State v. CookState v. Cook
- Reporters:
- , ,
- Before:
- Rosen
This appeal by the State of Kansas comes before the
court on transfer from the Court of Appeals. The district court dismissed a charge of failure to register as a sex offender,
An understanding of the chronology of the events leading up to this apрeal is critical to resolving the question before us. On August 23, 1999, Cook was convicted of aggravated indecent solicitation of a child. Upon his release from incarceration on September 2, 2005, he completed a sex offender registration form, listing an address at 1604 North 44th Street, Kansas City, Kansas. He filed no additional registration forms after completing the initial form. On December 30, 2005, he was arrested for a domestic battery occurring at 208 New Jersey Street, Kansas City, Kansas. On January 3, 2006, the Kansas Bureau of Investigation sent Cook a registered letter at the address he provided on the registration form. The letter was returned on January 9, 2006, marked “return to sender” and “moved left no address.”
Effective July 1, 2006, the Kansas Legislature changed violation of the registration statute from a sevеrity-level 10 nonperson felony to a severity level 5 person felony. L. 2006, ch. 212, sec. 20.
On October 26, 2006, Wyandotte County Sheriff s deputies attempted to find Cook at both the North 44th Street and the New Jersey Street addresses. Neighbors told the deputies that Cook no longer lived at either address. On October 31, 2006, the State submitted an affidavit requesting an arrest warrant, and on November 21, 2006, the State filed an informatiоn charging Cook with one count of failing to register his address change with the Wyandotte County Sheriff s Department, in violation of
Cook filed a motion to dismiss or, in the alternative, to quash the information and warrant. The district court entered an order finding that
ANALYSIS
Standard of Review
When the application of a statute is chаllenged on constitutional grounds, this
The Statutes
The Kansas Legislature created the Habitual Sex Offender Registration Act in 1993. L. 1993, ch. 253, secs. 17-20, originally codified as
In 2006, the legislature amended the Act in two ways that are significant to this appeal. The legislature raised the severity level to a severity level 5 person felony.
“Any violation of any provision of [the Kansas Offender Registration Act], including a violation of the duties set forth inK.S.A. 22-4904 throughK.S.A. 22-4907, and amendments thereto, which continues for more than 30 consecutive days shall, upon the 31st consecutive day, constitute a new and separate offense and shall continue to constitute a new and separate offense upon completion of evеry 30 days thereafter for as long as the offense continues.”K.S.A. 2006 Supp. 22-4903(a) .
These amendments became effective on July 1, 2006. L. 2006, ch. 212, secs. 20, 26.
In both the earlier and amended versions of the Act, a person subject to the Act was required to provide written notification of any change in residential address within 10 days of the address change. See
Constitutional Challenges to the Kansas Offender Registration Act
This appeal is the latest of a series of cases in which parties have challenged the constitutionality of the Kansas Offender Registration Act as it applied to them.
In Myers, 260 Kan. 669, this court ruled that the offender registration act is remedial in nature and does not violate the constitutional prohibition against ex post facto laws. The court found that the Act’s public-disclosure requirements, however, are punitive and may not be applied retroactively. 260 Kan. at 671, 699-70. In State v. Hemby, 264 Kan. 542, 554-56, 957 P.2d 428 (1998), the court considered whether application of the Act to offenders who committed their crimes before the effective date of the Act violated the ex post facto prohibition. The court reaffirmed the Myers holdings that registration is not punitive and creates no ex post facto conflict. In State v. Scott, 265 Kan. 1, Syl. ¶ 4,961 P.2d 667 (1998), and State v. Snelling, 266 Kan. 986, Syl. ¶ 1, 975 P.2d 259 (1999), the court upheld the Act against constitutional challenges relating to cruel and unusual punishment. In Wilkinson, 269 Kan. 603, Syl. ¶ ¶ 8, 9, this court found no due process violation in a registrаtion requirement that does not allow a hearing to determine the degree of threat posed by the defendant.
In
State v. Armbrust,
274 Kan. 1089, 59 P.3d 1000 (2002), we considered a situation in which defendants who failed to register
with law enforcement entities were convicted of underlying sex offenses committed when violating
The Prohibition Against Ex Post Facto Penalties
Cook argued, and the district court agreed, that prosecuting him for a severity level 5 offense violated the prohibition against ex post facto laws.
The United States Constitution provides: “No State shall . . . pass any ... ex post facto Law.”
The framers of the United States Constitution had three purpоses in prohibiting retroactive application of laws. First, they sought to assure that legislative acts give fair warning of their effect and permit individuals to rely on those acts until they are explicitly changed. Second, they sought to restrict governmental power by restraining arbitrary and potentially vindictive legislation. Finally, they sought to uphold the separation of powers by confining the legislature to penal decisions with prospective effect and the judiciary and executive to applications of existing penal laws. Weaver v. Graham, 450 U.S. 24, 28-29, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981).
“[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. [Citаtions omitted.]” Weaver, 450 U.S. at 29.
Not only the retroactive criminalization of an act but also the retroactive increase in the severity of punishment may violate ex post facto prohibitions. “The enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty” after the fact. Calder v. Bull, 3 U.S. (3 Dall.) 386, 397, 1 L. Ed. 648 (1798). “An ex post facto law is one which rеnders an act punishable in a manner in which it was not punishable when it was committed.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L. Ed. 162 (1810). “Critical to relief under the Ex Post Facto Clause is . . . the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U.S. at 30.
In the present case, if we construe the facts liberally in favor of the State, Cook was in violatiоn of the registration requirement by January 2006, when the KBI letter was returned unopened, and perhaps earlier. On the surface, it appears it would violate the Ex Post Facto Clause to apply a more severe sentence to him than was in effect at the time he first committed the crime of failure to register.
The State argues, however, that the crime of failing to register constitutes a continuing violation — Cook did not complete the crime at a discrete time but continued to commit the crime every day that he failed to comply with the registration statute.
Cases From Other Jurisdictions On Continuing Crimes
We may find guidance in determining whether a crime has a continuing quality from cases in other jurisdictions. These cases have analyzed the issue in light of two considerations — statutes of limitations and the Ex Post Facto Clause, especially with respect to applying federal sentencing guidelines.
In
United States v. Bailey,
444 U.S. 394, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980), the Court considered whether escape from custody
In
United States v. Lennon,
372 F.3d 535 (3d Cir. 2004), the court considered a situation in which the defendant, a foreign national, illegally entered the United States in August 1994. She was convicted of various minor offenses in 1996 and 1998. Immigration officials received an anonymous tip and apprehended her on July 7, 2001. She was indicted for, and pled guilty to, being “found in the United States, having knowingly and unlawfully re-entеred the United States” in violation of
In United States v. Erhart, 415 F.3d 965 (8th Cir. 2004), the defendant was convicted on a variety of fraud rеlated charges, as well as on drug and gun charges. The indictment stated that the crimes occurred “ ‘[f]rom in or about January 1996 to in or about April 2001.’ ” 415 F.3d at 973. The Mandatory Victims Restitution Act (MVRA), on which part of his sentence was based, became effective on April 24, 1996. He argued that application of the Act to his case violated ex post facto prohibitions because the indictment spеcified a date prior to the disadvantageous provisions of the Restitution Act. The court rejected this argument:
“Erhart is not eligible for ex post facto shelter. Erhart conducted his fraudulent business for approximately five years after the MVRA was enacted. He was not prejudiced by a statutory change that occurred after he first committed his crime because he continued to cоmmit the crime for several years after the enactment of the MVRA.” 415 F.3d at 973.
In United States v. Gray, 876 F.2d 1411 (9th Cir. 1989), cert. denied 495 U.S. 930 (1990), the defendant was indicted in July 1986 and was released on an appearance bond on August 7,1986. The defendant elected not to appear for sentencing on June 3, 1987, and he was indicted for failure to appear. He was arrested on December 8, 1987. The Sentencing Guidelines Act applied to crimes initiated before November 1,1987, but not completed until after November 1,1987. The defendant argued that the Guidelines should apply to him because failure to appear is a continuing offense. The court found that failure to appear is a continuing offense because the statute of limitations is tolled for any person fleeing from justice and because a person who fails to apрear for sentencing presents a threat to society analogous to that posed by an escaped prisoner and poses a threat to the integrity and authority of the court. 876 F.2d at 1419.
Application of Ex Post Facto Analysis to Cook
It appears that Cook’s criminal failure to register began in late 2005 or early 2006, when he changed his place of residence without registering his new address. His residence continued to be unknown after the 2006 amendments became law. Although the supporting affidavit made reference to an address change thаt took place before the 2006 amendments became effective, that portion of the affidavit was not the sole basis of the charging instrument. The State did not have the opportunity to present evidence relating to Cook’s addresses and whether he was properly registered after July 1, 2006.
His situation is comparable to that of the fugitive, which was addressed in Bailey, 444 U.S. 394. In Bailey, the Court considerеd the “continuing threat to society” posed by an escaped prisoner, which rendered the crime ongoing in nature. 444 U.S. at 413. In Wilkinson, 269 Kan. at 609, this court found that the registration act was intended to promote public safety and to protect the public from sex offenders, who constitute a class of criminals that is likely to reoffend. The constant danger that Cook posed to the community through his failure to rеgister made any crime that began before the 2006 amendments continue after those amendments.
The increase in the penalty was not, however, the only change that the legislature made to the Kansas Offender Registration Act. The 2006 amendments also made each failure to register over a period of 30 days a new felony. Every 30 days after July 1, 2006, Cook committed a new crime by his failurе to register. Based on an investigation by the Wyandotte County Sheriff s Department in October 2006 (after the amendment became effective) that determined that Cook was not residing at either the North 44th Street or the New Jersey Street addresses, the State charged Cook in November 2006 with a single count of failure to register. A separate investigation took place, and an affidavit and information were filed and proceedings commenced based on conduct that occurred after July 1, 2006. It appears that at the time he was charged in November 2006, Cook may have accumulated four separate violations of the amended registration act, all separate and distinct from any conduct Cook engaged in prior to the enactment of the 2006 amеndments. Thus, we need not consider and may disregard the events that took place before the amendments. This conclusion is consistent with Armbrust, 274 Kan. at 1093 — if the actual crime for which a defendant is being sentenced was committed after the effective date of the new statute, there is no ex post facto violation.
The amendments became effective on July 1, 2006. Citizens are presumed to know that the legislature has made certain conduct illegal. See
Cheek v. United States,
498 U.S. 192, 199, 112 L. Ed. 2d 617, 111 S. Ct. 604 (1991) (every person is presumed to know the law);
State ex rel. Murray v. Palmgren,
231 Kan. 524, 536, 646 P.2d 1091 (1982) (ignorance of law no
excuse
for violating law);
State v. Young,
228 Kan. 355, 360, 614 P.2d 441 (1980) (all persons are presumed
Subjecting Cook to punishment under the new statute would not violate the notice principle articulated in Weaver, that the lack of fair notice and governmental restraint is the critical factor in granting relief under the Ex Post Facto Clause. See 450 U.S. at 30. Under a due process analysis, it is a basic princiрle that a criminal statute must give fair warning that it is criminalizing certain conduct. Rogers v. Tennessee, 532 U.S. 451, 457, 149 L. Ed. 2d 697, 121 S. Ct. 1693 (2001). Cook had fair warning that he was engaging in illegal conduct after the 2006 amendments, and the principles underlying the Ex Post Facto Clause do not apply to protect his failure to register after the amendments became effective.
Cook argues on appeal that it would be unfair for the State to wait to charge someone guilty of a lesser crime until the legislature increases the penalty for that crime. His reasoning would appear to require the State to charge every defendant as soon as it becomes aware of criminal activity. If a sting operation were to turn up evidence that someone was smoking marijuana, the State would not be permitted to wait to аcquire additional evidence showing that the individual was also dealing in heroin. In this instance, it does not violate principles of fairness for the State to delay charging an individual who continues to commit a crime or commits new crimes over a period of many months.
We find no violation of ex post facto prohibitions. The order of the district court dismissing the charge is reversed. The case is remanded to the district court to reinstate the charge of failure to register as a sex offender pursuant to
Reversed and remanded with directions.