Opinion
No. 105597.
2015-01-30
STATE of Kansas, Appellee, v. Jeffrey Allen CROFT, Appellant.
Appeal from Johnson District Court; John P. Bennett, Judge.Scott C. Gyllenborg, of Gyllenborg & Dunn, P.A., of Olathe, for appellant.Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Scott C. Gyllenborg, of Gyllenborg & Dunn, P.A., of Olathe, for appellant. Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
The district court convicted Jeffrey Croft of electronic solicitation of a minor and sentenced him to 39 months in prison, a downward departure from the presumptive range for his crime of 55 to 247 months. In 2012, this court heard Croft's appeal for the first time. We determined that he had not alleged any errors requiring reversal and that we lacked jurisdiction under K.S.A. 21–4721(c)(1) and State v. Crawford, 21 Kan.App.2d 169, 897 P.2d 1041 (1995), to consider the portion of Croft's appeal regarding his sentence because he'd received a departure sentence favorable to him. But in 2014, the Kansas Supreme Court overruled Crawford and clarified that K.S.A. 21–4721(c)(l) doesn't divest this court of jurisdiction to consider the appeals of defendants who receive favorable departure sentences. State v. Looney, 299 Kan. 903, 909, 327 P.3d 425 (2014). Accordingly, the Kansas Supreme Court granted review over Croft's case and remanded the portion of it regarding his sentence—the part we had dismissed—back to this court for consideration in light of Looney.
On remand, we conclude that while our jurisdiction to consider Croft's sentence is not divested by K.S.A. 21–4721(c)(1), we nonetheless lack jurisdiction to consider the specific argument Croft is making. Croft argues that the presumptive sentence for electronically soliciting a minor is cruel and unusual in violation of the Eighth Amendment. But Croft didn't receive the presumptive sentence-he received far less than it suggested. Thus, even if the presumptive sentence for his crime was unconstitutional, he was not injured by it. Because he wasn't injured by it, he lacks standing to complain about it. We lack jurisdiction to adjudicate a dispute raised by a party without standing. We therefore dismiss the portion of Croft's appeal regarding the constitutionality of the presumptive sentence for electronically soliciting a minor.
Factual and Procedural Background
Croft propositioned an individual identifying as a 15–year–old girl in an online chat room, made sexually explicit remarks to her, arranged to meet her, and went to the address she gave him so that the two could engage in the sexual acts they had discussed. State v. Croft, No. 105,597, 2012 WL 6634389, at *1 (Kan.App.2012) (unpublished opinion), vacated in part August 29, 2014. When Croft arrived at the address, he learned that he had been talking to an adult police detective and was arrested. In 2010, a jury convicted Croft of electronic solicitation of a child, despite Croft's defense that he believed the girl was an adult engaged in role playing. 2012 WL 6634389, at *3.
At sentencing, the court granted Croft's motion for a downward departure and sentenced him to 39 months in prison instead of a sentence within the presumptive range of 55 to 247 months. 2012 WL 6634389, at *10.
Croft appealed to this court and argued that the statute he was convicted under was unconstitutionally vague and overbroad, the jury instructions were in error because they used certain terms such as “entice” and “solicit” that were not defined, the evidence did not show that he had enticed anyone because the child turned out to be a detective, and his sentence constituted cruel and unusual punishment because the sentence for electronic solicitation of a child exceeded the sentence for face-to-face solicitation, making his punishment disproportionate to his crime. 2012 WL 6634389, at *1, 3, 8–10. We found that Croft had not alleged any error in regard to the statute or his trial but held that we lacked jurisdiction to consider the constitutionality of his sentence because of our 1995 decision in Crawford, 21 Kan.App.2d at 169, which held that defendants could not appeal favorable departure sentences under K.S.A. 21–4721(c)(1). Croft, 2012 WL 6634389, at *11.
But on August 29, 2014, the Kansas Supreme Court granted Croft's petition for review and vacated the portion of our opinion that concluded that we lacked jurisdiction to consider Croft's sentence and remanded it back to us for consideration in light of its recent decision in Looney, 299 Kan. at 903, which clarified the circumstances under which departure sentences are appealable.
We now must consider Croft's argument about his sentence in light of Looney and determine whether: (1) we have jurisdiction to consider it; and (2) if so, whether the sentence is cruel and unusual. The sole focus of this opinion on remand will be Croft's sentence, as the Kansas Supreme Court's order vacated only the portion of our opinion dismissing Croft's challenge to his sentence.
Analysis
Under Looney and K.S.A. 21–4721(c)(1), Croft's Favorable Departure Sentence Is Appealable.
In Looney, the Kansas Supreme Court examined the plain language of K.S.A. 21–4721(a), (c)(1), which governed Looney's appeal and which also governs Croft's, particularly examining the provisions that give this court jurisdiction over departure sentences but divest it of jurisdiction over presumptive sentences:
“ ‘(a) A departure sentence is subject to appeal by the defendant or the state....
“ ‘(c) On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review:
(1) Any sentence that is within the presumptive sentence for the crime....' “ Looney, 299 Kan. at 905, 327 P.3d at 427.
Rejecting this court's holding in Crawford (on which we based our conclusion that we lacked jurisdiction to consider Croft's sentence), the Kansas Supreme Court concluded that all departure sentences are appealable under subsection (a) and that subsection (c)(1) only divests this court of jurisdiction over sentences within the presumptive range for a crime. 299 Kan. at 908–09, 327 P.3d at 428–29. Because Looney received a departure sentence, albeit one favorable to him, the Looney court concluded that we had dismissed his argument regarding his sentence for lack of jurisdiction under K.S.A. 21–4721(a), (c)(1) in error. 299 Kan. at 909–10, 327 P.3d at 429.
The first time Croft's case was before us, we likewise erred by relying on Crawford to dismiss his appeal under K.S.A. 21–4721(a), (c)(1). Under Looney, it is clear that K.S.A. 21–4721(c)(1) does not divest this court of jurisdiction to consider an appeal of Croft's sentence. Croft received a departure sentence and can appeal it—even though the departure was favorable to him. Croft Nevertheless Lacks Standing to Raise the Issue He Pursued on Appeal–That the Presumptive Sentence for This Crime Constitutes Cruel and Unusual Punishment.
We next turn to the sentencing issue Croft raised. His appellate brief states the issue succinctly: “The presumptive sentence of 55 to 247 months in prison violates the protection against cruel and unusual punishment provided by the United States Constitution and the Kansas Bill of Rights.” The State argues that Croft essentially asks us for an advisory opinion since he did not receive the presumptive sentence he challenges. The State then argues that the Kansas case-or-controversy requirement provides that parties must have standing and that the issues cannot be moot or contingent for the court to answer them.
Because Croft did not receive the presumptive sentence, he lacks standing to raise the challenge he has briefed on appeal regarding his sentence. Whether a party has standing to make a particular argument presents a question of subject-matter jurisdiction that may be raised at any time. State v. Gilbert, 292 Kan. 428, 431–32, 254 P.3d 1271 (2011). Generally, standing requires a party to show that he or she has suffered an injury that was caused by the conduct the party has challenged and that this court can redress. Gannon v.. State, 298 Kan. 1107, 1122–23, 319 P.3d 1196 (2014) (discussing both traditional Kansas standing requirements and traditional federal standing requirements applied by Kansas courts).
With regard to constitutionality, a defendant has standing to challenge the constitutionality of a statute only insofar as that statute was unconstitutionally applied to him or her. State v. Snow, 282 Kan. 323, 343, 144 P.3d 729 (2006), disapproved of on other grounds by State v. Gruder, 293 Kan. 763, 267 P.3d 751 (2012); State v. Thompson, 237 Kan. 562, 563, 701 P.2d 694 (1985); State v. Green, 38 Kan.App.2d 781, 789, 172 P.3d 1213 (2007), rev. denied 286 Kan. 1182 (2008); Hageman v. KDR, No. 104,073, 2011 WL 1877819, at *1 (Kan.App.2011) (unpublished opinion) (concluding “ ‘[a] party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his [or her] own rights' ”). Put another way, a defendant cannot challenge the constitutionality of a statute if the statute was not applied in the defendant's case. State v. Jacobs, 293 Kan. 465, Syl. ¶ 2, 263 P.3d 790 (2011).
For example, in Jacobs, the Kansas Supreme Court refused to consider the defendant's argument that sentences under Jessica's Law were unconstitutional because he had not been sentenced under Jessica's Law but had received a lesser sentence. 293 Kan. at 466. Thus, even though a Jessica's Law sentence might have been unconstitutional, Jacobs was prevented from challenging it. 293 Kan. at 466.
Similarly, in State v. Hall, our court said that a defendant who—like Croft—received less than the presumptive sentence for electronic solicitation of a child could not complain on appeal that the presumptive sentence for that crime was cruel and unusual. No. 99,430, 2009 WL 3428551, at *11 (Kan.App.2009) (unpublished opinion), rev. denied 291 Kan. 915 (2010). See also State v. Baker, 281 Kan. 997, 1021–22, 135 P.3d 1098 (2006) (noting that where hard 50 sentencing statute didn't apply to a defendant, he lacked standing to challenge its constitutionality).
Croft argues that the presumptive sentencing range for electronic solicitation of a child is disproportionate to the presumptive sentencing range for face-to-face solicitation of a child and disproportionate to the punishment for the same offense in other states, and he suggests that these disparities make the presumptive sentencing range for electronic solicitation unconstitutional. But like the arguments in Jacobs and Hall, we cannot consider Croft's theoretical argument. Croft did not receive a presumptive sentence for electronic solicitation of a child, which would have been any prison sentence between 55 and 247 months. He received far less than that—only 39 months. Thus, even if the presumptive sentence was unconstitutional, Croft wasn't harmed by it. Croft lacks standing to raise this issue, and we lack jurisdiction to consider it.
We therefore dismiss the portion of Croft's appeal challenging the constitutionality of the presumptive sentence for electronically soliciting a minor.