329 P.3d 523
Kan. Ct. App.2014Background
- Simmons appeals a conviction for failing to register as a drug offender; argues retroactive KORA raises Ex Post Facto issue and illegally modifies sentence; also challenges $200 DNA database fee.
- Simmons was convicted in 2005 for possession with intent to distribute and sale of cocaine; at that time KORA did not require drug offender registration.
- In 2007 KORA amended to include drug offenders; Simmons complied with registration until 2011 when charged with failure to register.
- Registered duties arise automatically by operation of law as nonpunitive collateral consequences, not as part of a court-imposed sentence.
- There was no court order requiring Simmons to register at the time of her 2005 sentencing; any obligation to register arose later by statute and administrative processes.
- The district court found Simmons guilty of failing to register; the issues concern whether retroactive registration alters the sentence, ex post facto, and whether a DNA database fee applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is KORA registration part of Simmons' sentence? | Simmons argues retroactive registration modified the sentence. | State contends registration is automatic by operation of law, not a sentence term. | Registration is not part of the sentence; no illegal modification. |
| Does applying the 2007 KORA retroactively violate the Ex Post Facto Clause? | Simmons asserts retroactive registration constitutes punishment. | State argues duty to register is remedial and not punitive. | Ex post facto not violated; Myers controls. |
| Is the $200 DNA database fee proper where Simmons already has DNA on file? | Simmons claims fee is improper since DNA is already on file. | Statute requires fee upon conviction/adjudication regardless of existing DNA on file. | Fee required; Simmons failed to prove payment of prior fee or exemption. |
Key Cases Cited
- Smith v. Doe, 538 U.S. 84 (U.S. 2003) (registration remedial, not punitive; separate prosecution for failure can occur later)
- Myers v. State, 260 Kan. 669 (Kan. 1996) (registration is remedial and not punishment; ex post facto analysis separate from registration duties)
- Mishmash, 295 Kan. 1140 (Kan. 2012) (registration automatic by operation of law; not a sentence modification in Mishmash context)
- Denmark-Wagner, 292 Kan. 870 (Kan. 2011) (lifetime vs 10-year registration; court treatment of registration as not part of sentence)
- Jackson, 291 Kan. 34 (Kan. 2010) (registration as incident of sentencing; court authority to include without altering sentence)