Opinion
Nos. 107,361 107,480.
2013-08-29
STATE of Kansas, Appellee, v. Dale CAPPS, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
As part of an agreement with the State, Dale Capps pled no contest to two counts of aggravated indecent solicitation of a child. In return, the State agreed to recommend that Capps be put on 24 months' postrelease supervision. At sentencing, the district court found that Capps' convictions were for sexually violent crimes; therefore, he was subject to a mandatory sentence of lifetime postrelease supervision under K.S.A.2009 Supp. 22–3717(d)(1)(G). Capps objected to the imposition of lifetime postrelease supervision as unconstitutional, and he filed a motion asking the district court to reconsider his sentence. The district court denied the motion, concluding that the order for lifetime postrelease supervision did not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution or § 9 of the Kansas Constitution Bill of Rights. Capps appeals.
A statute is presumed to be constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court has the duty to do so. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009).
When determining whether a sentence is cruel or unusual punishment, a district court must make both legal and factual determinations. On appeal, we review all of the evidence, without reweighing it, to determine whether the evidence is sufficient to support the district court's factual findings. We review de novo the legal conclusions that the district court drew from those facts. State v. Mossman, 294 Kan. 901, Syl. ¶ 1, 281 P.3d 153 (2012).
K.S.A.2009 Supp. 22–3717(d)(1)(G) provides that an offender convicted of a sexually violent crime shall be released to a mandatory period of postrelease supervision for the duration of the person's life. Included in the definition of sexually violent crimes is the crime of aggravated indecent solicitation of a child, Capps' crime of conviction in this case. See K.S.A.2009 Supp. 22–3717(d)(2)(G).
K.S.A.2009 Supp. 75–5217(c) provides that after conviction of a new felony, “upon revocation, the inmate shall serve the entire remaining balance of the period of postrelease supervision even if the new conviction did not result in the imposition of a new term of imprisonment.” Thus, the statutory requirement of lifetime postrelease supervision exposes Capps to imprisonment for life without parole if he is later convicted of a new felony. See K.S.A.2009 Supp. 22–3717(d)(1)(G).
Mandatory lifetime postrelease supervision includes a general requirement that the person cannot commit a new criminal offense and may also include several other specific conditions, including payment of costs and restitution, completion of educational requirements, performing community service, reporting to a supervising officer, and other special conditions allowed by administrative regulations and orders. K.S.A. 21–4703(p); K.S.A.2009 Supp. 22–3717(m); Mossman, 294 Kan. at 904.
Capps initially presented two challenges to the constitutionality of his sentence: a categorical proportionality challenge and a case-specific proportionality challenge. Capps filed his brief in this case 4 days before the Kansas Supreme Court issued its decisions in Mossman and State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012). Our Supreme Court's holding in Mossman—and its consistent holding in the companion case of Cameron—dispose of Capps' categorical proportionality challenge to the imposition of mandatory lifetime postrelease supervision.
In both Mossman and Cameron, the defendants challenged the constitutionality of the statute mandating the imposition of lifetime postrelease supervision following their convictions of sexually violent crimes. The Kansas Supreme Court rejected Mossman's and Cameron's arguments and held their sentences were not disproportionate to the seriousness of their crimes; were not grossly disproportionate to the sentences imposed for other crimes in Kansas or similar crimes in other states; and, therefore, were not categorically unconstitutional. Mossman, 294 Kan. at 903;Cameron, 294 Kan. at 885.
We are duty bound to follow Kansas Supreme Court precedent, absent some indication that the court is departing from its previous motion. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. (2012). We see no indication the Kansas Supreme Court is departing from its position in Mossman and Cameron. Accordingly, we conclude that Capps' sentence to lifetime postrelease supervision for a conviction of aggravated indecent solicitation of a child is not categorically disproportionate.
In State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), our Supreme Court stated: “Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” The court set out three factors to be used in analyzing cruel or unusual punishment claims:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” 223 Kan. at 367.
See State v. Woodard, 294 Kan. 717, 720–23, 280 P.3d 203 (2012).
Our Supreme Court's decisions in Mossman and Cameron addressed the second and third Freeman factors. This leaves only the first prong of the Freeman test, which requires the district court to examine “[t]he nature of the offense and the character of the offender ... with particular regard to the degree of danger present to society.” 223 Kan. at 367. In particular, the district court must consider the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability, and the purpose of the punishment. 223 Kan. at 367.
The first factor is case-specific and inherently factual. The facts relating to this first factor and any conclusions derived from those facts must be determined by the district court, not an appellate court. Woodard, 294 Kan. at 720–21. Here, the district court did not make findings of fact and conclusions of law regarding this fact-specific first Freeman factor.
The first Freeman factor requires us to consider the nature of the offense and the character of the offender, with particular regard to the degree of danger present to society. In doing so, we should consider the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the proscribed punishment. 223 Kan. at 367. In addition: “This analysis may consider the offender's mental state and motive in committing the crime, the actual harm caused to the victim or to society by the offender's conduct, any prior criminal history of the offender, and the offender's propensity for violence.” State v. Ross, 295 Kan. 424, 429, 284 P.3d 309 (2012).
Here, the district court did not make any such findings of fact or conclusions of law. At Capps' sentencing hearing, the district court reviewed K.S.A.2009 Supp. 22–3717(d)(1)(G) and found that lifetime postrelease supervision was the mandatory sentence under that statute because Capps' crimes were sexually violent ones.
At the hearing on Capps' motion to reconsider his sentence, Capps' attorney requested that the district court “reconsider this matter and either grant this or make a more specific record for the purposes of appeal.” Capps' attorney also made this statement about the requirement that claims of cruel and unusual punishment be evaluated on the facts of the case:
“I would only say, and I'm sure [the State] would agree, that any claim that is made of cruel and unusual punishment, it's a factual basis on the case, the courts have said. There could be a difference in one case as opposed to another, ... each case in a sense of cruel and unusual punishment situation has to rely or stand on its own facts, as well.”
In response, the district court stated:
“Well, again, this conviction meets the statutory definition of a sexually violent offense for which lifetime post release is mandated by the statute. So factually I think this case obviously fits within the statutory framework. I think it behooves the Court to impose the lifetime post release and, again, in this Court's humble opinion, at the trial level, again, I question whether it is a ripe, justiciable issue to really reconsider any arguments on constitutional grounds, because in fact Mr. Capps has not completed his sentence and has not been subjected to that lifetime post release, let alone called into question whether he has violated that and would be arguably subjected to a lifetime of incarceration.”
In State v. Seward, 289 Kan. 715, 718–21, 217 P.3d 443 (2009), our Supreme Court addressed an Eighth Amendment challenge to lifetime postrelease supervision in an appeal from a rape and a sodomy conviction sentenced under Jessica's Law. The court recognized that it is not the appellate court's role to make factual findings. Rather, the appellate courts review findings made by the district courts. 289 Kan. at 720–21. In Seward, the district court did not make findings relating to the Freeman factors. Our Supreme Court remanded to district court for such findings:
“In view of the tension produced by these authorities, the newness of the constitutional issues raised by Jessica's Law, and our recognition [of] the efforts made by Seward and his counsel to keep the issues alive beyond sentencing ..., we are willing to remand this case to the district court for entry of sufficient factual findings and conclusions of law. On remand, the district judge shall also be empowered to decide, in her discretion, whether she requires any further hearing, evidentiary or otherwise, to discharge her Rule 165 duty.
“We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under Rule 165, if necessary.” (Emphasis added.) Seward, 289 Kan. at 721.
See Supreme Court Rule 165 (2012 Kan. Ct. R. Annot. 262).
Seward makes clear that a defendant wishing to make a constitutional challenge must ensure adequate findings of facts and conclusions of law in the district court to support his or her argument. In State v. Berriozabal, 291 Kan. 568, 592, 243 P.3d 352 (2010), the Supreme Court recognized that the journal entry was filed “before we had made it clear [in Seward ] that a defendant would have the duty to ensure adequate findings of fact.” Unlike in Berriozabal, Capps was sentenced long after the October 2, 2009, opinion in Seward was filed. Capps should have pressed the district court for the findings and conclusions required by Supreme Court Rule 165 before pursuing this appeal. It was incumbent on Capps to designate in the record facts supporting his claim that the district court erred in concluding that his sentence for lifetime postrelease supervision was unconstitutional. Having failed to do so, Capps' constitutional challenge fails for not being properly preserved for appeal, and we affirm the district court's imposition of lifetime postrelease supervision.
Affirmed.