Opinion
110,590.
11-07-2014
Angelo ORTEGA–CADELAN, Appellant, v. STATE of Kansas, Appellee.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Angelo Ortega–Cadelan appeals from an order denying his K.S.A. 60–1507 motion which challenged his mandatory life sentence without the possibility of parole for 25 years under Jessica's Law. In November of 2007, he pled guilty to raping his 5–year–old stepdaughter. Ortega–Cadelan contends that his sentence is unconstitutional under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment of the United States Constitution. The Kansas Supreme Court, however, has categorically upheld the constitutionality of Jessica's Law. Moreover, we do not find Ortega–Cadelan's case-specific challenge to be persuasive in light of the victim's young age; Ortega–Cadelan's position of authority as stepfather; and the violent and invasive nature of the crime. Thus, we affirm.
Facts
Between November 1, 2006, and November 27, 2006, Ortega–Cadelan—who was 41–years–old—penetrated his 5–year–old stepdaughter's vagina with his penis and ejaculated. On February 26, 2007, he pled guilty to one count of sexual intercourse with a child under the age of 14 in exchange for the opportunity to seek a downward departure at sentencing. Ortega–Cadelan subsequently filed a motion to impose a durational departure. On May 4, 2007, the district court denied his motion and sentenced him to a mandatory life sentence without the possibility of parole for 25 years under K .S.A.2006 Supp. 21–4643(a)(1). In addition, the district court also ordered postrelease supervision for the remainder of Ortega–Cadelan's natural life pursuant to K.S.A.2006 Supp. 22–3717(d)(1)(G).
Ortega–Cadelan directly appealed his sentence arguing that it constituted cruel and unusual punishment under § 9 of the Kansas Constitution Bill of Rights. State v. Ortega–Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008). On November 24, 2008, the Kansas Supreme Court determined that Ortega–Cadelan's was presenting his constitutional claim for the first time on appeal, and, as such, the issue was not properly before the court. 287 Kan. at 161. Finding no abuse of discretion by the district court, the court upheld the district court's denial of Ortega–Cadelan's motion for a downward durational departure sentence and affirmed his sentence. 287 Kan. at 165–66.
On October 30, 2009, Ortega–Cadelan filed a motion pursuant to K.S.A. 60–1507 alleging the same constitutional issue as previously presented in his direct appeal. The district court summarily denied the motion, and Ortega–Cadelan once again appealed. Because the State conceded that the record on appeal was insufficient to determine this issue, it agreed to not contest the filing of a subsequent 60–1507 motion following Ortega–Cadelan's voluntary dismissal of the appeal, which occurred on May 1, 2012.
Ortega–Cadelan filed another K.S.A. 60–1507 motion, together with a memorandum in support of the motion, on May 31, 2012. In the motion, Ortega–Cadelan alleged that his sentence constituted cruel and unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment of the United States Constitution. On October 19, 2012, the district court held a hearing on the motion. During the hearing, the following exchange between Ortega–Cadelan's counsel and the district court took place:
“MR. WHALEN: There are two analyses that the court has. One is the individual finding to the individual case. The second[ ] is proportional. I agree wholly the disproportional issue has been decided by the court.
“THE COURT: So facially it's constitutional? Your real argument is it is unconstitutional as applied in Mr. Ortega-[Cadelan]'s case?
“MR. WHALEN: Correct, your honor
From that point on, Ortega–Cadelan focused his argument on the constitutionality of Jessica's Law as applied to him. After considering the arguments of counsel, the district court took the case under advisement. On January 7, 2013, the district court pronounced its ruling from the bench:
“In support of the movant's claim that his sentence is disproportionate to the crime, the movant asserts: one, that he has no prior criminal history; two, that he had a sex offender evaluation which shows that he's not a repeat offender, and; three, that this incident to which he plead guilty happened only once, and; four, that the movant's evaluator found that he was amenable to treatment and had a high chance of never offending, and; five, that no evidence was presented at sentence[ing] as to any undue harm to the victim.
“The State counters that his sentence is appropriate in light of the following: one, the abuse took place over a significant period of time, at least a month; two, the movant enjoyed a special position of trust as he was the victim's stepfather; three, the victim was extraordinarily young, five years old at the time of the acts.
“In [State v. Woodard, 294 Kan. 717, 280 P.3d 203 (2012),] the Court would note that the Kansas Supreme Court upheld the defendant's sentence of 25 years to life under the following facts: one, the abuse took place over a period of five years; two, the defendant enjoyed a special position of trust as the victim's stepfather; three, the sexual abuse did not stop even after law enforcement intervened; four, the defendant was diagnosed with pedophilia, and; five, the victim complained of nightmares, being afraid of the dark and feeling ‘dirty a lot.’
“While the Court would admit that the facts in Woodard appear worse than those presented here, they're not dissimilar, and the Court cannot conclude that the sentence is disproportional. The State has a strong interest in protecting children, and the victim in this case was very young, only five years old, and had a special relationship with the movant. Furthermore, the acts complained of occurred over a month's time, hardly a onetime event.
“Also, this case involved penile penetration of the victim's vagina, certainly an aggravating factor. In addition, the Court would note that the sentencing court in this particular case did the balancing test of comparing the severity of the sentence with the nature of the crime and found that there were no substantial and compelling reasons to depart.
“Therefore, for all of these reasons and for the reasons set forth in Woodard, the Court finds that the motions, files and records conclusively show that the movant is not entitled to the relief requested....”
On August 28, 2013, the district court entered an order denying the K.S.A. 60–1507 motion, and, thereafter, Ortega–Cadelan timely appealed to this court.
Analysis
Section 9 of the Kansas Constitution Bill of Rights
Ortega–Cadelan initially contends that his life sentence under Jessica's Law, without the possibility of parole for 25 years, violates the prohibitions on cruel or unusual punishments under § 9 of the Kansas Constitution Bill of Rights. It is important to note, however, that Ortega–Cadelan does not raise a categorical challenge to Jessica's Law. Rather, he only claims that the sentence is cruel or unusual punishment as applied to his crime.
When a defendant argues that a sentence is cruel or unusual, we use a bifurcated standard to review the challenge. First, we review the district court's factual findings, without reweighing the evidence to determine if there is substantial competent evidence to support such findings. Second, our review of the district court's legal conclusions is unlimited. See State v. Spear, 297 Kan. 780, 799–800, 304 P.3d 1246 (2013).
Even if a punishment does not rise to the level of cruel or unusual, it is prohibited by § 9 of the Kansas Constitution Bill of Rights “ ‘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.’ “ Spear, 297 Kan. at 799 (citing State v. Gomez, 290 Kan. 858, Syl. ¶ 9, 235 P.3d 1203 [2010] ). In Kansas, we consider the three Freeman factors to determine whether a punishment is impermissibly disproportionate:
“ ‘(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.' “ Spear, 297 Kan. at 799 (citing State v. Freeman, 233 Kan. 362, 367, 574 P.2d 950 [1978] ).
As the Kansas Supreme Court noted in Ortega–Cadelan's direct appeal, none of the Freeman factors is controlling, but “one consideration may weigh so heavily that it directs the final conclusion.” Ortega–Cadelan, 287 Kan. at 161. Furthermore, it is important to note that the first Freeman factor is not a threshold determination. Instead, we are to take a “holistic approach” in applying the Freeman factors. State v. Seward, 296 Kan. 979, 985, 297 P.3d 272 (2013).
In analyzing the first Freeman factor, we note that Ortega–Cadelan was charged with the following: “[O]n or between the 1st day of November, 2006 and the 27th day of November, 2006, [Ortega–Cadelan] did then and there unlawfully, commit an act of sexual intercourse with F.M., a child under fourteen (14) years of age, to wit: five years of age.” Ortega–Cadelan contends that this crime was committed only once and that it was his first offense. However, sentences under Jessica's Law have been upheld by both the Kansas Supreme Court and panels of this court in cases involving a single sexual act with a child. See State v. Toahty–Harvey, 297 Kan. 101, 109, 298 P.3d 338 (2013) ; State v. Frost, 48 Kan.App.2d 332, 342, 288 P.3d 151 (2012), rev. denied October 1, 2013; State v. Gilliland, No. 109,046, 2014 WL 1302616, at *11 (Kan.App.2014) (unpublished opinion), petition for rev. filed April 28, 2014.
A review of the record on appeal reveals that Ortega–Cadelan—a 41–year–old male—used his penis to penetrate the vagina of a 5–year–old girl who had no ability to consent to such activity. Furthermore, as the victim's stepfather, Ortega–Cadelan held a position of trust and authority over her. As Ortega–Cadelan admitted at the sentencing hearing, this was a “horrible crime” involving a particularly young victim.
Ortega–Cadelan suggests that because his conduct could have been more egregious, the nature of his offense should be considered less violent. The Kansas Supreme Court, however, has rejected the argument that simply because a defendant could have committed a rape “more violently does not mean [it is] not violent in [its] most basic form, particularly when committed against an especially vulnerable victim.” Seward, 296 Kan. at 986 ; see also State v.. Newcomb, 296 Kan. 1012, 1018, 298 P.3d 285 (2013) (“That a sexually violent crime could have been committed more violently is legally insignificant.”).
Next, Ortega–Cadelan claims that he is a “good candidate” for treatment and not likely to reoffend if he were to receive treatment. Although he refers to an evaluation, he fails to cite to the record on appeal. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012) (“The party claiming an error occurred has the burden of designating a record that affirmatively shows prejudicial error.”). Even if this court assumes that Ortega–Cadelan has the potential to benefit from treatment, these types of crimes have a high rate of recidivism and the State has a “particularly compelling interest” to protect children by incarcerating those who commit sexual crimes against children. Seward, 296 Kan. at 986–87.
By definition, the Kansas Legislature has categorized rape of a child under 14 as a “crime of extreme sexual violence.” K.S.A.2013 Supp. 21–6815(c)(2)(F)(i)(c). And, the Kansas Supreme Court has found that “sex offenses against minors are ‘considered particularly heinous crimes,” ’ and “it is generally recognized that society has a penological interest in punishing those who commit sex offenses against minors because they ‘present a special problem and danger to society’ and their actions produce ‘particularly devastating effects' on victims, including physical and psychological harm.” State v. Mossman, 294 Kan. 901, 909, 281 P.3d 153 (2012).
Although Ortega–Cadelan cites to United States Bureau of Justice statistics as authority for his proposition that recidivism rate among offenders who have sexually molested children is not high, his source undermines his argument as much as it supports it. According to the statistics cited by Ortega–Cadelan, “[c]ompared to non-sex offenders released from State prisons, released sex offenders were 4 times more likely to be rearrested for a sex crime”; and sex offenders were more than twice as likely commit another sex crime against a child when compared to non sex offenders. U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Sex Offenders Released from Prison in 1994, p. 1 (1994) (available at http://www.bjs.gov/content/pub/pd7/rsorp94.pdf).
Notwithstanding Ortega–Cadelan's claims to the contrary, society has expressed “ ‘grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. That the risk of recidivism posed by sex offenders is “frightening and high.” ‘ “ State v. Breeden, 297 Kan. 567, 589–90, 304 P.3d 660 (2013) quoting, Smith v. Doe, 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 [2003] ; McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 [2002] ). Thus, we find that the first Freeman factor weighs against Ortega–Cadelan.
Turning to the second and third Freeman factors, we note that Ortega–Cadelan acknowledges that the Kansas Supreme Court has already found that the penalty for rape is not disproportionate when compared to other punishments for other offenses in Kansas and neither is it disproportionate when compared to punishments in other jurisdictions. Despite this acknowledgment, he attempts to rehash the importance of the Kansas Sentencing Commission Proportionality Subcommittee report. Once again, the issue has already been decided by the Kansas Supreme Court. See Seward, 296 Kan. at 988 (“When the legislature fails to adopt a recommendation of the Sentencing Commission, it is not for this court to evaluate or criticize.”).
In Woodard, the Kansas Supreme Court concluded that Jessica's Law is not disproportionately harsh when compared with the punishments imposed for other offenses in Kansas. 294 Kan. at 724. Likewise, our Supreme Court concluded in Woodard that Jessica's Law was “not out of line with other jurisdictions.” 294 Kan. at 725. This position was subsequently reiterated in Steward. 296 Kan. at 988–89. Thus, we find that neither the second nor third Freeman factor weighs in favor of Ortega–Cadelan.
We, therefore, conclude that Ortega–Cadelan has failed to establish that his sentence violated § 9 of the Kansas Constitution Bill of Rights.
Eighth Amendment
Ortega–Cadelan next contends that his sentence violates the Eighth Amendment to the United States Constitution. There are two types of proportionality challenges under the Eight Amendment: case-specific and categorical. See Mossman, 294 Kan. at 925. It appears that Ortega–Cadelan is attempting to present both a categorical and case-specific challenge to his sentence. At the hearing on his K.S.A. 60–1507 motion, however, Ortega–Cadelan agreed that the categorical issue has been decided. Thus, we find that Ortega–Cadelan has waived the issue at the district court level. See State v. Torres, 280 Kan. 309,321, 121 P.3d 429 (2005).
The Kansas Supreme Court has found that the “analysis of a § 9 challenge under the Freeman factors ‘applies with equal force’ to a case-specific Eighth Amendment challenge.” Seward, 296 Kan. at 990 (quoting State v. Ross, 295 Kan. 424, 429, 284 P.3d 309 [2012] ). As more fully set forth above, the rape victim in this case was particularly young—only 5 years old. Moreover, as the victim's stepfather, Ortega–Cadelan held a special relationship of trust over her, which he clearly exploited to her detriment. Furthermore, rape is inherently an “extremely invasive offense[ ] constituting great bodily harm.” State v. Gideon, 257 Kan. 591, 614, 894 P.2d 850 (1995). Thus, we find that the severity of the punishment imposed on Ortega–Cadelan was not disproportionate to his crime.
We, therefore, conclude that Ortega–Cadelan's sentence did not violate the Eight Amendment prohibition against cruel or unusual punishments.
Affirmed.