1 IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110, 277
S TATE OF K ANSAS , Appellee
,

v. M ARCUS D. R EED , Appell ant

.

SYLLABUS BY THE COURT

R egistration for sex offenders mandated by the Kansas Offen der Registration Act,
K.S.A. 22

- 4901 et seq. , does not constitute punishment under the Ex Post Facto Clause of
the United States Constitution.

Review of the judgment of the Court of Appeals in an unpublished opinion filed May 8 , 201 5

. Appeal from Sedgwick D istrict C ourt; J OHN J. K ISNER , J R

. , judge . Opinion filed August 4 , 20 17. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Carol Longenecker Schmidt
, of Kansas Appellate Defender Office , was on the briefs for appellant.

Matt J. Maloney
, assistant district attorney, Marc Bennett , district attorney, and Derek Schmidt
, attorney general, w ere on the brief for appellee.2

The opinion of the court was delivered by

S TEGALL , J.: At the time Marcus D. Reed was convicted of aggravated indecent liberties with a child, the Kansas Offender Registration Act (KORA), K.S.A. 22

- 4901 et
seq. , requir e d him to register for 10 years. S hortly before Reed's registration period terminated, the Ka nsas Legislature added a provision to KORA tolling the registration period of an offender who was imprisoned or noncompliant with KORA. During the 10 years following his conviction , Reed was noncompliant for at least 4 years and 2 months. As a result, his registration period was extended . During that extended period, Reed
committed two additional offender registration violations.

Reed now contends that the retroactive imposition of this tolling provision violates
the Ex Post Facto Clause of the United States Constitution. If he is correct, the tolling provision could not be applied to him and his registration requirement would have expired prior to his subsequent registration violations. However, b ased on our decision in
State v. Petersen

- Beard , 304 Kan

. 192 , 377 P.3d 1127 (2016), we hold that r egistration for sex offenders mandated by KORA does not constitute punishment under the Ex Post
Facto Clause

. Thus, we find that no ex post facto violation occurred and conclude that the tolling provision retroact ively applies to Reed. As such, w e affirm.

F ACTUAL AND P ROCEDURAL B ACKGROUND

In December 1995, Marcus D. Reed was convicted in Cowley County District
Court of aggravated indecent liberties with a child

. Though the record is unclear about his
sentence, it appears that Reed was placed on probation. As a result of his conviction
, Reed was required to register as a sex offender for 10 years. See K.S.A. 1994 Supp. 22

- 4902(b)(3) (requiring registration for aggravated indecent liberties with a child ); K.S.A.
1 994 Supp. 22

- 4906(a) ( providing for a first offense, an offender must register "for a3

period of 10 years after conviction, or, if confined, for a period of 10 years after paroled, discharged or released"). On appeal, Reed has stipulated that d uring th e 10

- year period following his conviction
, he did not comply with KORA's registration requirements for various periods of time
, totaling about 4 years and 2 months.

Approximately 6 months before Reed's original registration period was set to expire, the K ansas Legislature amended KORA by adding a tolling provision for periods of noncompliance and incarceration

. Effective July 1, 2005, House Bill 2314 added the following language to K.S.A. 22

- 4906 (a ) (1) :

" The ten

- year period shall not apply to any person w hile the person is incarcerated in any jail or correctional facility. The ten

- year registration requirement does not include any time period when any person who is required to register under this act knowingly or willfully fails to comply with the registra tion requirement

. " L. 2005, ch. 202, sec. 1

.

In Augus t 2009, Reed pled guilty to offender registration violations in Sedgwick County District Court that occurred in May and June 2008. In October 2009, t he district court granted Reed 's downward departure motions and sentenced him to 36 months' probation with an underlying 31

- month prison sentence

. Less than 1 year later, the court revoked his probation and imposed the underlying prison sentence.

Reed moved to withdraw his plea in October 2012 , arguing that he was not required to register at the time of the alleged violations. Attached to his motion was an October 2011 order from the Cowley County District Court stating that, as a result of his original conviction, he was required to register for 10 year s

. I t also ordered that "the Defendant be discharged from further registration require ments under [KORA]." (Emphasis added.)4

Based on the Cowley County District Court's order, Reed argued that the Sedgwick County District Court lacked jurisdiction to convict him of failing to register in May and June 2008 because he had no duty to register at that time . He also asserted that if his attorney at the time would have advised him of this issue, he would not have pled guilty.

In June 2013, the Sedgwi ck C ounty District Court held an evidentiary hearing on Reed's motion, during which a n officer for the Offender Registration Unit at the Kansas Bureau of Investigation testified about Reed's periods of noncompliance during the 10

- year period after his initial conviction

. Ree d did not present any evidence, but d efense counsel argued, "It is our position that he did not have to register at the time that he was charged in this county, and the failure of his attorney to pursue that would rise to the grounds give n h ere to manifest injustice." Reed 's counsel made no ex post facto argument.

At the conclusion of the hearing, t he district court denied the motion, finding no manifest injustice occurred and declining to rule on the timeliness of the motion

. Citing
the 4 years and 2 months that Reed did not comply with KORA, the court found that Reed's registration period was extended "until at least December 2009 and probably into the early part of 2010." The court therefore concluded that the May and June 2008

o ffender registration violations fell w ithin the registration period and Reed could not establish manifest injustice permitting him to withdraw his plea.

Thereafter, Reed timely appealed the district court's decision, arguing for the first
time that the retroa ctive application of the tolling provision in K.S.A. 22

- 4906( a ) violates
the Ex Post Facto Clause. Reed concede d that he did not raise this issue below , but he
asked the Court of Appeals to consider the merits of his claim as one presenting only a
determin ative question of law arising on proved or admit ted facts

.5

The Court of Appeals first held that because Reed "made no attempt to justify or explain why this constitutional issue was not raised below[,] . . . . we could decline to
address the issue." State v. Reed
, No. 110,277 , 2015 WL 2342134, at *4 (Kan. App. 2015) (unpublished opinion). But "for the sake of argument," the court held that Reed's
claim failed on the merits because (1) the 2008 version of KORA was nonpunitive and (2) Reed failed to demonstr ate excusable neglect for his untimely motion to withdraw plea

. 2015 WL 2342134, at *7

- 8. We granted Reed's petition for review.

A NALYSIS

In his petition for review, Reed recognizes the general rule that constitutional
issues cannot be raised for the first time on appeal. See State v. Thach , 305 Kan. 72, 81,
378 P.3d 522 (2016) (" We generally decline to hear constitutional arguments raised for the first time on appeal ."). The Court of Appeals followed the general rule and affirmed
the district court's opinion on this ground. An appellate court exercises unlimited review over questions of preservation

. State v. Plummer , 295 Kan. 156, 163, 283 P.3d 202 (2012).

We have recognized three exceptions to the general rule:

"(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the party raising the issue asserts that the district court is right for the wrong reason." State v.
Swint , 302 Ka n. 326, 335, 352 P.3d 1014 (2015)

.
Reed has complied with Supreme Court Rule 6.02 (a)(5) (2017 Kan. S. Ct. R. 34 ) by invoking the first exception. See State v. Williams , 298 Kan. 1075, 1085, 319 P.3d 5286

(2014) (cautioning future litigants to comply with Rule 6.02 ); State v. Godfrey , 301 Kan. 1041, 1044, 350 P.3d 1068 (2015) (declin ing to address the merits of appellant's claim because app ellant failed to explain why it was properly before the court). Since Reed's ex post facto challenge raises only a question of law arising on proved or admitted facts and is determinative of the case, and because the Court of Appeals addressed the merits i n an alternative ruling, we will exercise our prudential judgment and consider the merits of his
claim.

Reed moved to withdraw his plea about 3 years after his sentence was imposed, and he did not directly appeal his registration violation convictions. K.S.A. 2016 Supp.
22

- 3210(d)(2) states: "To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea." Courts in this

stat e generally consider the three Edgar factors when j udging whether a movant has established manifest injustice : " ' (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. ' " State v.
Morris , 298 Ka n. 1091, 1100, 319 P.3d 539 (2014) (quoting State v. Bricker , 292 Kan. 239, 244, 252 P.3d 118 [2011] ) . " All of the Edgar factors need not apply in a defendant's favor in every case, and other factors may b e duly considered in the district judge's discretionary decision on the existence or nonexistence of good cause. " State v. Aguilar
, 2 90 Kan. 506, 513, 231 P.3d 563 (2010) ; see State v. Glover , 50 Kan. App . 2d 991, 996,
336 P.3d 875 (2014) ("[D] istrict cour ts may consider other re levant factors in order not to

' distort the concep t of good cause.'").

Any post

- sentence motion to withdraw a plea must be brought within 1 year of:

"(A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (B) the denial of a7

petition for a writ of certiorari to the United States supreme court or iss uance of such court's final order following the granting of such petition." K.S.A. 2016 Supp. 22

- 3210(e)(1).

T he court may extend the time limit " only upon an additional, affirmative showing of excusable neglect by the defendant. " K.S.A. 2016 Supp. 22

- 3210(e)(2). The movant, as the party seeking to extend the time limit, carries the burden to show excusable neglect. See State v. Davisson , 303 Kan. 1062, 10 66 , 370 P.3d 423 (2016)

.
This court will not reverse the district court's ruling on a motion to w ithdraw a plea after sentencin g absent an abuse of discretion. State v. Miles , 300 Kan. 1065, 1066,
337 P.3d 1291 (2014)

. "A district court abuses its discretion if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact."
State v. Moore , 302 Kan. 685, 692, 357 P.3d 275 (2015). " The constitutionality of a statute is a question of law over which this court exercises plenary review ." Petersen

Beard , 304 Kan. at 194

.

Reed challenges retroactive application of the tolling provision found in K.S.A.
22

- 4906

. Reed does not challenge the lower court ' s finding that if the amendments are applied retroactively, his registration period would have been extended at least 4 years, thereby bringing his 2008 registration violations within his applicable registration period.

In Petersen

- Beard , we applied the intent

- effects test and concluded lifetime sex offender registration does not constitute "punishment " for purposes of applying any provision of the federa l Constitution . We therefore held that the 2011 version of KORA
could not violate federal prohibitions against cruel and unusual punishment. See 304 Kan.
at 208. W e explained that " i f KORA's lifetime sex offender registration requirement is punishment for either ex post facto or double jeopardy purposes, it must necessarily also8

be punishment for Eighth Amendment purposes. The reverse would likewise be true."
304 Kan. at 196.

We now explicitly extend the holding of Petersen

- Beard to apply to ex post facto challenges. Registration pursuant to KORA for sex offenders is not punishment. Accordingly, retroactive application of the tolling provision to extend Reed's registration period cou ld not violate the Ex Post Facto C lause and does not constitute a manifest injustice. T he district court did not abuse its discretion in denying Reed's motion to withdraw his plea.

Affirmed.

***

J OHNSON , J., dissenting: I dissent from the majority's result and reasoning

.

In order to protect federal funds flowing into the State coffers, the legislature has continually amended KORA to add ever

- increasing onerous registration rules and requirements, resulting "in its modern, maximally invasi ve, maximally pervasive, and infinitely more public incarnation." See State v. Meredith
, 306 Kan. ____, ____ P.3d ____ (No. 110,520, this day decided), slip op. at 11 (Beier, J., dissenting). One has to question whether the legislative intent for KORA to f unction as a civil, regulatory
scheme

— detected in 1996 by State v. Myers , 260 Kan. 669, 681

- 87, 923 P.2d 1024, cert. denied 521 U.S. 1118 (1997)

—has eroded, morphing into a punishment

- for

- pay scenario.

But regardless of intent, the punitive effect of the legislation is crystal clear. It continues to negate any civil, regulatory intent that one might deign to ascribe to the legislature, so that any new amendments to KORA cannot be constitutionally applied9

retroactively. See State v. Petersen

- Beard , 304 Kan . 192, 211

- 25, 377 P.3d 1127 (2016) (Johnson, J., dissenting). Accordingly, I stand by my view that KORA is punitive in effect for purposes of applying the Ex Post Facto Clause, as outlined in detail in the majority opinion in Doe v. Thompson , 304 Kan. 291 , 373 P.3d 750 (2016)
, overruled by
Petersen

- Beard
, 304 Kan. 192

.

B EIER and R OSEN , JJ., join in the foregoing dissent.