1 ` IN THE SUPREME COURT OF THE STATE OF KANSAS

N o s

. 107,114 107,115

S TATE OF K ANSAS , Appell ant/Cross

- appellee
,

v

.
W ILLIE J. S CUDERI , Appell ee/Cross

- appellant

.

SYLLABUS BY THE COUR T

1. The legislature intended the Kansas Offender Registration Act (KORA) to be civil and nonpunitive for all classes of offenders.

2. Because the legislature intended KORA to be a regulatory scheme that is civil and nonpunitive, only the clearest proof will suffice to override legislative intent and
transform what has been denominated a civil remedy into a criminal penalty.

3. Charging documents do not bestow or confer subject matter jurisdiction on state courts to adjudicate criminal cases; the Kansas Constitution does.

4. Charging document sufficiency is a question of law subject to de novo review.2

5. Charging documents need only show that a case has been filed in the correct court, e.g., the district court rather than municipal court; show that the court has territorial jurisdiction over the crime alleg ed; and allege facts that, if proved beyond a reasonable doubt, would constitute a Kansas crime committed by the defendant.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 19, 2013

. Appeal from Reno District C ourt; T RI SH R OSE , judge. Opinion filed October 27, 2017

. Jud gment of the Court of Appeals affirming the district court is affirmed on the issues subject to review

. Judgment of the
district court is affirmed

.

Keith E. Schroeder
, district attorney, Stephen D. Maxwe ll , senior assistant district attorney, and
Derek Schmidt , attorney general, were on the briefs for appellant /cross

- appellee

.

Patrick H. Dunn
, of Kansas Appellate Defender Office
, was on the briefs for appellee /cross

appellant

.

The opinion of the court was delivered by

B ILES , J.: Willie J. Scuderi seeks review of the decision by a panel of the Court of Appeals affirming two convictions and sentences for failure to register as required by the Kansas Offender Registration Act, K.S.A. 22

- 4901 et seq

. He a rgues the panel erred because (1) the registration requirements are e x p ost f acto punishment for a drug offense he committed before registration was required for such offenses; (2) his sentences were imposed in violation of the Sixth and Fourteenth Amendme nts to the United States Constitution because they were calculated using his criminal history, which was not submitted to a jury and proved beyond a reasonable doubt; and (3) the complaint initiating one of the convictions was deficient because it failed t o allege he resided in the county where the State alleged he failed to register. We affirm.3

We hold that t he panel properly rejected Scuderi's ex post facto and criminal history score claims. See State v. Shaylor
, 306 Kan. 1049, 1051

- 52, 400 P.3d 177 (20 17) (holding defendant failed to demonstrate retroactive imposition of registration requirements for drug offense was punishment as required to prevail on e x p ost f acto claim); State v. Ivory , 273 Kan. 44, 45

- 48, 41 P.3d 781 (2002) (holding Sixth and
Fourteen th Amendments do not require jury findings on criminal history used to calculate sentence). We also affirm the panel's outcome on the defective complaint issue, although we do so using the analysis in State v. Sayle r , 306 Kan. ___, ___ P.3d ___ (No. 110,048, this day decided) , slip op. at 6

- 7 ( holding charging documents do not bestow or confer subject matter jurisdiction on state courts to adjudicate criminal cases and further holding similarly worded charging document alleged facts that if prove d beyond a reasonable doubt would constitute KORA violation)

.

F ACTUAL AND P ROCEDURAL B ACKGROUND

In 2002, Scuderi was convicted of possession of methamphetamine with intent to sell, a violation of K.S.A. 65

- 4161. In 2010, the State charged Scuderi in two cases with failing to register under the Kansas Offender Registration Act, K.S.A. 22

- 4901 et seq

.

Scuderi moved to dismiss the complaints because the prosecutions violated the Ex Post Facto Clause of the United States Constitution. He argued the registration requirement, which did not exist at the time of his original offense, retroactively
increased the offe nse's punishment. He cited the in

- person reporting requirements and the fees associated with registration.

During arguments on the motions, Scuderi's counsel "conced[ e d] that the courts
have held generally that the duty to register . . . is not punitive a nd not a violation of ex post facto." But counsel contended the prior cases did not address the $20 registration4

fee, which counsel "would consider a fine . . . ." Nor, he argued, did they consider the change from mail to in

- person registration. Scuderi pr esented no evidence to support his arguments.

The district court denied the motions, reasoning that our appellate courts had
determined the registration requirements of the Kansas Offender Registration Act are not punishment and therefore do not violate t he E x P ost F a cto C lause of the Constitution.
The court cited State v. Evans , 44 Kan. App. 2d 945, 242 P.3d 220 (2010).

At a consolidated jury trial, Scuderi stipulated that in "February through April 2010, [he] was a person convicted of a crime that requi red [him] to register in writing to
the sheri ff's office in the county of his residence . . . and . . . prior to February 2010, knew of his requirement to so register." His defense was that the State did not prove he lived in Reno County, as necessary to t rigger the requirement that he register there. The jury
convicted on both charges.

Scuderi moved to arrest judgment in one of his cases (10CR241) because the complaint was not consistent with the relevant KORA provision. He advanced two issues regarding the complaint: (1) the alleged violation occurred after he was released from the county detention center, which was not an element of the offense; and (2) the complaint
was silent on the requirement that the offender must reside or be temporarily domicile d in the county for more than 10 days. The omission , he argued, created a jurisdictional defect
under State v. Hall , 246 Kan. 728, 793 P.2d 737 (1990), overruled by State v. Dunn , 304
Kan. 773 , 375 P.3d 332 (2016). While both case numbers are in the motion's caption, the motion itself referred only to 10CR241.

At sentencing, the court addressed Scuderi's posttrial motions on 10CR241. Scuderi's counsel said she would stand on her motion for judgment of acqui ttal or new5

trial and that she "also ask[ed] the Court to consider [the motion to] arrest judgment and cit[ed] to the arguments contained therein and ask[ed] that the court grant that as well." The court responded, " [W] e're dealing strictly with 10 CR 241, although, if you want to adopt arguments in the other cases at this point, we can do that."

But before Scuderi's counsel could respond
, the court solicited arguments from the
State and i mmediately after th at ruled, "Okay. I did hear the evidence and do f ind the jury as the factfinder could find the defendant guilty beyond a reasonable doubt, which they did, based on the evidence and I will overrule the motions." The record contains no further comment from Scuderi's counsel about the motion to arrest judgm ent.

After sentencing Scuderi in 10CR241, the district court turned to Scuderi's other

case ( 10CR400 ) . The district court noted "a motion for judgment of acquittal or in alternative for new trial on that also." Scuderi's counsel told the court, "Judge, ag ain, I adopt my previous arguments with that case." The court denied "the motion for judgment of acquittal or for new trial."

The district court granted Scuderi's request for downward durational departures
and sentenced him to concurrent 65

- month prison t erms for the KORA violations. The State appealed the sentencing departure
, and Scuderi cross

- appealed his convictions and sentencing.

The State argued there were no substantial and compelling reasons to support the durational departures. Scuderi claimed : (1) the registration requirement from which the
convictions arose violated the Ex Post Facto Clause ; (2) his sentences violated Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because they were calculated using his prior c riminal history, which was not proved to a jury beyond a reasonable doubt; and (3) the district court lacked jurisdiction to enter a judgment in the6

10CR400

— not 10CR241

— because the complaint failed to charge a crime. A Court of Appeals panel affirmed the j udgments. State v. Scuderi , No. 107,114, 2013 WL 3791614, at *10 (Kan. App. 2013) (unpublished opinion ).

The panel held the retroactively imposed KORA requirement was not an ex post
facto law. It reasoned that because State v. Myers , 260 Kan. 669, 923 P.2 d 1024 (1996), established that offender registration is not "punishment," a retroactive change in the requirements does not violate the Ex Post Facto C lause. 2013 WL 3791614, at *6 (citing
State v. Evans , 44 Kan. App. 2d 945, 242 P.3d 220 [2010]). Moreove r, it reasoned, there
is no ex post facto violation, "'[s]o long as the actual criminal violation for which the defendant is being charged occurred after the effective date of the statute providing punishment for the violation . . . .'" 2013 WL 3791614, at *6 (quoting State v. Arm brust
, 274 Kan. 1089, Syl. ¶ 3, 59 P.3d 1000 [2002]). The panel also asserted Scuderi's stipulation that the Act applied to him "preclude[d] any complaint . . . about the retroactive registration requirements . . ." because no relief is afforded to a party from his or her own "strategic choice at trial [ that ] has adverse consequences . . . ." 2013 WL 3791615, at *6.

The panel also affirmed Scuderi's sentences. It held the Sixth and Fourteenth Amendments to the United States Constitution, as interpreted by A pprendi
, 530 U.S. 466, did not require Scuderi's criminal history used to calculate the sentences to be submitted to a jury and proved beyond a reasonable doubt. 2013 WL 3791614 , at * 7 (citing State v. Ivory , 273 Kan. 44, 41 P.3d 871 [2002], reaff'd by St ate v. Bogguess , 293 Kan. 743 , 268
P.3d 481 [2012]). And it held there were substantial and compelling reasons to support the downward durational departure. 2013 WL 3791614, at *9.

Finally, the panel rejected Scuderi's jurisdictional argument, applying th e analytical framework for reviewing defective complaint issues raised for the first time on7

appeal as set out in Hall . The panel characterized the claim as raised for the first time on appeal because Scuderi's appellate argument focused only on 10CR400, w hile his motion to arrest judgment was advance d in 1 0CR241. 2013 WL 3791614, at *3.

The panel concluded K.S.A. 22

- 4904 required the charging document to allege "(1) Scuderi was required to register with the Sheriff of Reno Count y , Kansas, having
resided o r established temporary residence in Reno County for more than 10 days

. . . ; and (2) Scuderi failed to register with the Sheriff of Reno County during the month of April [2010]." 2013 WL 3791614, at *4. The panel then noted that while Scuderi argued the

co mplaint in 10CR400 failed to "allege the triggering element for registration . . . and . . . that he [lived] in Reno County," he did not brief how the omission affected his case in any of the three ways that could yield a jurisdictional defect under Hall

. 2013 WL 3791614, at *4. But the panel emphasized it was not relying on Scuderi's trial court stipulation in its ruling. 2013 WL 3791614, at *4

- 5

.

Ultimately, the panel held the district court had jurisdiction in 10CR400. It
concluded Scuderi failed to show how the omission impaired his right to a fair trial or the preparation of his defense because he stipulate d he was aware of the regist ration requirement, choosing to argu e instead that he did not reside in Reno County. Moreover, the panel concluded the record did not indicate the conviction in 10CR400 affected a subsequent prosecution.

Scuderi petitioned for review of the panel's decision on each of the three issues he
raised in his cross

- appeal. The State did not seek our review on the se ntencing departure
issue

. We granted review

.

B ut while the matter was pending, we decided Dunn , which mad e significant changes to the law on charging document sufficiency, the effect of deficient charging8

documents, and appellate review of deficient charg ing document claims. Among these,
Dunn held charging document sufficiency does not implicate subject matter jurisdiction
of state courts in criminal cases. 304 Kan. at 811

- 12

. In supplemental brief ing, Scuderi argued Hall must continue to apply because it was law at the time he filed his motion to arrest judgment.

Jurisdiction is proper. K.S.A. 20

- 3018(b) (petition for review of Court of Appeals decision); K.S.A. 60

- 2101(b) (providing S upreme C ourt jurisdiction over cases subject to
review under K.S.A. 20

- 3018).

We will address in greater detail only the ex post facto claim and the defective complaint allegation. This court has repeatedly rejected Apprendi c hallenges to the use of criminal history score s , and we need not discuss Scuderi's further

. See S haylor
, 306 Kan.
at 1051 ; s ee also State v. Johnson , 304 Kan. 924, 956, 376 P.3d 70 (2016)

.

E X P OST F ACTO C HALLENGE

Scuderi argues his convictions violate the Ex Post Facto Clause of the United States Constitution because when the legislature imposed registration requirements on him after he committed the registrable drug offense, it retroactively increased the punishment for that crime. This argument is foreclosed by Shaylor

. See 306 Kan. at 1052

.

In Shaylor , the court rejected the same ex post facto claim. The court reasoned that the defendant must establish the KORA requirements constitute "punishment" to prevail
on the claim. 306 Kan. at 1052 . But because "the legislature's intent in enacting KORA was to create a nonpunitive civil regulatory scheme [ , ] . . . to overcome that intent, only the 'clearest proof' concerning the effects of KORA on the class of drug or violent
offenders would suffice." 306 Kan. at 1052 (citing State v. Meredith
, 306 Kan. 906, 911

-9

12, 399 P.3d 859 [2017]). The defendant's ar gument that the registration requirement was "punishment" consisted entirely of "mention[ing], without further factual development, only three statutory factors: (1) informing authorities of changes in domicile; (2) in

person reporting four times each yea r to verify [defendant's] registration information; and (3) paying a $20 registration fee each time [defendant] reports." 306 Kan. at 1052

.

In the district court, Scuderi similarly contended without factual development that the registration fees and in

- pe rson reporting requirements constitute punishment. His appellate arguments identify additional facets he believes make the requirements "punishment"

— annual driver's license or identification card renewal and the offender designation on the document

. But h is arguments rely on the court's now

- overruled
decision in Doe v. Thompson , 304 Kan. 291, 373 P.3d 750 (2016), holding lifetime registration for sex offenders was punishment, and the dissenting opinion in the decision overruling it, State v. Petersen

- Beard , 304 Kan. 192, 377 P.3d 1127 (2016).

Scuderi also argues registration impact s drug offenders differently than sex offenders by making reintegration into society more difficult . He rel ies on testimony presented to the legislature when it was considering e xpand ing the Act to include drug
offenders. B ut Scuderi failed to create a factual record in support of his arguments

.

As we did in Shaylor
, we conclude Scuderi failed to demonstrate KORA's punitive effects override the legislature's intent that the requirements be nonpunitive . His ex post
f acto claim fails because he did not demonstrate the requirements are punishment.

S UFFICIENCY OF THE C HARGING D OCUMENT

Scud eri argues the 10CR400 conviction must be reversed because the complaint did not allege facts establishing his duty to register in Reno County. But the panel held10

Scuderi raised the claim for the first time on appeal and therefore applied the more
burdenso me of the two defective complaint tests. Although there is now only one test, we first consider from a preservation perspective the impact of the panel's ruling that Scuderi is challenging for the first time on appeal the complaint in 10CR400

.

Standard of Review

/Preservation

The panel analyzed Scuderi's sufficiency

- of

- the

- complaint argument using the bifurcated standard of review applicable under Kansas law at the time of its decision.
Under th at standard, if a defendant raised a timely challenge to a cha rging document's sufficiency in the district court, the conviction would be reversed on appeal if the document was "'so defective that it [did] not, by any reasonable construction, charge an offense for which the defendant [was] convicted.'" Dunn , 304 Kan. at 806 (quoting Hall
, 246 Kan. at 763). But when the defendant raised the claim for the first time on appeal, the claim would only "'be allowed'" if the defendant could establish the "'claimed defect . . . (a) prejudiced the defendant in the preparation o f his or her defense; (b) impaired in any way defendant's ability to plead the conviction in any subsequent prosecution; or (c) limited in any way the defendant's substantial rights to a fair trial . . . . ' " 304 Kan. at 806 (quoting Hall , 246 Kan. at 765). The panel decided the issue on the latter standard.

Scuderi argues he was entitled to have his case decided under the Hall paradigm
, rather than application of Dunn . This is wrong. "[T]he general rule in Kansas is that an overruling decision is applied r etroactively to all similar cases pending as of the date of the overruling decision, regardless of when the cause of action accrued." State v. Waterberry , 248 Kan. 169, 172, 804 P.2d 1000 (1991) (holding Hall 's new rule regarding appellate review of suffic iency

- of

- information claims applied to all cases pending in state

courts

— trial and appellate

— at time of decision). See also State v. Mitchell , 297 Kan. 118, 124

- 25, 298 P.3d 349 (2013) ("The general rule . . . is that a change in the law acts11

prospectively, applying only ' to all cases, state or federal
, pending on direct review or not yet final. ' ").

Scuderi argues his bid to apply Hall is bols tered by Hall 's declaration that the new rule in that case would apply only prospectively to prosecutions initiated after the date of the opinion. But Waterberry modified that portion of Hall and held the rule would apply in all cases pending when Hall was filed. Scuderi offers no other authority for why Dunn should not apply. Dunn applies , which changes the standard of review and preservation questions.

W e must now address the effect of the panel's ruling that Scuderi is challenging the 10CR400 complaint for the first time on appeal. Under Dunn , whether the complaint was defective is a question of law subject to de novo review. 304 Kan. at 819.

"Charging documents do not bestow or confer subject matter jurisdiction on state courts to adjudicate criminal cases; the Kansas Constitution does. Charging documents only need to show that a case has been filed in the correct court . . . ; show that the court has territorial jurisdiction over the crime alleged; and allege facts that, if proved beyond a
reasonable doubt, would constitute a Kansas crime committed by the defendant." 304
Kan. at 811.

Ordinarily a party wanting to pursue an issue on appeal must have preserved that
issue in the court below. 304 Kan. at 817. If not, the defendant must demonstrate an

exce ption to the usual rule applies. 304 Kan. at 818

- 19. "The very purpose of such a rule is to enable the court to consider [the claim] below

— to prevent error

— to avoid appeal."
Grant v. United States , 291 F.2d 746 , 748 (9th Cir. 1961). See also State v. Levy , 292 Kan. 379, 253 P.3d 341 (2011) (noting purpose of requiring contemporaneous objection to preserve evidentiary claim for appeal is to allow trial court opportunity to rule on issue).12

Scuderi argues he preserved his challenge to the 10CR400 complaint be cause "[t]he district court allowed counsel to adopt . . . in both cases" the arguments contained in his motion to arrest judgment. But this skews the facts by ignoring that he never accepted the district court's offer, despite being aware the district cou rt believed the motion only referred to 10CR241.

Nonetheless, we hold Scuderi preserved the defective complaint issue for appellate
review. Scuderi raises the same basic issue he presented to the district court. And i n responding to Scuderi's cross

- appeal
, which clearly challenged the complaint in only
10CR400 , the State seem ingly accept s this by stating Scuderi "did not directly challenge the sufficiency and wording of the [complaint] . . . until he filed a Motion for Arrest of Judgment . . . ." More n ota bly, the State did not respond to Scuderi's supplemental brief with a preservation argument. Moreover, we discern some ambiguity in the record based on the timing of the district court's offer and the manner in which it bifurcated arguments and sentencing on the posttrial motions in the two cases

.
Sufficiency of the Complaint in Case 10CR400

Scuderi argues the complaint was insufficient because it failed to allege he had resided or been temporarily domiciled in Reno County for more than 10 days. The compl aint alleged :

" [O] n or about the 30th day of April, 2010, in said County of Reno and State of Kansas, one Willie J. Scuderi then and there being, did then and there, unlawfully, feloniously and willfully . . . intentionally fail to register in writing wit h the Sheriff of Reno County, Kansas for the month of April 2010, as required under the Kansas Offender Registration Act, K.S.A. 22

- 4901 et seq., as amended, based on his previous conviction of sale of a controlled substance in Sedgwick County."13

These allegations are substantively identical to those challenged on the same grounds in Sayler . Accordingly, Sayler controls the outcome here

. In Sayler , we held:

" [A] 'charging document should be regarded as sufficient . . . when it has alleged facts that would establish the defendant's commission of a crime recognized in Kansas.' [ Dunn ]
304 Kan. at 811

- 12. '[T]he facts alleged, rather than the legal elements regurgitated, determine whether the charge is sufficient under the statute defining the crime. ' 304 Kan. at 820. Since all crimes are defined by statute, our inquiry is informed by statute. We compare '[t]he legislature's definition of the crime charged . . . to the State's factual allegations of the defendant's intention and action. If those factu al allegations, proved beyond a reasonable doubt, would justify a verdict of guilty, then the charging document
is statutorily sufficient.' 304 Kan. at 812.

"K.S.A. 2011 Supp. 22

- 4903 provides an offender who fails ' to comply with any and all provisions o f [KORA] , including any and all duties set forth in K.S.A. 22

- 4905 through
K.S.A. 22

- 4907 ' is guilty , '[u]pon a third or subsequent conviction, [ of ] a severity level 3, person felony.' K.S.A. 201 1 Supp. 22

- 4905(b) requires sex offenders to ' report in perso n four times each year to the registering law enforcement agency in the county or location of jurisdiction in which the offender resides, maintains employment or is attending a
school .'

" The complaint here alleged Sayler had been convicted of a crime for which KORA compliance would be required and that Sayler failed to register with the county sheriff's office at the statutorily appointed time and the date registration was required. These facts are sufficient to constitute the crime of violating KORA's provisions. The basis for the State's allegation that Sayler breached his KORA obligations in a given county can be addressed before trial if there is a question. See, e.g., K.S.A. 22

- 3201(f) (' When a complaint

. . . charges a crime but fails to specify th e particulars of the crime sufficiently to enable the defendant to prepare a defense the court may, on written motion of the defendant, require the prosecuting attorney to furnish the defendant with a bill of particulars

. ').14 "We further note Sayler could not successfully challenge his conviction by asserting the third type of Dunn error and arguing the charging document failed to impart notice that the State believed he was required to register in Kingman County based on his residence there. Sayler stipula ted he had a duty to register and based his defense on his subjective intent in failing to do so. As Sayler conceded at oral argument, in this particular case he could not have been prejudiced because he did not dispute his statutory duty to register in Ki ngman County." Slip op. at 7

- 8.

Similarly, Scuderi stipulated he was required to register and his defense turned on whether he resided in Reno County, just as it would have if the charging document had been more precisely worded. Moreover, in Scuderi's ca se, since the trials were
consolidated
, the complaint in 10CR241 put Scuderi's residence in issue at the trial by alleging Scuderi had "com[e] into Reno county to reside or establish temporary residency" as of February 2010.

We agree with the panel's outc ome on this issue, although our reasons differ because the panel did not have the benefit of Dunn

.

Affirmed on the issues subject to review.

* * *

B EIER , J ., dissenting: Consistent with my votes in State v. Meredith , 306 Kan. 906, 399 P.3d 859 (2017); and State v. Huey , 306 Kan. 1005, 399 P.3d 211 (2017), I respectfully dissent from the majority's decision in this case on the ex post facto challenge

.15

"Kansas' requirement of offender registration

— especially in its modern, maximally invasive, ma ximally pervasive, and infinitely more public incarnation

— is punishment, certainly in effect if not in intent. It is no less so for a drug offender than for a sex
offender or a violent offender. It is no less so when the Ex Post Facto Clause is before us

t han when Apprendi or the Eighth Amendment is before us." Meredith , 306 Kan. at 914, (Beier, J., dissenting).

R OSEN and J OHNSON , JJ. , join the foregoing dissent.