1 NOT DESIGNATED FOR P UBLICATION

N o

. 112,107

IN THE SUPREME COURT OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appell ee ,

v

.
J ESSE V ILLA , Appell ant

.

MEMORANDUM OPINION

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 10, 2015

. Appeal from Reno District C ourt; J OSEPH L. M C C ARVILLE , III , judge. Opinion filed August 18, 2017

. Jud gment of the Court of Appeals affirming the district court is affirmed

. Judgment of the district court is
affirmed

.

Samuel Schirer , of Kansas Appellate Defender Office
, was on the brief for appellant.

Keith E. Schroeder
, district attorney , and Derek Schmidt , attorney general, were on the brief for appellee.

Per Curiam : Jesse Villa was convicted of aggravated battery and ordered to register a s a violent offender under the Kansas Offender Registration Act (KORA),
K.S.A. 22

- 4901 et seq ., after a district court judge found Villa used a deadly weapon to
commit the offense. For the first time on appeal, Villa 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 reasonable2

doubt. The persuasiveness of this challenge turn s on whether KORA's requirements constitute punishment for his crime. We affirm the registration order

.

The outcome of Villa's appeal is controlled by State v. Meredith
, 306 Kan. ___ , ___ P.3d __ (No. 110,520, filed August 4, 2017), slip op. at 10 and Sta te v. Huey , 306 Kan. __, __ P.3d __ (No. 109,690, filed August 11, 2017)

. Like the appellants in those

cases, Villa offers no fact

- based arguments on the factors we must consider in determining whether the Act's effects render it punitive as applied to vio lent 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

- intens ive 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, Villa has not demonstrated, as he must, that the registration requirements constitute punishment. Because the registration requirements did n ot increase Villa 's 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.

Affirmed.

* * *3

B EIER , J. , dissenting: Consistent with my votes in State v. Meredith
, 306 Kan.

___, ___ P.3d ___ (No. 110,520, filed August 4, 2017); and State. v. Huey , 306 Kan. ___, ___ P.3d ___ (No. 109,690, filed August 11, 2017) , I respectfully dissent from the majority's decision in this case.

"Kansas' requirement of offender registration

— especially in its modern, maximally invasive, maximally 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
than when Apprendi or the Eighth Amendment is before us." Meredith
, 306 Kan. at ___, slip op. at 11

- 12 (Beier, J., dissenting).

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