A.2011 Supp. 21–6614a(d) contains no clear language indicating the legislature intended the statute to apply retrospectively, we move on to determine whether the statutory change prejudicially affects the substantive rights of the parties or whether the change is merely procedural in nature.
The statutory change prejudicially affects the substantive rights of the parties and is not merely procedural in nature
As related to criminal law and procedure, substantive laws define criminal acts and prescribe punishments. Procedural laws provide or regulate the steps by which a defendant is tried and punished. Hutchinson, 228 Kan. at 287; see also State v. Brooker, 27 Kan.App.2d 396, 399, 4 P.3d 1180 (“When no legislative mandate is controlling, whether a statute is to be given retroactive effect will depend on whether it proscribes certain conduct or assigns a punishment for that conduct or whether it merely establishes the method by which the conduct is to be evaluated.”), rev. denied 269 Kan. 935 (2000). The line between substantive and procedural laws is difficult to discern. State v. Chapman, 15 Kan.App.2d 643, 646, 814 P.2d 449 (1991).
In order to determine whether the newly added constraints set forth in K.S.A.2011 Supp. 21–6614a(d) are substantive or procedural, we begin our discussion by reviewing the relevant facts and the applicable law. After entering a plea of nolo contendere in this case, Coker was convicted of unlawful sexual relations. At sentencing, the court placed Coker on probation and ordered him to register as a sex offender for 10 years. With regard to his conviction, the journal entry of judgment specifically reflects that the court, as it was required to do pursuant to K.S.A.2006 Supp. 21–4619(g), properly informed Coker that he had a right to expunge his conviction. At the time he was informed of this right, the statute conferring that right was K.S.A.2006 Supp. 21–4619, which, among other things, provided:
• Any person convicted in this state of a nondrug crime ranked in severity levels 6 through 10 may petition the convicting court for the expungement of such conviction or related arrest records if 3 or more years have elapsed since the person satisfied the sentence imposed or since the person was discharged from probation, a community correctional services program, parole, postrelease supervision, conditional release, or a suspended sentence. K.S.A.2006 Supp. 21–4619(a)(1).
• The court is required to conduct a hearing on the petition and must provide advance notice of the hearing to the prosecuting attorney and the arresting law enforcement agency. K.S.A.2006 Supp. 21–4619(d).
• At the hearing on the petition, the court shall order the petitioner's arrest record, conviction, or diversion expunged if the court finds that (1) the petitioner has not been convicted of a felony in the past 2 years and no proceeding involving any such crime is presently pending or being instituted against the petitioner; (2) the circumstances and behavior of the petitioner warrant the expungement; and (3) the expungement is consistent with the public welfare. K.S.A.2006 Supp. 21–4619(e).
Maintaining that he had met each of the requirements set forth in K.S.A.2006 Supp. 21–4619(a)(1), the statute in effect when Coker was advised by the court of his right to seek expungement, Coker filed a petition to expunge his conviction. Significantly, there appears to be no dispute that Coker did, indeed, meet each of the requirements set forth in K.S.A.2006 Supp. 21–4619(a)(l) and, therefore, was entitled to file his petition. Nevertheless, the district court found a newly added constraint to issuing an order of expungement precluded the court from considering the underlying merits of Coker's petition. Thus, regardless of whether an order of expungement was warranted, the court found K.S.A.2011 Supp. 21–6614a(d) divested it of any authority to grant Coker's petition because the 10–year period over which Coker was required to register under the KORA had not yet expired.
We find the newly added constraint set forth in K.S.A.2011 Supp. 21–6614a(d)—which prohibits the court from granting Coker's petition for expungement while he is required to register—prejudicially affects the substantive right previously conferred upon him by statute to have his petition for expungement considered by the court on its merits. By divesting the court of authority to grant Coker's petition based on criteria that was of no consequence at the time Coker was convicted, K.S.A.2011 Supp. 21–6614a(d) effectively deprives Coker of his right to seek expungement as that right existed when he was convicted. With regard to that right, our Supreme Court has suggested that the mere existence of a criminal record can be construed as punishment:
“Over the past 50 years American correctional law, turning away from the vengeance concept, has focused increasingly on the rehabilitation of the individual offender and the development of means and practices appropriate to that end. It has become common knowledge today that a criminal record is a serious handicap which works against the rehabilitation of the ex-offender. The consequences of a criminal conviction include not only the formal penalties and restrictions imposed by law but also collateral sanctions incidentally imposed by society. Although the criminal offender has paid his debt imposed by law, society stigmatizes him with the ex-convict label.” State v. Miller, 214 Kan. 538, 542, 520 P.2d 1248 (1974).
In sum, we find the newly added constraint to issuing an order of expungement that precluded the court from considering the underlying merits of Coker's petition prejudicially affected Coker's substantive rights and was not merely a change to the method or procedure by which Coker could seek expungement. As such, the district court erred in applying the 2011 version of the statute retrospectively.
Reversed and remanded for consideration of Coker's petition for expungement based on the version of the statute in effect at the time of Coker's conviction.