Opinion
No. 108,722.
2013-10-25
Randy Allen MARLER, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sumner District Court; William R. Mott, Judge. Gerald E. Wells, of Lawrence, for appellant. Lee J. Davidson, assistant attorney general, for appellee.
Appeal from Sumner District Court; William R. Mott, Judge.
Gerald E. Wells, of Lawrence, for appellant. Lee J. Davidson, assistant attorney general, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Randy Allen Marler appeals from the district court's decision to deny his K.S–A. 60–1507 motion alleging ineffective assistance of counsel. Specifically, he contends his trial counsel was ineffective by failing to: (1) file a motion to suppress Marler's confession, (2) object to the admission of evidence of Marler's prior drug use, (3) contest the State's failure to prove the element of Marler's age, and (4) argue that the imposition of two consecutive hard 25 sentences would constitute cruel and unusual punishment under the Kansas Constitution Bill of Rights.
Facts
A jury convicted Marler of rape, aggravated indecent liberties with a child under age 14, and endangering a child. Marler's convictions were affirmed by the Kansas Supreme Court in State v. Marler, 290 Kan. 119, 129, 223 P.3d 804 (2010). The relevant facts are set forth in the Supreme Court's opinion:
“The charges against Marler alleged that he committed sexual acts upon his 13–year–old daughter, H.M. The allegations were originally brought to light when Marler's wife, Pam, applied for a protection from abuse (PFA) order, in which she related that she had witnessed Marler having oral sex with H.M. Pam sought the PFA order a few days after Marler was arrested and incarcerated as a result of a fight with Pam.
“After the PFA application, Pam and H.M. were interviewed about the sexual abuse incident. H.M. reported that, on a Sunday evening, her father had given her 1 1/2 measuring cups of Nyquil, together with some pills, which made her drift in and out of a sleep-like state for the next 3 days. She recalled awakening in bed and discovering that she was naked and that Marler had his head between her legs, ‘licking her “down there.” ‘ H.M. also recounted that on at least three other occasions Marler had touched her breasts and her crotch over the top of her clothing.
“Pam related a similar version of the events, reporting that on a Sunday evening Marler had given H.M. Nyquil and a pill which she thought was either Valium or Xanex. The next day, upon returning home from picking up her son from school, Pam discovered Marler in bed performing oral sex on H.M. After she yelled at him to stop, Marler left the room, at which point Pam climbed into bed with H.M. She later awoke to find Marler in the bed, again performing oral sex on H.M. Pam was granted use and derivative use immunity for her trial testimony, and, at trial, she also testified about using methamphetamine with Marler.
“Captain Jeff Hawkins questioned Marler about the allegations. Marler related that both he and Pam had been using methamphetamines for several months and that during that time they both discussed having a sexual encounter with H.M. Marlerclaimed that it was Pam who provided the Nyquil and gave H.M. two or three Xanex tablets. He then reported that he took H.M. on an errand to Wichita and upon their return, Pam ordered H.M. to undress and get into bed, Marler alleged that Pam performed sex acts on H.M. He also stated that while Pam was picking up their son from school, he attempted to get back “with the plan” by positioning his head between H.M.'s legs so it would look as though he was having oral sex with her when Pam came back into the room. Captain Hawkins asked Marler to draft a written statement, and Marler complied with the request, bringing a handwritten, eight-page statement to Hawkins the next afternoon. The statement recounted the events as Marler had described them to Captain Hawkins the day before. It also included multiple references to Marler's methamphetamine use, which he blamed for his conduct. Captain Hawkins videotaped as he reviewed with Marler the contents of the written statement
“At trial, Marler recanted his written statement and claimed that he made it up in order to protect the children. His hope was that by implicating Pam, the children would be removed from her care. Accordingly, when the children were removed from the home and out of danger, he felt free to recant his false confession. However, Marler never objected to the introduction of his prior confessions.
“A jury found Marler guilty of rape, aggravated indecent liberties with a child under 14, and endangering a child, but acquitted him of aggravated criminal sodomy. Marler moved for a departure sentence, arguing that his supportive family and employment history justified a downward departure. He also filed a motion for a new trial ‘based on the erroneous rulings during the trial’ and pretrial. Both motions were denied. Marler was sentenced to two consecutive hard 25 life sentences.” Marler, 290 Kan. at 120–22.
After the Supreme Court affirmed his convictions, Marler filed a K.S.A. 60–1507 motion raising numerous allegations of ineffective assistance of his trial counsel, Sean Shores. Relevant to the issues raised in the present appeal, Marler claimed that Shores was ineffective in failing to: (1) file a motion to suppress Marler's confession, (2) object to the introduction of evidence regarding Marler's history of drug use, (3) contest the State's failure to prove that Marler was over 18 years of age at the time of the charged crimes, and (4) argue that Marler's sentence constituted cruel and unusual punishment. The district court appointed counselahd scheduled an evidentiary hearing on Marler's motion. Following testimony from Marler, Shores, and Hawkins, the district court took the matter under advisement. In a subsequent written opinion, the district court denied Marler's motion. In denying Marler's motion, the court specifically found that Marler's testimony at the evidentiary hearing was not credible in light of the record as a whole.
Standard of Review
After a full evidentiary hearing on a K.S.A. 60–1507 motion, the district court must issue findings of fact and conclusions of law on all issues presented. Supreme Court Rule 183(j) (2012 Kan. Ct. R. Annot. 274). An appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is unlimited. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007). A claim of ineffective assistance of counsel also presents mixed questions of fact and law. An appellate court reviews the underlying factual findings for substantial competent evidence and exercises unlimited review over the legal conclusions based on those facts. Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
Standard of Proof
To establish a claim of ineffective assistance of trial counsel, the defendant must prove that (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). The first prong of the test requires the defendant to show that counsel's representation fell below an objective standard, considering all the circumstances. Judicial scrutiny of counsel's performance must be highly deferential, with every effort made to eliminate the distorting effects of hindsight, There is a strong presumption that counsel's conduct falls within, the wide range of reasonable professional assistance. 283 Kan. at 90. The second prong of the test requires the defendant to establish prejudice by showing there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the case, with the court considering the totality of the evidence on the claim of ineffectiveness. 283 Kan. at 90–91.
Analysis
1. Counsel's failure to file a motion to suppress Marler's confession
Captain Hawkins conducted two interviews with Marler. The first interview took place on April 19, 2007, and the second one took place on April 20, 2007. Prior to the April 19 interview, Hawkins provided Marler with oral and written Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Marler waived his Miranda rights and agreed to speak with Hawkins. At the end of the April 19 interview, Marler agreed to make a statement in writing and told Hawkins that he would let Hawkins know when he was finished. The following day, April 20, Marler notified Hawkins through the jail staff that Marler wanted to see him. Hawkins met with Marler, and Marler gave Hawkins his written statement. Hawkins again provided Marler with oral Miranda warnings, which Marler waived, agreeing to speak with Hawkins about the written statement. Marler's eight-page written statement was admitted into evidence at trial without objection.
In his K.S.A. 60–1507 motion, Marler claims that Shores' failure to file a motion to suppress the confession he made to Hawkins on April 20, 2007, amounts to ineffective assistance of counsel. But after hearing the testimony of Hawkins, Shores, and Marler at the evidentiary hearing, the district court found otherwise. a. Counsel's performance was not deficient
The court found Shores' decision not to file a motion to suppress was a strategic decision made by Shores in planning Marler's defense and thus was not deficient performance. In discussing trial strategy, our Supreme Court has explained that strategic decisions made by trial counsel based on a thorough investigation are virtually unchallengeable:
“Trial counsel has the responsibility for making tactical and strategic decisions including the determination of which witnesses will testify. Even though experienced attorneys might disagree on the best tactics or strategy, deliberate decisions based on strategy may not establish ineffective assistance of counsel. Strategic choices based on a thorough investigation of the law and facts are virtually unchallengeable.” Flynn v. State, 281 Kan. 1154, Syl. ¶ 5, 136 P.3d 909 (2006).
Nevertheless, defense counsel may not “disregard pursuing a line of investigation and call it ‘trial strategy.’ “ State v. James, 31 Kan.App.2d 548, 554, 67 P.3d 857,rev. denied 276 Kan. 972 (2003). “[W]hen counsel lacks the information to make an informed decision due to inadequacies of his or her investigation, any argument of trial strategy' is inappropriate.” Mullins v. State, 30 Kan.App.2d 711, 716–17, 46 P.3d 1222,rev. denied 274 Kan. 1113 (2002). Upon review, “[s]trategic choices based on less than a complete investigation are reasonable to the extent that reasonable professional judgment supports the limitation on the investigation.” Flynn, 281 Kan. at 1157.
In this case, the district court's finding that Shores' decision not to file a motion to suppress the April 20, 2007, confession was a matter of trial strategy is supported by substantial competent evidence in the record. Shores testified at the hearing that he reviewed all of the evidence relating to Marler's confession and concluded there simply was no legal basis to challenge the voluntariness of the confession. Specifically, the irrefutable evidence, which included a video, demonstrated that Hawkins had complied with Miranda and that Marler was voluntarily speaking with Hawkins. After coming to this conclusion, Shores told Marler there was no legal basis to keep the confession out of evidence. Shores testified that Marler understood it was his decision whether to testify but that Marler wanted to testify in order to explain to the jurors that the statement to Hawkins was actually a false confession. Specifically, Marler wanted to explain that he had become frustrated because law enforcement had been ignoring his pleas to get his children out of Pam's dangerous home so he falsely confessed to helping Pam molest H.M. in hopes that this would convince authorities to remove the children from Pam's home. Shores said Marler insisted on telling the story he ultimately testified to at trial and, as a result, Shores crafted a trial strategy around that expected testimony, which included evidence of the confession.
In challenging the district court's finding on appeal, Marler cites to evidence in the record that counters Shores' testimony. Marler testified that Shores told him that he had no choice but to testify in order to explain the statements he made to Hawkins were false. Marler testified he had discussed suppressing the statements with Michael Brown, his former defense counsel, and that Brown had been ready to file a suppression motion. At the hearing, the parties stipulated to Brown's testimony. The stipulation stated that Brown would testify he intended to file a motion to suppress Marler's April 20, 2007, written statement and videotaped interview on grounds that the confession had been induced and was not voluntary. Brown's legal argument was going to be finalized after reviewing the preliminary hearing transcript, but this had not been done because Shores took over the case. Brown expressed no opinion as to whether the suppression motion would have been granted or denied but did say that such a motion should have been filed.
Marler's argument about the evidence presented at the hearing simply asks us to reweigh the evidence, which is not our role. Unruh v. Purina Mills, 289 Kan. 1185, 1195, 221 P.3d 1130 (2009) (appellate courts do not reweigh the evidence or pass on the credibility of the witnesses). In fact, the district court in this case specifically found Shores' testimony to be more credible than Marler's. We find substantial competent evidence supports the district court's finding that Shores' decision not to file a motion to suppress the April 20, 2007, confession was a matter of trial strategy. b. Prejudice
But even if Shores' conduct in failing to file a motion to suppress the confession was deficient, Marler must still show that he suffered prejudice as a result. In order to establish prejudice resulting from the failure to seek suppression of the confession, Marler must show that (1) the evidence would have been suppressed and (2) the result of the trial would have been different absent the excluded evidence. See Cellier v. State, 28 Kan.App.2d 508, 517, 18 P.3d 259,rev. denied 271 Kan. 1035 (2001), disapproved on other grounds by State v. Swanigan, 279 Kan. 18, 45, 106 P.3d 39 (2005).
Marler does not allege that he did not knowingly, voluntarily, or intelligently waive his Miranda rights. Indeed, Marler waived his rights verbally and in writing prior to the April 19 interview and again verbally waived his rights prior to the April 20 interview. However, “one can make a voluntary waiver of his or her Miranda rights but still produce an involuntary confession.” State v. Mattox, 280 Kan. 473, 483, 124 P.3d 6 (2005), cert. denied547 U.S. 1197 (2006); but see United States v. Washington, 431 U.S. 181, 188, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977) (“[I]t seems self-evident that one who is told he [or she] is free to refuse to answer questions is in a curious posture to later complain that his [or her] answers were compelled.”). Marler claims that during the course of the April 19 interview, his understanding of his rights under Miranda changed. Specifically, Marler contends his free will was overcome by his overwhelming concern for the safety of his children because he was under the impression that if he told Hawkins a story, the children would be removed from Pam's dangerous home. He also argues that Hawkins told him that there was no evidence to corroborate that Marler had had intercourse with H.M. Finally, Marler suggests that Hawkins' questions regarding Marler's and Pam's drug use constituted implied threats that they would be charged with drug crimes. Given his confusion about his Miranda rights, Marler asserts that Shores was ineffective in failing to explain why a motion to suppress should not be filed or make sure that Marler understood the implications of not filing a suppression motion.
To the extent that Marler relies on Hawkins' implied threats to charge Marler and Pam with drug crimes to support his claim, this is not the argument that Marler made below. Instead, Marler specifically argued that Hawkins' statements that he could not charge Marler with any drug crimes due to a lack of corroboration affected Marler's understanding of Miranda in that he thought he also could not be charged with any sex crimes without any corroboration. Generally, issues not raised before the trial court cannot be raised on appeal. In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009). Marler does not acknowledge the discrepancy between his argument below and the one he now raises on appeal, and he does not argue the application of any exception to the general rule that a new legal theory may not be asserted for the first time on appeal. See In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied555 U.S. 1178 (2009). As a result, this court need not address whether any implied threats of drug charges affected Marler's free will.
The voluntariness of a confession is determined under the totality of the circumstances. State v. Sharp, 289 Kan. 72, 80, 210 P.3d 590 (2009).
“A nonexclusive list of factors bearing on the voluntariness of a statement by an accused include the accused's mental condition; the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; the fairness of the officers conducting the interrogation; and the accused's fluency with the English language,. The essential inquiry is whether the confession was the product of the free and independent will of the accused.” 289 Kan. 72, Syl. ¶ 3.
Marler's mental condition
Hawkins testified that Marler appeared clear and lucid during the April 19 and 20 interviews. This testimony is supported by the record. Marler also appeared to be free of the influence of drugs and/or alcohol and did not appear to have any mental diseases or defects that interfered with his ability to interact with Hawkins. Marler did appear emotional at times, but the district court interpreted this emotion as fake. Hawkins testified that although Marler appeared to be emotional at times during the interviews, he never saw Marler shed any tears and opined that Marler was faking his emotions. Marler's claim that he was under duress during the interviews because he feared for the safety of his children is simply not supported by the video evidence in the record. It does not appear that Marler's chief concern was his children, and there is no evidence that Hawkins exploited Marler's alleged concern for his children to overcome his free will and force a confession.
Duration and manner of the interrogation
The April 19 interview was 3 hours and 6 minutes long. The April 20 interview was 1 hour and 9 minutes long. Both interviews took place while Marler was in custody at the Sumner County Jail. On both occasions, Marler waived his Miranda rights. Hawkins was the only law enforcement officer conducting the interviews, he was in plain clothes, and he was unarmed. Hawkins made no threats or promises to Marler. Moreover, Marler never asked for, and was never denied, a break during the interviews. The tone of the interviews was mainly polite and conversational, though Hawkins did appear to become frustrated at times when Marler deviated from the subject of the interview. During the April 19 interview, Hawkins asked Marler questions and Marler was allowed to speak freely. The April 20 interview consisted mainly of Hawkins reading a line of Marler's written confession and then Marler would comment. Marler wrote his confession in his jail cell, outside the presence of Hawkins or anyone else. Hawkins simply instructed Marler how to start the statement, to sign every page, and to write whatever he wanted.
Marler's ability to communicate with the outside world
Marler was in custody at the time of the interviews, which presumably compromised his ability to communicate with the outside world. But Marler never asked to speak with an attorney, or anyone else, during the interviews. Marler does not suggest, nor is there any evidence in the record to show, that he was denied the ability to communicate with anyone.
Marler's age, intellect, and background
Marler's date of birth is December 19, 1962. At trial, Marler testified that he was an electrical engineer who designed and embedded microcontroller systems for Boeing vendors. Prior to that time, he was in the Army and worked for U.S. Missile Command on missile guidance systems. Marler owned his own business for 20 years. During his competency evaluation, Marler told the evaluator that he had an IQ of 148. The evaluator described Marler as follows:
“He is an intelligent man, with a good memory and is able to think in complicated ways and understand complicated concepts quite well. His memorization of Bible verses clearly depicts this ability. His verbal skills were excellent and his ability to think and reason were well [demonstrated]. His only issue in the exam was his propensity to fabricate stories which he from time to time would contradict or correct if questioned. This observation seemed related to a personality disorder, not a defect in mental ability.”
The fairness of the officers in conducting the interrogation
Although Marler argues that his confession was coerced because he was under duress over the safety of his children and incidentally suggests that his understanding of Miranda changed due to Hawkins' discussion about whether Marler could be charged for his prior drug use, the evidence in the record does not support Marler's claims.
During the April 19 interview, Marler told Hawkins about Pam's illegal drug use and how methamphetamine had ruined their lives. Marler later stated that prior to the sex acts that Pam performed on H.M., he took H.M. with him to meet with a man in Wichita who owed him money. Hawkins suggested that this might have been a drug deal, and stated, “Bearing in mind there's probably absolutely nothing I can do about it at this juncture, but ... I found scales and baggies and all that kind of crap in your house. Somebody was selling dope. Was it you or Pam or both of you?” In response, Marler stated that Pam was “the doper” and that he was “small potatoes.” Hawkins reiterated that he would not be able to charge Marler with drug crimes without some sort of corroboration but stated that he was asking about the drugs because he wanted to establish whether Marler would tell him the truth. Throughout the interview, Marler repeatedly attempted to bring up Pam's drug use and it appeared that he was intending to divert the focus from the investigation of the sex crimes against H.M. to Pam's drug use. Marler also suggested that he could provide Hawkins with the names of drug suppliers and asked Hawkins what this information could do for him with respect to H.M.'s sexual allegations. Hawkins did not appear to be concerned with the topic of drugs and was instead focused on what had happened to H.M.
At the K.S.A. 60–1507 hearing, Hawkins testified that Marler did not appear to be concerned about the immediate safety of his children during the interviews. Hawkins denied that Marler could have translated the conversation about not being able to charge him with drug crimes to also mean that he could not be charged with sex crimes, as Hawkins never told Marler that he could not be charged with sex crimes. Hawkins also noted that Marler's statements about the sex crimes had been corroborated by statements from Pam, H.M., and H.M.'s brother.
The record supports Hawkins' testimony. During the April 19 interview, Marler appeared mainly to be concerned about discussing Pam's drug use and other deviant behavior and did not express concern about the immediate safety of his children. Even if Marler's assertion that his mention of Pam's drug use was an indirect comment regarding the safety of his children is true, it does not appear that Marler's free will was overcome by this concern. Additionally, Marler's claim that Hawkins subverted his understanding of Miranda is unpersuasive. Hawkins did not suggest or imply that Marler could confess to sex crimes without any consequence. And as noted by the district court, Marler waived his Miranda rights again prior to his April 20 confession.
Marler's fluency in the English language
It is readily apparent from the record that Marler is fluent in the English language.
Conclusion
Our review of the entire record, including Marler's knowing and voluntary waiver of his Miranda rights and the April 19 and 20 video interviews, readily demonstrates that Marler's April 20 confession was the product of his free and independent will. Thus, even if Shores had moved to suppress Marler's confession, it would have been unsuccessful. As a result, Marler has failed to show prejudice as a result of Shores' decision not to file a motion to suppress the confession and his claim of ineffective assistance of counsel necessarily fails.
2. Counsel's failure to object to the admission of Marler's prior drug use
Within his argument on the suppression issue, Marler also appears to raise a separate argument suggesting that Shores was ineffective in failing to object to the admission of evidence of Marler's prior drug use at trial. Marler notes that in his direct appeal, the Supreme Court refused to review a claim regarding the admissibility of prior drug use evidence because defense counsel had not objected to the introduction of this evidence at trial. See Marler, 290 Kan. at 122–23.
At the K.S.A. 60–1507 hearing, Shores testified the decision not to object when the State introduced evidence of Marler's prior drug use was a matter of trial strategy. First, Shores testified there was no legal basis upon which to suppress Marler's written statement and the statement included incriminating details about how Marler's and Pam's increasing drug use had contributed to H.M.'s sexual abuse. Shores explained that Marler wanted to testify at trial in order to explain to the jurors that he falsely confessed to helping Pam molest H.M. in hopes that this would convince authorities to remove the children from Pam's home. Shores said Marler insisted on telling the story he ultimately testified to at trial and, as a result, Shores crafted a trial strategy around that expected testimony, which included evidence of Marler's prior drug use to attempt to diminish Marler's culpability for the crimes charged against him.
There is substantial competent evidence in the record to establish that Shores' decision not to file a motion to suppress was a strategic decision made by Shores in planning Marler's defense and thus was not deficient performance. Accordingly, we find no merit to Marler's claim of ineffective assistance of counsel on this issue.
3. Counsel's failure to challenge insufficient proof of Marler's age
Marler claims Shores was ineffective at various times during and after trial in failing to challenge the State's failure to meet its burden of proof. Specifically, Marler argues the State failed to present any evidence at trial to prove that Marler was over 18 at the time of the alleged crimes, which is an essential element of the charged offenses.
The State charged Marler with rape, aggravated criminal sodomy, and aggravated indecent liberties with a child less than 14 years of age. These crimes are all off-grid felonies subject to a hard 25 life sentence under Jessica's Law. See K.S.A. 21–4643(a)(1)(B)–(D). The statutes defining these crimes makes a defendant's age—18 years or older—an element of the off-grid version of the crime. See K.S.A. 21–3502(c); K.S.A. 21–3504(c); K.S.A. 21–3506(c); State v. Reyna, 290 Kan. 666, 676, 234 P.3d 761,cert. denied131 S.Ct. 532 (2010) (“the defendant's age at the time of the offense is an element of the crime if the State seeks to convict the defendant of the more serious, off-grid offense”). Similarly, Jessica's Law mandatory minimum sentencing is only applicable to “a defendant who is 18 years of age or older.” K.S.A. 21–4643(a)(1). Accordingly, when there is no evidence to establish the age element in offenses charged under Jessica's Law, the sentencing court is precluded from imposing the enhanced off-grid sentence and must instead impose the lesser on-grid sentence. See State v. Sellers, 292 Kan. 346, 362, 253 P.3d 20 (2011); State v. Morningstar, 289 Kan. 488, Syl. ¶ 3, 213 P.3d 1045 (2009); State v. Gonzales, 289 Kan. 351, Syl. ¶ 10, 212 P.3d 215 (2009); State v. Bello, 289 Kan. 191, 199–200, 211 P.3d 139 (2009).
The jury ultimately convicted Marler of rape and aggravated indecent liberties with a child. For each of these charges, the district court instructed the jury that, as an element of each offense, it must determine whether Marler was 18 years of age or older at the time of the offenses. The district court also instructed the jury on lesser included offenses for these crimes, which did not include the element requiring the jury to determine Marler's age.
Marler contends the State failed to present any direct evidence supporting the element of his age and, therefore, Shores should have filed a motion for directed verdict at the close of the State's evidence or a postjudgment motion based on the State's failure to meet its burden of proof.
Contrary to Marler's claim, however, the record contains direct evidence of Marler's age. At the beginning of the April 20 video interview, which was admitted into evidence and watched by the jury in its entirety, Hawkins asked Marler to state his date of birth. Marler responded, “12–19–62.” Additionally, during Hawkins' testimony, the State admitted into evidence the Miranda rights waiver signed by Marler, which listed his date of birth as December 19, 1962.
In addition to this direct evidence of Marler's age, there was circumstantial evidence presented that indicated Marler was over age 18 at the time of the crimes: Pam testified that she met Marler in 1990, approximately 17 years prior to the offenses. Pam noted that she met Marler through her roommate, who was Marler's secretary at the time. Marler's daughter, H.M., was 12 years old at the time of the crimes at issue. Marler testified that he was a United States Army veteran and that he ran his own business for 20 years. Based on this circumstantial evidence, the jury reasonably could infer that Marler was over the age of 18 at the time of the crimes.
Because the evidence presented at trial clearly established that Marler was over 18 years of age at the time of the crimes, any argument to the contrary raised by Shores would have failed. As a result, Shores was not deficient in failing to challenge the State's failure to meet its burden of proof on this issue.
4. Counsel's failure to argue cruel and unusual punishment
Marler argues that Shores was ineffective in failing to argue at sentencing that imposition of two hard 25 life sentences would constitute cruel and unusual punishment. Marler contends Shores' failure to raise this issue before the district court prevented the Kansas Supreme Court from considering it on direct appeal. See Marler, 290 Kan. at 127–29. Although Marler makes reference to the Eighth Amendment to the United States Constitution in his issue statement, his analysis focuses entirely on the three part test set forth in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), which is applicable to analyzing cruel and unusual punishment claims under § 9 of the Kansas Constitution Bill of Rights. Therefore, Marler has waived any Eighth Amendment cruel and unusual punishment claims. See State v. Gomez, 290 Kan. 858, 866, 235 P.3d 1203 (2010) (defendant who focuses on Kansas cases and makes only a passing reference to the Eighth Amendment without developing the argument or citing to United States Supreme Court decisions waives Eighth Amendment cruel and unusual punishment argument).
Even if this court accepts Marler's argument that Shores was deficient in failing to challenge the constitutionality of his hard 25 sentences below, in order to prevail on his ineffective assistance of counsel claim, Marler must show that he was prejudiced by Shores' failure to do so. To that end, this court must evaluate whether such an argument would have been successful.
The Kansas Supreme Court has set out a three-part test to be applied by courts in analyzing claims of cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights:
“(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.” Freeman, 223 Kan. at 367.
Under this test, no single factor controls. “ ‘Ultimately, one consideration may weigh so heavy that it directs the final conclusion,’ but ‘consideration should be given to each prong of the test.’ “ State v. Woodard, 294 Kan. 717, 723, 280 P.3d 203 (2012) (quoting State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 [2008] ).
The first prong of the Freeman test requires the district court to consider the nature of the offense and the character of the offender, with particular regard to the degree of danger he or she presents to society. This first factor is “inherently factual, requiring examination of the facts of the crime and the particular characteristics of the defendant.” Ortega–Cadelan, 287 Kan. at 161.
With respect to this factor, Marler argues that he does not represent a threat to society because there is no evidence that he had committed these acts on other occasions or that he fits the profile of a pedophile. Marler also claims that the crimes were not violent and alleges that a punishment of two consecutive life sentences is grossly out of proportion to the crimes.
Marler's argument ignores the depravity of his actions. Rape and aggravated indecent liberties with a child both fall under the definition of “sexually violent” crimes. See K.S.A. 22–3717(d)(2). Additionally, both crimes, when committed against a child under the age of 14, are considered “crimes of extreme sexual violence.” See K.S.A. 21–4716(c)(2)(F)(i)(c). In denying Marler's K.S.A. 60–1507 motion, the district court stated with respect to the first Freeman factor:
“The nature of the offense ... summarily consists of the defendant drugging his twelve year old daughter so that she could not remember him putting a dildo in her vagina, and otherwise generally sexually molesting her. The profoundly harmful actions against his daughter were compounded by the danger he physically placed her in by drugging her, all in pursuit of the satisfaction of his carnal desires, with a view towards knocking her out so she couldn't remember his crimes. Marler's actions represent a total disregard for the very safety and well being of the person, H.M., he was morally obligated to protect. What of those he's not morally obligated to protect? That Marler regarded his drugging of H.M. a humane act, done so she wouldn't have to mentally deal with being molested by her parents, shows how self-absorbed and driven he was to commit these premeditated and calculated acts with no concern for the mental and physical well-being of H.M.
“Marler's character: Marler's criminal history, as set forth in the pre-sentence investigation report, consists of convictions for aggravated assault with a deadly weapon and disorderly conduct.
“Given the nature of the offenses and Marler's character, the degree of danger present to society is great. If Mr. Marler is capable of drugging his own daughter to molest her, what is beyond him ... certainly not aggravated assault with a deadly weapon. From reviewing the entire record in this case, Mr. Marler has no problem justifying any action he has taken, and unapologetically tries on versions of the truth like they were so many hats.
“Mr. Marler is extremely culpable for any moral and mental devastation of his twelve year old daughter. Victims of this kind of sexual abuse typically experience profound mental trauma that play out throughout the victim's lifetime. H.M. appears to be on a predictable path, judging from her victim impact statement: ‘We lost my dad, but we don't want him back the way he was when on meth. I miss the dad I had, not the one that's in jail. I'm very sad and confused, I don't know about [H.M.'s brother] and mom but. we all feel safer.’ H.M. recommended a life sentence.
“It strikes the court that the main penological purpose of the life sentence prescribed by the legislature for ‘Jessica's Law’ offenses must be to protect society, particularly children, from those it cannot realistically hope to rehabilitate. Mr. Marler has not even attempted to show the court any evidence he is amenable to rehabilitation.”
The first Freeman factor relates to the danger posed to society. As our Supreme Court recently stated:
“The legislative intent underlying Jessica's Law is to protect children by removing perpetrators of sexual crimes against children from society. [Citation omitted.] The United States Supreme Court has observed that sex offenders represent a particularly serious threat in this country and that they are more likely than any other type of offender to commit violent crimes following their release. [Citation omitted.] The State therefore has a particularly compelling interest in using incarceration as a means of protecting its youth from sexual offenders.” Woodard, 294 Kan. at 722.
Very significant in this case is the fact that Marler is H.M.'s father. By molesting his own daughter, Marler abusively violated a position of trust that is likely the most valued of any in our society: that of parent to child. See State v. Britt, 295 Kan. 1018, 1033, 287 P.3d 905 (2012) (stepparent's trust relationship with victim supports imposition of life sentence); Woodard, 294 Kan. at 721 (same). Marler's willingness to exploit H.M.'s trust at the expense of her emotional and physical security further suggests a substantial risk to society as a whole and simply cannot be said to operate against the constitutionality of his sentence. Marler's argument under the first Freeman factor fails.
The second Freeman factor directs the court to compare the sentences for rape and aggravated indecent liberties with a child with the sentences for other crimes in this state.
Marler points out that the penalties for certain crimes that involve the death of, or serious injury to, a person are less severe than his hard 25 life sentences. But our Supreme Court consistently has rejected the argument that sex crimes against children must be punished less severely than homicides. See State v. Seward, 296 Kan. 979, 987–88, 297 P.3d 272 (2013); Britt, 295 Kan. at 1033–35;State v. Mossman, 294 Kan. 901, 912–13, 281 P.3d 153 (2012); Woodard, 294 Kan. at 723–24. As a result, Marler's sentence is not disproportionately harsh when compared with the punishments imposed for other offenses in Kansas.
With respect to the third Freeman factor as it relates to the crime of rape, our Supreme Court found in Seward that Kansas does not have the harshest penalty in the nation for the crime of rape committed by an adult against a child younger than 14 Seward, 296 Kan. at 990. Because none of the Freeman factors favor a conclusion that Marler's hard 25 sentence for rape violates § 9 of the Kansas Constitution Bill of Rights, any challenge to this portion of his sentence would fail.
For the crime of aggravated indecent liberties with a child, our Supreme Court in State v. Newcomb, 296 Kan. 1012, 1021, 298 P.3d 285 (2013), accepted for the purposes of argument that Kansas has one of the harshest penalties in the nation for that crime when committed by an adult against a child younger than 14 years of age. The Newcomb court concluded that this resulted in the third factor of the Freeman test favoring the defendant's § 9 challenge to his hard 25 life sentence for aggravated indecent liberties with a child. But the court also concluded that “persuasive force on the third prong does not counterbalance the first and second prongs.” 296 Kan. at 1021. In relation to the first prong, the court pointed to the defendant's decision “to pervert his position of trust and authority as [the victim's] stepfather” as contributing to his placement “at the more culpable end of the spectrum of offenders convicted of aggravated indecent liberties under Jessica's Law.” 296 Kan. at 1021. With regard to the second prong, the court rejected the defendant's argument that sex crimes against children must be punished less severely than homicides. As a result, the court rejected the defendant's argument that his sentence for aggravated indecent liberties with a minor was disproportional under § 9 of the Kansas Constitution Bill of Rights. 296 Kan. at 1021.
The same reasoning is applicable to Marler's case. Even if this court accepts for purposes of argument that Kansas imposes one of the harshest penalties in the nation upon an adult who commits aggravated indecent liberties with a child younger than 14, which would result in the third Freeman factor favoring Marler's sentencing challenge, the persuasive force of the third factor does not outweigh the first and second factors. With respect to the first factor, like the defendant in Newcomb, Marler abused his position of trust and authority as H.M.'s father. Accordingly, Marler's conduct places him “at the more culpable end of the spectrum of offenders convicted of aggravated indecent liberties under Jessica's Law.” See Newcomb, 296 Kan. at 1021. Marler raises the same argument regarding the second Freeman factor that was rejected in Newcomb, and we reach the same conclusion as was reached in Newcomb: Marler's sentence for aggravated indecent liberties with a child does not violate § 9 of the Kansas Constitution Bill of Rights.
In sum, we find no reasonable probability that Marler would have prevailed in arguing that his hard 25 sentences were cruel and unusual under § 9 of the Kansas Constitution Bill of Rights. Because Marler cannot show any prejudice suffered as a result of Shores' failure to raise the issue below, his ineffective assistance of counsel argument on this claim fails as a matter of law.
Affirmed.