Case Number: 104,295

Judge: Per Curiam

Court: SUPREME COURT OF THE STATE OF KANSAS

Plaintiff's Attorney: Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general

Defendant's Attorney: Heather Cessna, of Kansas Appellate Defender Office, and Rachel L. Pickering

Description: Steven Howard Weis was convicted of two counts of reckless aggravated battery and ordered to register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., after a district court judge found Weis used a deadly weapon to commit those offenses. For the first time on appeal,
Weis argues his registration requirement violates Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because the fact was not submitted to a jury and proved beyond a reasonable doubt. The persuasiveness of that challenge turns on whether KORA's requirements constitute punishment for his crimes. We affirm the offender registration order.

The outcome of Weis' appeal is controlled by State v. Meredith, 306 Kan. __, __ P.3d __ (No. 110,520, filed August 4, 2017), slip op. at 10, and State v. Huey, 306 Kan. __, __ P.3d __ (No. 109,690, filed August 11, 2017). Like the appellants in those cases, Weis offers no fact-based arguments on the factors we must consider in determining whether the Act's effects render it punitive as applied to violent offenders because he raises his Apprendi challenge—and, consequently, his argument that the registration requirements are punishment—for the first time on appeal. See Meredith, 306 Kan. at __, slip op. at 10 ("[A]nalysis of the [Kennedy v.] Mendoza-Martinez[, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963),] factors requires a robust record because the effects prong of the applicable legal test obliges an appellate court to premise its legal conclusion on at least some fact-intensive questions—i.e., the legitimacy of the public safety interests at stake, the effectiveness of the alternative purpose to promote public safety, etc.").

Without a factual record, we cannot conclude that KORA's registration requirements imposed on violent offenders are so punitive as to override the legislature's intent that KORA be a civil remedy. Therefore, Weis has not demonstrated, as he must, that the registration requirements constitute punishment. Because the registration requirements did not increase Weis' punishment under the law of this case, it was not necessary that his use of a deadly weapon be found beyond a reasonable doubt by a jury.

Outcome: We affirm the lower courts' judgment on the issue subject to our review.

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Defendant's Experts:

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