Opinion
No. 108,275.
2013-06-7
STATE of Kansas, Appellee, v. Rebecca WINGO, Appellant.
Appeal from Crawford District Court; Donald R. Noland, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Crawford District Court; Donald R. Noland, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Rebecca Wingo plead no contest to one count of second-degree intentional murder, and the State dismissed charges of aggravated robbery and conspiracy to commit aggravated robbery. On November 28, 2011, the district court sentenced Wingo to 155 months' incarceration and ordered her to register as an offender for 15 years. On January 19, 2012, the district court denied Wingo's request to modify her sentence. We affirm.
On May 17, 2012, Wingo filed a pro se appeal challenging all the decisions in her case. We retained Wingo's appeal under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). Now, for the first time on appeal, Wingo argues the district court erred in ordering her to register as an offender for a 15–year period when the law at the time she committed the crime (May 20, 2010) called for a 10–year period. Wingo claims a violation of the Ex Post Facto Clause of the United States Constitution.
The Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , was amended in 2011, after Wingo's conviction but prior to her sentencing, to increase the registration period applicable to Wingo from 10 to 15 years. See K.S.A.2011 Supp. 22–4906(a)(1)(G). The law as it existed at the time Wingo committed her crimes called for a 10–year registration period. See K.S.A.2009 Supp. 4902(d)(3); Kansas 22–4906(a). Wingo argues the increased registration period cannot be applied against her retroactively without violating the Ex Post Facto Clause.
The constitutionality of a statute is a question of law over which we have unlimited review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996), cert denied521 U.S. 1118 (1997). The issue is controlled by our Supreme Court's decision in Myers as applied in State v. Evans, 44 Kan.App.2d 945, 242 P.3d 220 (2010).
Myers was convicted of sexual battery and rape prior to the enactment of the Kansas Sex Offender Registration Act (KSORA), which later became KORA. Myers argued that because KSORA was not in place at the time of his offense, it violated the Ex Post Facto Clause as applied to him. The Myers court disagreed and concluded the registration requirements were remedial and constitutional, 260 Kan. at 671, and the purpose of the imposed registration requirement was not punitive but for public safety. 260 Kan. at 681.
The United States Supreme Court also has upheld the constitutionality of offender registration laws. In Smith v. Doe, 538 U.S. 84, 105–06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the Court held that Alaska's sex offender registration act was not punitive and did not violate the Ex Post Facto Clause. The Smith Court held that the registration requirement served to make a valid regulatory program effective and do not impose punitive restraints in violation of the Ex Post Facto Clause. 538 U.S. at 102.
The Evans court was asked to decide whether an amendment to KORA could be retroactively applied without violating the Ex Post Facto Clause. In deciding that it could, the court cited to Myers where it was said the offender registration provisions are not part of the punishment for the crime. Thus, the Evans court held that the retroactive application of changes in the registration requirements did not violate the Ex Post Facto Clause. 44 Kan.App.2d at 948.
Wingo points out that in Myers the Kansas Supreme Court held that the public notice provisions of KORA are punishment. As a result, Wingo contends she can only be required to publically register for 10 years and thereafter her registration must be converted to a nonpublic registration. See Myers, 260 Kan. 669, Syl. ¶ 1 (treating KORA registration, on the one hand, as nonpunitive, and public disclosure of that information under KORA, on the other, as punitive); accord State v. Scott, 265 Kan. 1, 5–6, 961 P.2d 667 (1998) (accepting this distinction in Myers in presuming public disclosure requirements to be punitive and finding they impose constitutionally permissible form of punishment).
A recent unpublished decision by a panel of this court undermines Wingo's argument. Specifically, in In re E.L. W., No. 106,241, 2012 WL 686861, at *4 (Kan.App.2012) (unpublished opinion), petition for review filed March 19, 2012, the court found the United States Supreme Court's more recent interpretation of the Eighth Amendment in Smith, 538 U.S. at 105–06, regarding the nonpunitive nature of Alaska's similar offender registration requirements, effectively undermines the holding in Myers that the disclosure requirements of KORA are punitive for Ex Post Facto purposes. The E.L. W. court then reasoned: “In turn, the premise underlying Scott—that the disclosure provisions of KORA amount to punishment—has been undone. See Scott, 265 Kan. at 5 (acknowledging that the Kansas Supreme Court has interpreted the state constitutional bar on cruel and unusual punishment to be coterminous with the Eighth Amendment prohibition).” In re E.L.W ., 2012 WL 686861, at *4.
We agree with the E.L.W. court's reasoning and accordingly Wingo's argument concerning the limit on public disclosure for a maximum duration of 10 years to avoid a violation of the Ex Post Facto Clause necessarily fails.
Turning to Wingo's primary challenge to the State's position that she should have to register under KORA for 15 years, Wingo contends she is subject only to the 10–year registration period in effect at the time she committed the crime because to hold otherwise would violate the Ex Post Facto Clause. Wingo acknowledges the holdings in Smith and Myers. She suggests, however, that both the United States Supreme Court and the Kansas Supreme Court might now reach a different result in analyzing the 2011 version of the KORA.
In support, Wingo argues there are stark differences between the following categorical provisions of the current version of the KORA versus the version of the KORA analyzed in Myers and the Alaskan statutory scheme analyzed in Smith: (1) the class of offenders; (2) the penalties for failing to register; (3) the registration procedures; (4) the duration of registration periods for first-time offenders; (5) the information required for registration; and (6) the ability (or lack thereof) to apply for relief from registration. Based on these differences, Wingo asks us to revisit the issue of whether registration under KORA is now punishment under the factors applied by the United States Supreme Court in the punitive/nonpunitive effect analysis in Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) (affirmative disability or restraint; historical view of registration; lack of scienter; punishment, retribution, and deterrence; behavior already a crime; alternative purposes for registration; and registration is excessive). We are bound by precedent.
Until the Kansas Supreme Court signals an intent to depart from its holding in Myers, we are duty bound to follow its conclusion that the KORA registration requirement challenged by Wingo does not violate the Ex Post Facto Clause. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Likewise, we are bound by the United States Supreme Court's interpretation of Alaska's similar offender registration scheme under the Ex Post Facto Clause in Smith. See Trinkle v. Hand, 184 Kan. 577, 579, 337 P.2d 665,cert. denied361 U.S. 846 (1959) (noting that under Article VI of the United States Constitution, the interpretation placed on the Constitution and laws of the United States by the decisions of the supreme court of the United States is controlling upon state courts and must be followed. This we may add is true regardless of views of state courts even though such decisions are inconsistent with their prior decisions.).
Wingo cites to no authority suggesting any such intention on the part of the Kansas Supreme Court, and none has been independently found. Accordingly, we decline Wingo's invitation to revisit the holding in Myers.
Affirmed.