State v. Richardson, 107786

Background

Richardson was convicted of sale of cocaine in 2003; in 2007 Kansas expanded KORA to include certain drug offenders and registration became applicable to his offense.
Richardson failed to register in 2011 and pled guilty to two registration violations; before sentencing he filed pro se motions to withdraw his pleas and to obtain new counsel, alleging retroactive application of KORA violated the Ex Post Facto Clause.
His appointed counsel acknowledged not advising him about the 2007 change; the district court treated the filings as an ex post facto claim, denied plea withdrawal and refused to appoint new counsel, and proceeded to sentence (with a downward durational departure to 30 months).
The Court of Appeals affirmed, concluding the ex post facto claim lacked merit and counsel was not ineffective for failing to raise a nonmeritorious argument.
The Kansas Supreme Court granted review and affirmed, holding Richardson failed to meet the heavy "clearest proof" burden required to show KORA's effects on drug offenders are punitive distinct from sex offenders, so the legislature's nonpunitive intent controls.

Issues

Issue	Richardson's Argument	State's Argument	Held
Whether retroactive application of KORA to drug offenders violates the Ex Post Facto Clause	KORA's registration requirements are punitive as applied to drug offenders and thus cannot be applied retroactively	KORA is a civil, regulatory scheme; prior Kansas precedent and deference to legislative intent apply	Denied — Richardson failed to show by the "clearest proof" that KORA's effects on drug offenders are punitive distinct from sex offenders; Ex Post Facto challenge fails
Whether counsel was ineffective for failing to advise Richardson about an ex post facto defense	Counsel's failure to advise on the (allegedly viable) ex post facto claim was deficient and prejudicial	Counsel not ineffective for failing to raise an argument lacking merit	Denied — underlying ex post facto claim lacks merit, so no ineffective assistance shown
Whether the district court abused discretion by denying motion to withdraw plea	Plea withdrawal warranted for good cause because of improper legal advice on a substantial constitutional claim	District court properly found no good-cause showing and applied abuse-of-discretion standard	Denied — record insufficient to show abuse of discretion; plea withdrawal properly denied
Whether Richardson was entitled to new counsel based on alleged counsel error	Richardson sought new counsel due to alleged misinformation and dissatisfaction	New counsel requires conflict, irreconcilable disagreement, or breakdown in communication; poor legal advice alone insufficient	Denied — no conflict or breakdown shown; request properly construed and disposed of

Key Cases Cited

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (sets out intent-effects test for determining whether a law is punitive)
Smith v. Doe, 538 U.S. 84 (2003) (requires "clearest proof" to override legislative intent when characterizing a civil scheme as punitive)
State v. Petersen-Beard, 304 Kan. 192 (2016) (Kansas held lifetime sex-offender registration is nonpunitive under Mendoza-Martinez factors)
State v. Meredith, 306 Kan. 906 (2017) (declined to find KORA punitive as applied to drug offenders where record was insufficient)
State v. Reed, 306 Kan. 899 (2017) (extended Petersen-Beard to ex post facto challenges to KORA)
State v. Myers, 260 Kan. 669 (1996) (concluded KORA was intended as a nonpunitive civil regulatory scheme)