State v. Simmons, 405 P.3d 1190

Background

In 2005 Ami Latrice Simmons pled guilty to possession with intent to distribute and selling cocaine; sentenced to 30 months and paroled in October 2008.
While Simmons was incarcerated the Kansas Legislature amended the Kansas Offender Registration Act (KORA) to require drug offenders to register; Simmons was later notified by an executive agency and began registering.
In 2011 the State charged Simmons with failing to register; at trial on stipulated facts she was found guilty and ordered to pay a $200 DNA database fee.
Simmons appealed asserting (1) retroactive application of KORA violates the Ex Post Facto Clause, (2) the executive branch unlawfully modified her sentence by ordering registration, and (3) the court erred in imposing the DNA fee.
The Court of Appeals upheld the district court; the Kansas Supreme Court granted review and affirmed.

Issues

Issue	Plaintiff's Argument (Simmons)	Defendant's Argument (State)	Held
Whether retroactive application of KORA to drug offenders violates Ex Post Facto Clause	KORA as applied to drug offenders is punitive and therefore retroactive application is unconstitutional	KORA is a nonpunitive civil regulatory scheme; prior Kansas precedent and legislative intent support nonpunitive classification	Affirmed: Simmons failed to meet the "clearest proof" requirement showing drug offenders are sufficiently distinguishable from sex offenders; record too undeveloped to show punitive effect
Whether the executive branch unlawfully modified Simmons’ 2005 sentence by ordering her to register	Registration arose from and was part of the original sentence; executive action changed her sentence without judicial amendment	Registration requirement arose by statute after sentencing and was not imposed by the sentencing court; registration is not part of the sentence	Affirmed: Factually, sentencing was not modified because the court did not pronounce a registration obligation at sentencing; executive branch cannot modify a court's sentence
Whether the district court erred in imposing the $200 DNA database fee	Simmons argued the KBI regulations required collection while incarcerated so her DNA should already be on file and fee should not be imposed	Statute requires the court impose the fee unless defendant proves prior fee payment and that no DNA sample was submitted for the current conviction	Affirmed: Simmons did not present record proof she paid the fee previously or that no sample was submitted; burden on defendant to show exemption

Key Cases Cited

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (sets out intent-effects test to determine whether civil scheme is punitive)
Smith v. Doe, 538 U.S. 84 (2003) ("only the clearest proof" can transform legislative intent into punitive finding)
State v. Petersen-Beard, 304 Kan. 192 (2016) (Kansas analysis concluding lifetime sex-offender registration is nonpunitive for some constitutional claims)
State v. Meredith, 306 Kan. 906 (2017) (declined to find KORA punitive for drug offenders on an undeveloped record; effects inquiry requires a robust factual record)
State v. Royse, 252 Kan. 394 (1993) (definition of criminal sentence and that judgment/sentence is effective when pronounced in open court)
State v. Jackson, 291 Kan. 34 (2010) (sentencing occurs upon pronouncement from the bench)
State v. Sisson, 302 Kan. 123 (2015) (appellant bears burden to designate record demonstrating error)