State v. N.R. ( 2019 )

No. 119,796
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
N.R.,
Appellant.
SYLLABUS BY THE COURT
1.
We presume statutes are constitutional and resolve all doubts in favor of a statute's
validity.
2.
Lifetime registration for juvenile sex offenders mandated by the Kansas Offender
Registration Act, K.S.A. 22-4901 et seq., does not constitute punishment for purposes of
applying provisions of the United States Constitution.
3.
Lifetime registration for juvenile sex offenders mandated by the Kansas Offender
Registration Act, K.S.A. 22-4901 et seq., does not constitute punishment for purposes of
applying section 9 of the Kansas Constitution Bill of Rights.
4.
Lifetime registration for juvenile sex offenders mandated by the Kansas Offender
Registration Act, K.S.A. 22-4901 et seq., is not part of a juvenile offender's sentence.
1
5.
To determine whether a legislature's statutory scheme is punitive as applied to a
juvenile offender we use the "intent-effects" test adopted in State v. Petersen-Beard, 304
Kan. 192, 194-95, 377 P.3d 1127 (2016).
6.
The Kansas Offender Registration Act, K.S.A. 22-4901 et seq., itself, rather than a
court order, imposes the duty to register upon sex offenders.
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed September 27,
2019. Affirmed.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before POWELL, P.J., GARDNER, J., and LAHEY, S.J.
GARDNER, J.: N.R. appeals his conviction of failing to register as a sex offender.
He argues that the district court erred in denying his motion to dismiss, which argued that
imposition of lifetime postrelease registration under the Kansas Offender Registration
Act (KORA), K.S.A. 22-4901 et seq., is unconstitutional as applied to a 14-year-old
juvenile offender. N.R. also argues that his sentence is illegal because the registration
requirement was improperly imposed by a magistrate court instead of by a district court.
But we find that the registration requirement is not punishment as to a juvenile and is not
part of a juvenile offender's sentence, so it does not violate the constitutional provisions
N.R. raises. And the relevant statutes impose on the defendant a duty to register, making
any lack of a magistrate court's authority to do so immaterial. Finding no error, we
affirm.
2
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, N.R., then 14 years old, pleaded guilty to rape and was adjudicated a
juvenile offender. As a result of his plea, the magistrate court granted N.R. probation with
an underlying sentence of 24 months in a correctional facility. The magistrate court also
ordered N.R. to register as a sex offender, without stating how long N.R. had to do so.
N.R. understood that he had to register for a period of five years from the date of
adjudication. See K.S.A. 2006 Supp. 22-4906(h)(1) (requiring registration for five years
under certain circumstances). But in 2011, before the five-year registration period
expired, the Legislature amended the statute to require lifetime registration for some
juvenile offenders based on age and the severity of the offense:
"[An] offender 14 years of age or more who is adjudicated as a juvenile offender for an
act which if committed by an adult would constitute a sexually violent crime set forth in
subsection (c) of K.S.A. 22-4902, and amendments thereto, and such crime is an off-grid
felony or a felony ranked in severity level 1 of the nondrug grid as provided in K.S.A. 21-
4704, prior to its repeal, or section 285 of chapter 136 of the 2010 Session Laws of
Kansas, and amendments thereto, shall be required to register for such offender's
lifetime." L. 2011, ch. 95, § 6(h).
N.R. was adjudicated of committing rape, a severity level 1 offense if committed by an
adult. See K.S.A. 2005 Supp. 21-3502(a)(2), (c). So the amended registration statute, as
applied to N.R., required lifetime registration.
N.R. admits knowing that registration has always been a requirement of his
release, and N.R. has registered as an offender from his adjudication until the present,
except for a few instances. In 2012, N.R. was convicted of failing to register. Then in
2017, N.R. was charged with two counts of failing to register.
3
Before trial on those two counts, N.R. moved to dismiss, the denial of which he
now appeals. He argued that the lifetime registration requirement:
 Violated the cruel and unusual punishment provision of the Eighth
Amendment of the United States Constitution;
 violated the cruel or unusual punishment provision of section 9 of the
Kansas Bill of Rights;
 violated the Ex Post Facto Clause of the United States Constitution; and
 was an illegal sentence imposed by a magistrate judge without authority to
impose registration.
The district court held a hearing on N.R.'s motion and then denied it based on its duty to
follow our Supreme Court's precedent about lifetime registrations requirements.
N.R. then tried his case to the bench based on stipulated facts. Those relevant facts
are:
"3. Defendant renews his objections and arguments regarding cruel and unusual
punishment, ex post facto, and illegal sentence raised by written motion and in the motion
hearing held February 9, 2018. The court denied the motion. The Defendant specifically
reserves his right to appeal the Court's denial of the motion to dismiss in this matter.
"4. The investigating officers in this case would testify consistently with their
prior testimony at the preliminary hearing held November 27, 2017, and said testimony is
hereby incorporated by reference. A summary of the evidence as it would be presented by
the investigating officers and witnesses in this case is as follows:
"a. [N.R.] is required to register as a sex offender based on an adjudication for
Rape, Sexual Intercourse with a Child < 14 YOA in Saline County, KS case #
2006 JV 238. (See attached Exhibit 1, which is hereby incorporated herein by
reference as being accurate.).
"b. [N.R.] is required to register four times each year with the months of
registration determined by his birth month of December; making his registration
4
months March, June, September and December. [N.R.] registered June 30, 2016
listing his address as 100 E. 2nd, Apt. 9, Hutchinson, Reno County, Kansas. That
address is managed by New Beginnings Inc. (New Beginnings).
"c. On August 11, 2016, New Beginnings terminated [N.R.'s] stay and he no
longer resided at 100 E. 2nd, Apt. 9, Hutchinson, Reno County, Kansas. Brenda
Heim of New Beginnings based the termination on no income, no permanent
housing, and refusal to comply with the requirements of the program. (See
attached Exhibit 2, which is hereby incorporated herein by reference as being
accurate.).
"d. [N.R.] failed to report his change of residence by August 15, 2016, within
three days, contrary to the requirements of his registration under K.S.A. 22-
4905(g). [N.R.] had acknowledged he understood this requirement of registration
by initialing #7 on his Kansas Offender Registration Form. (See attached Exhibit
3, which is hereby incorporated herein by reference as being accurate.).
"e. [N.R.] failed to report for registration between September 1 and September
30, 2016, his normal month of registration, contrary to the requirements of his
registration under K.S.A. 22-4905(b). [N.R.] had acknowledged he understood
this requirement of registration by initialing #5 on his Kansas Offender
Registration Form. (See attached Exhibit 3, which is hereby incorporated herein
by reference as being accurate.).
f. [N.R.] acknowledged he was required to register as an offender in Reno
County, Kansas when he filled out Kansas Offender Registration Form with a
Reno County address, 100 E. 2nd, Apt. 9, Hutchinson, Reno County, Kansas.
(See attached Exhibit 3, which is hereby incorporated herein by reference as
being accurate.).
"g. [N.R.] has a prior conviction for failure to register as a sex offender in Reno
County case # 2012 CR 549. (See attached Exhibit 4, which is hereby
incorporated herein by reference as being accurate.)."
The four exhibits referenced and incorporated in the stipulation are: (1) the original and
amended juvenile offender complaints against N.R. and the related journal entries; (2) a
document showing the termination of N.R.'s stay at New Beginnings; (3) a 2016 Kansas
5
offender registration form; and (4) a 2012 journal entry of conviction for N.R.'s failure to
register as a sex offender.
After considering the evidence, the district court found N.R. guilty of failing to
register on both counts. It sentenced N.R. to a controlling 49 months in prison but granted
a dispositional departure to community corrections for 36 months. N.R. appeals the
district court's denial of his motion to dismiss, reprising the arguments he made below.
I. THE DISTRICT COURT DID NOT ERR IN FINDING THE REGISTRATION REQUIREMENT
CONSTITUTIONAL, AS APPLIED TO JUVENILES.
We first address N.R.'s argument that KORA's requirement of lifetime registration
as a sex offender is unconstitutional as applied to juveniles. The State rejects N.R.'s as-
applied constitutional arguments because the lifetime registration requirement is neither
punishment nor part of N.R.'s criminal sentence.
Determining a statute's constitutionality is a question of law subject to our
unlimited review. We presume statutes are constitutional and must resolve all doubts in
favor of a statute's validity. State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127
(2016). We must interpret a statute in a way that makes it constitutional if any reasonable
construction exists that would maintain the Legislature's apparent intent.
This court is duty bound to follow our Supreme Court precedent, absent some
indication it is departing from its previous position. State v. Meyer, 51 Kan. App. 2d
1066, 1072, 360 P.3d 467 (2015). Our Supreme Court has recently found that "[t]he
legislature intended KORA to be civil and nonpunitive for all classes of offenders
currently subject to its provisions." State v. Huey, 306 Kan. 1005, 1009, 399 P.3d 211
(2017), cert. denied 138 S. Ct. 2673 (2018).
6
Kansas courts have repeatedly held that offender registration under KORA is not
punishment. See, e.g., Petersen-Beard, 304 Kan. at 209 (finding that lifetime registration
as a sex offender under KORA is not punishment for either Eighth Amendment or § 9
purposes); State v. Rocheleau, 307 Kan. 761, Syl. ¶ 4, 415 P.3d 422 (2018); State v.
Watkins, 306 Kan. 1093, 1095, 401 P.3d 607 (2017); Huey, 306 Kan. at 1009-10.
Because registration is not punishment, our Supreme Court has explicitly rejected the
argument that KORA's lifetime registration requirement violates an offender's
constitutional rights as they relate to cruel and unusual punishment or ex post facto
provisions. See State v. Reed, 306 Kan. 899, 904, 399 P.3d 865 (2017) ("Registration
pursuant to KORA for sex offenders is not punishment. Accordingly, retroactive
application of the tolling provision to extend Reed's registration period could not violate
the Ex Post Facto Clause."); Petersen-Beard, 304 Kan. at 209 ("Because we conclude the
registration requirements Petersen-Beard complains of are not punishment, his claim that
those requirements violate the Eighth Amendment's prohibition against cruel and unusual
punishment cannot survive.").
Similarly, the Kansas Supreme Court has held that a registration requirement is
not part of a defendant's criminal sentence. Rocheleau, 307 Kan. at 765; State v.
Marinelli, 307 Kan. 768, 786, 415 P.3d 405 (2018). As Marinelli noted:
"[W]ithin KORA, there are statutory provisions that argue against considering
registration to be part of a criminal sentence. For example, if an individual is convicted of
a qualifying crime, but remains free on bond pending sentencing, that individual is
immediately obliged upon conviction to register within three days. See K.S.A. 2017
Supp. 22-4904(a)(1)(B). And failing to do so could cause that individual to be charged
with a new crime for not registering—even before sentencing for the underlying
conviction." 307 Kan. at 786.
N.R. acknowledges these adverse rulings. Yet he asserts that they do not apply
here because they considered only adult criminals, and, as the United States Supreme
7
Court has held, juveniles are different than adults. N.R. cites several federal cases that
highlight the diminished culpability of juveniles and require a heightened scrutiny by the
sentencing court when considering that diminished culpability. For example, Miller v.
Alabama, 567 U.S. 460, 489, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), outlawed the
mandatory imposition of life without parole sentences for juveniles convicted of
homicide. Miller was the third in a line of cases in which the United States Supreme
Court held that "children are constitutionally different from adults for purposes of
sentencing." 567 U.S. at 471; see Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct. 2011,
176 L. Ed. 2d 825 (2010) (finding Eighth Amendment prohibits imposition of life
without parole sentence on juvenile offender who did not commit homicide); Roper v.
Simmons, 543 U.S. 551, 578-79, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (holding
imposition of the death penalty on offenders who were under age 18 when they
committed their capital crimes was prohibited by the Eighth and Fourteenth
Amendments).
Roper explained why the law does not usually equate the failings of a minor with
those of an adult:
"The susceptibility of juveniles to immature and irresponsible behavior means 'their
irresponsible conduct is not as morally reprehensible as that of an adult.' Their own
vulnerability and comparative lack of control over their immediate surroundings mean
juveniles have a greater claim than adults to be forgiven for failing to escape negative
influences in their whole environment. The reality that juveniles still struggle to define
their identity means it is less supportable to conclude that even a heinous crime
committed by a juvenile is evidence of irretrievably depraved character. From a moral
standpoint it would be misguided to equate the failings of a minor with those of an adult,
for a greater possibility exists that a minor's character deficiencies will be reformed.
[Citations omitted.]." 543 U.S. at 570.
8
We have no quarrel with that general rationale. Those cases, however, dealt with
the imposition of states' "harshest possible penalt[ies]"—execution and imprisonment for
life without parole. 567 U.S. at 479. N.R. cites no authority for his assertion that a
lifetime registration requirement is one of Kansas' harshest possible penalties. Because
KORA's registration requirement is not punishment, those federal cases are unpersuasive.
The federal cases more on point examine the constitutionality of sex offender
registration requirements, generally, and as applied to juveniles. In Smith v. Doe, the
United States Supreme Court held that Alaska's sex offender registration statute
established a civil regulatory scheme and did not impose punishment, and thus did not
violate the Ex Post Facto Clause. 538 U.S. 84, 105-06, 123 S. Ct. 1140, 155 L. Ed. 2d
164 (2003). Like the Alaska statute upheld by the Supreme Court, the Kansas statute
imposes a civil regulatory regime rather than punishment. See Petersen-Beard, 304 Kan.
at 195-97. KORA requires various categories of sex offenders to provide personal
information to the state and to keep that information updated and requires the state to
publish that information. Such a scheme does not implicate the Ex Post Facto Clause or
the Cruel and Unusual Punishment Clause because it is civil and regulatory in nature.
Cases applying KORA's federal counterpart, the Sex Offender Registration and
Notification Act (SORNA), do not help N.R. Congress chose to extend SORNA to
certain juveniles—those 14 years or older at the time of their offense where "the offense
adjudicated was comparable to or more severe than aggravated sexual abuse" under 18
U.S.C. § 2241 (2012). 34 U.S.C. § 20911(8) (2017 Supp.). And SORNA may require
juveniles who fit the criteria to register as sex offenders for life. 34 U.S.C. § 20915(a)
(2017 Supp.).
Yet federal circuits have held that SORNA is not punishment. As the Kansas
Supreme Court noted in Petersen-Beard, 304 Kan. at 197, the Fourth Circuit has held that
SORNA is not punishment as applied to a juvenile. See United States v. Under Seal, 709
9
F.3d 257, 265 (4th Cir. 2013); see also United States v. Young, 585 F.3d 199, 204-05 (5th
Cir. 2009) (SORNA's express language shows that Congress sought to create a civil
remedy, so the defendant must show that either the purpose or the effect of the regulation
is in fact so punitive as to negate its civil intent. "This he cannot do."); United States v.
May, 535 F.3d 912, 920 (8th Cir. 2008) ("SORNA's registration requirement
demonstrates no congressional intent to punish sex offenders."), abrogated on other
grounds by Reynolds v. United States, 565 U.S. 432, 132 S. Ct. 975, 181 L. Ed. 2d 935
(2012). But see Piasecki v. Court Common Pleas, Bucks Cnty, PA, 917 F.3d 161, 172-73
(3d Cir. 2019) (finding sex offender registration requirements restrictive enough to
constitute custody for habeas corpus "custody" requirement and were part of petitioner's
sentence).
Even the Ninth Circuit has rejected the claim that SORNA's registration
requirement, as applied to juveniles, violates the Eighth Amendment's prohibition against
cruel and unusual punishment. In United States v. Juvenile Male, 670 F.3d 999, 1002 (9th
Cir. 2012), the Ninth Circuit found the registration requirement, even if humiliating,
failed to meet the high bar for cruel and unusual punishment claims:
"Although defendants understandably note that SORNA may have the effect of
exposing juvenile defendants and their families to potential shame and humiliation for
acts committed while still an adolescent, the statute does not meet the high standard of
cruel and unusual punishment. The requirement that juveniles register in a sex offender
database for at least 25 years because they committed the equivalent of aggravated sexual
abuse is not a disproportionate punishment. These juveniles do not face any risk of
incarceration or threat of physical harm. In fact, at least two other circuits have held that
SORNA's registration requirement is not even a punitive measure, let alone cruel and
unusual punishment. See United States v. May, 535 F.3d 912, 920 (8th Cir. 2008)
("SORNA's registration requirement demonstrates no congressional intent to punish sex
offenders'); see also United States v. Young, 585 F.3d 199, 204-05 (5th Cir. 2009)." 670
F.3d at 1010.
10
N.R. has shown no support in federal law for his position.
As for Kansas law, N.R. relies on State v. Dull, 302 Kan. 32, 351 P.3d 641 (2015),
in arguing that his age at the time of his offense must be considered before he can be
required to register for a lifetime. In Dull, our Supreme Court acknowledged the
diminished culpability of juveniles as compared to adult offenders and held that the
mandatory imposition of lifetime postrelease supervision for a juvenile convicted of
aggravated indecent liberties with a child was cruel and unusual punishment. 302 Kan. at
60-61. But Dull is distinguishable because under Kansas law, postrelease supervision is
punishment and is part of an offender's sentence. See State v. Gaudina, 284 Kan. 354,
358, 160 P.3d 854 (2007). The registration requirement, however, is not punishment and
is not part of an offender's sentence.
And Dull applied a two-pronged analysis from Graham to consider whether
punishment is cruel and unusual under the Eighth Amendment. That test requires a court
to consider the culpability of the offenders in light of their crimes and characteristics,
including age:
"'The Court first considers "objective indicia of society's standards, as expressed in
legislative enactments and state practice" to determine whether there is a national
consensus against the sentencing practice at issue. [Citation omitted.] Next, guided by
"the standards elaborated by controlling precedents and by the Court's own understanding
and interpretation of the Eighth Amendment's text, history, meaning, and purpose,"
[citation omitted], the Court must determine in the exercise of its own independent
judgment whether the punishment in question violates the Constitution.' Graham, 560
U.S. at 61.
....
"'" . . . The judicial exercise of independent judgment requires consideration of
the culpability of the offenders at issue in light of their crimes and characteristics, along
with the severity of the punishment in question. [Citations omitted.] In this inquiry the
Court also considers whether the challenged sentencing practice serves legitimate
11
penological goals. [Citations omitted.]"' Mossman, 294 Kan. at 929 (quoting Graham,
560 U.S. at 67)." Dull, 302 Kan. at 45, 51.
But the test that Dull used for determining whether punishment is cruel and unusual is not
the proper test to use in analyzing whether a legislature's statutory scheme is punitive.
See Petersen-Beard, 304 Kan. at 194-95. So Dull is neither controlling nor persuasive
here.
N.R. generally argues that the effect of the lifetime registration requirement on
him has been punitive. To show the burden that KORA's registration requirement has
placed on him, N.R. relies on two affidavits his attorney reviewed during the hearing on
his motion to dismiss—one from N.R. and one from his fiancée. But N.R. never moved to
admit these affidavits, either at the hearing on his motion to dismiss or at trial, so the
district court never admitted them as evidence. Although N.R. has included the affidavits
in the record on appeal, we cannot consider evidence not admitted at trial. See In re
Estate of Watson, 21 Kan. App. 2d 133, 137, 896 P.2d 401 (1995) (citing Eisenhut v.
Steadman, 13 Kan. App. 2d 220, 767 P.2d 293 [1989]). And the record includes no
testimony by N.R., or his fiancée, or anyone else about any hardships KORA's
registration requirement imposes. Thus we have no evidence of any hardships N.R.
suffered because of the registration requirement.
N.R. also argues, perhaps to meet part of the Dull test, that imposing a lifetime
registration requirement on a juvenile contradicts the goals and policies of the Kansas
Juvenile Justice Code. Those goals remain substantially unchanged since N.R.'s
adjudication:
"The primary goals of the juvenile justice code are to promote public safety, hold juvenile
offenders accountable for their behavior and improve their ability to live more
productively and responsibly in the community." K.S.A. 2018 Supp. 38-2301.
12
Our court emphasized the importance of the first goal in a similar case involving
offender registration. In re A.R.M., No. 95,870, 2007 WL 959621, at *5 (Kan. App. 2007)
(unpublished opinion). There, as here, the juvenile defendant argued that KORA's
requirement that juveniles register as sex offenders constitutes cruel or unusual
punishment in violation of both the Eighth Amendment to the United States Constitution
and section 9 of the Kansas Constitution Bill of Rights. There, as here, the defendant
relied on Roper in claiming that the inherent differences between adults and juveniles
render application of KORA to juveniles cruel and unusual punishment. Yet we rejected
the claim that KORA is unconstitutional as it applies to juveniles. As we explained, the
public safety concern connected to sexual offense cases is a high priority and one that is
met, at least in part, by registration requirements. See 2007 WL 959621, at *4-5.
As for the second goal, N.R. acknowledges that the registration requirement has
held him accountable for his behavior, but he claims the burdens of registration are
disproportionate to its benefits. N.R. attacks the third goal by alleging that the registration
requirement has burdened, instead of improved, his ability to live more productively and
responsibly in the community. But again he relies on the unadmitted affidavits, which we
cannot do.
N.R.'s assertion that the registration requirement contradicts the goals or policies
of the Kansas Juvenile Justice Code is thus unsupported by evidence. But even if N.R.'s
assertions were backed by evidence, that would not matter. KORA's registration
requirement is not part of the juvenile justice code, so N.R.'s showing that the registration
requirement fails to meet the primary goals of the juvenile justice code would do nothing
to show that the requirement is punishment.
N.R. has shown no reason why registration, which is not punishment for adults,
should be considered punishment for juveniles. Our Supreme Court clarified in Petersen-
13
Beard the proper test for analyzing whether a legislature's statutory scheme is punitive.
Yet N.R. makes no attempt to apply that test, which we summarize below.
Petersen-Beard adopted the two-part framework set out in Smith v. Doe, 538 U.S.
84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). Under that "intent-effects" test:
"'We must "ascertain whether the legislature meant the statute to establish 'civil' proceedings."
Kansas v. Hendricks, 521 U.S. 346, 361 [117 S. Ct. 2072, 138 L. Ed. 2d 501] (1997). If the
intention of the legislature was to impose punishment, that ends the inquiry. If, however, the
intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine
whether the statutory scheme is "'so punitive either in purpose or effect as to negate [the State's]
intention' to deem it 'civil.'" Ibid. (quoting United States v. Ward, 448 U.S. 242, 248-249 [100 S.
Ct. 2636, 65 L. Ed. 2d 742] (1980)). Because we "ordinarily defer to the legislature's stated
intent," Hendricks, supra, at 361 [117 S. Ct. 2072], "'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].'" Petersen-Beard, 304 Kan. at 194-95.
The Kansas Supreme Court held in Thompson that our Legislature intended the
lifetime registration provisions of KORA to be a nonpunitive and civil regulatory scheme
rather than punishment. See Doe v. Thompson, 304 Kan. 291, 316-17, 373 P.3d 750
(2016), overruled on other grounds by Petersen-Beard, 304 Kan. 192; Petersen-Beard,
304 Kan. at 195. Because the Legislature did not intend for KORA's lifetime sex offender
registration scheme to be punishment, N.R. bears the burden to show by "'the clearest
proof'" its effects "'override legislative intent and transform what has been denominated a
civil remedy into a criminal penalty.'" Smith, 538 U.S. at 92; see Petersen-Beard, 304
Kan. at 195.
To decide whether the effects of the legislative enactment negate and override the
Legislature's intent to establish a civil regulatory scheme, we use the seven factors
14
identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed.
2d 644 (1963). Petersen-Beard, 304 Kan. at 195. Those factors are:
1. whether the sanction involves an affirmative disability or restraint;
2. whether it has historically been regarded as a punishment;
3. whether it comes into play only on a finding of scienter;
4. whether its operation will promote the traditional aims of punishment—
retribution and deterrence;
5. whether the behavior to which it applies is already a crime;
6. whether an alternative purpose to which it may rationally be connected is
assignable for it; and
7. whether it appears excessive in relation to the alternative purpose assigned.
Mendoza-Martinez, 372 U.S. at 168-69; Petersen-Beard, 304 Kan. at 195. The Kansas
Supreme Court analyzed these factors in detail in explaining why KORA is nonpunitive.
See Petersen-Beard, 304 Kan. 204-209.
N.R. mentions a few of these factors in a conclusory way, yet he makes no attempt
to show why his status as a juvenile warrants a different result as to any factor. As a
result, N.R. has shown no reason for us to believe that the outcome of Petersen-Beard or
other controlling precedent would have been any different had it involved a juvenile
instead of an adult.
We conclude that the district court properly denied N.R.'s motion to dismiss.
Because the registration requirement is not punishment and is not part of his sentence,
N.R. can show no violation of the cruel or unusual punishment provision of the Eighth
Amendment to the United States Constitution, of section 9 of the Kansas Constitution
Bill of Rights, or of the Ex Post Facto Clause of the United States Constitution.
15
II. N.R.'S SENTENCE WAS LEGAL, AND HIS REGISTRATION REQUIREMENT WAS
PROPERLY ORDERED BY A MAGISTRATE JUDGE.
We next consider N.R.'s argument that the magistrate judge lacked authority to
order him to register, so his sentence is illegal. N.R. contends that by statute, magistrate
judges are limited to deciding matters defined in the juvenile justice code, and the
registration requirement is not in the juvenile justice code but only in the criminal code.
The State counters that any lack of magistrate authority is immaterial because sex
offenders must register under K.S.A. 2018 Supp. 22-4902(b) regardless of which court
orders it.
N.R. was originally sentenced by a magistrate judge, who also required N.R. to
register as a sex offender. Under K.S.A. 2018 Supp. 20-302b(a)(6), a magistrate judge
may hear "any action pursuant to . . . the revised Kansas juvenile justice code." Under the
revised code, "[i]f the court finds that the juvenile committed the offense charged . . . the
court shall adjudicate the juvenile to be a juvenile offender and may issue a sentence as
authorized by this code." K.S.A. 2018 Supp. 38-2356(b). N.R. is correct that this statute,
as relevant here, limits magistrate judges to deciding matters defined in the juvenile
justice code and to issuing sentences authorized by the juvenile justice code. He is also
correct that the registration requirement appears in the criminal procedure code, not in the
juvenile justice code. See K.S.A. 2018 Supp. 22-4906(h).
The registration requirement is not, however, part of a criminal defendant's
sentence. Rocheleau, 307 Kan. at 765; Marinelli, 307 Kan. at 786. KORA imposes the
duty to register on the offender, not a court's order, as the Kansas Supreme Court has
recently clarified:
16
"We have established that a person's status as an 'offender' might turn on a court
determination, but the Act itself imposes the duty to register upon any such person, rather
than the court's order. See K.S.A. 2017 Supp. 22-4903(a) (defining a KORA violation as
failure by person defined as 'offender' to comply with the Act); K.S.A. 2017 Supp. 22-
4906 (providing 'duration of registration' for 'offender' based on convicted crime);
Jackson, 291 Kan. at 37 (analogizing 'statutorily required imposition of . . . registration'
to standard probation conditions, characterizing registration as 'mandatory' rather than
'discretionary,' and holding registration requirement could be imposed in a journal entry
without being pronounced from the bench as part of sentence). In other words, under the
plain language of K.S.A. 2017 Supp. 22-4902, neither the fact of notice or its timing are
dispositive to whether a person is an 'offender' and, therefore, subject to registration
requirements." Marinelli, 307 Kan. at 790-91 (finding the district court's failure to notify
defendant of his duty to register at the time of his conviction did not excuse defendant's
duty to register under KORA).
"Since the duty to register under KORA springs into existence by operation of law
immediately upon the existence of statutorily prescribed conditions, it is not within or
part of a criminal sentence." State v. Thomas, 307 Kan. 733, 750, 415 P.3d 430 (2018).
That same rationale compels the conclusion that KORA registration is not part of a
juvenile offender's sentence.
Any lack of the magistrate judge's authority is immaterial because the duty to
register arises by statute, falls on N.R., and is not part of N.R.'s sentence. N.R.'s
adjudication of rape, a severity level 1 offense if committed by an adult, triggered his
duty to register. Because N.R.'s registration requirement was not a part of his sentence
but arose out of his adjudication, the magistrate did not err by telling N.R. about his
statutory duty to register. Under K.S.A. 2018 Supp. 20-302b(a)(6), the magistrate judge
had jurisdiction to hear N.R.'s case. After adjudicating N.R. as a juvenile offender, the
magistrate judge sentenced N.R. to probation with an underlying term of incarceration,
according to the provisions of the juvenile code. N.R.'s sentence is unaffected by his duty
17
to register as K.S.A. 2018 Supp. 22-4906(h) requires. By telling N.R. about his duty to
register, the magistrate judge neither caused the court to lose jurisdiction nor imposed an
illegal sentence.
Affirmed.
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