Opinion
No. 106,080.
2013-02-8
STATE of Kansas, Appellee, v. Alfredo ARIZMENDI, Appellant.
Appeal from Ford District Court; Daniel L. Love, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. David Belling, deputy county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; Daniel L. Love, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. David Belling, deputy county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and DANIEL L. HEBERT, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Alfredo Arizmendi pled no contest to two counts of aggravated indecent liberties with a child and was found guilty. The district court sentenced Arizmendi to 59 months in prison on each count, with the sentences to run concurrently, followed by the statutorily-mandated lifetime postrelease supervision. Arizmendi appeals his sentence, contending that lifetime postrelease supervision is cruel and unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights. We conclude that Arizmendi's constitutional arguments are not supported by the facts in this record and affirm the district court's imposition of lifetime postrelease supervision.
Facts
In January 2010, law enforcement became aware that Arizmendi had been having sexual intercourse with his 14–year–old stepdaughter in their home in Ford County, Kansas. When interviewed, the victim stated that Arizmendi had been having sex with her for the past 6 years.
The State first charged Arizmendi with one count of aggravated indecent liberties with a child in February 2010 and later added another count of aggravated indecent liberties with a child and two counts of indecent liberties with a child. Pursuant to a plea agreement, Arizmendi pleaded no contest to and was convicted of two counts of aggravated indecent liberties with a child in violation of K.S.A. 21–3504(a)(l), a severity level 3 person felony.
Arizmendi then filed a motion to declare lifetime postrelease supervision unconstitutional because it violates the prohibition against cruel and unusual punishment of § 9 of the Kansas Constitution Bill of Rights and the right to due process under the 6th and 14th Amendments to the United States Constitution. In that motion, Arizmendi listed the three factors from State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), that the court needs to consider in determining if a sentence violates the constitutional provision against cruel and unusual punishment. Arizmendi then stated in his motion: “In this case, we need to focus on the second prong of the Freeman test, where more severe crimes are being punished the same way,” and only made arguments relating to that factor.
The State filed a response to Arizmendi's motion. Arizmendi then filed a supplemental motion which focused solely on the third factor of the Freeman test regarding how other jurisdictions punish similar conduct.
The district court held part of the sentencing hearing on June 8, 2010, and postponed sentencing on the postrelease term. On September 28, 2010, the district court heard arguments on Arizmendi's motions and proceeded with the second part of the sentencing hearing. Arizmendi's attorney argued that the “issues—or the case that deals with cruel and unusual punishment is the Freeman case, specifically the second and third prongs of that comparison for punishments in this case, post-release for other cases in this jurisdiction.” The district court denied Arizmendi's motion “[i]n light of the fact that other states and other jurisdictions have approved lifetime post-release supervision durations.” The district court also noted that laws passed by a state are presumed to be constitutional.
The district court sentenced Arizmendi to 59 months in prison on each count, with the sentences to run concurrently, and a lifetime postrelease supervision term.
Analysis
Arizmendi argues sentencing him to lifetime postrelease supervision without the possibility of release or discharge as required by K.S.A.2009 Supp. 22–3717(d)(l)(G) is grossly disproportionate to his convictions and violates § 9 of the Kansas Constitution Bill of Rights. We begin our analysis of Arizmendi's argument by reviewing the applicable statutes.
• A person who is convicted of a sexually violent crime in Kansas shall, upon release from prison, serve a period of postrelease supervision for the duration of his or her life. K.S.A.2009 Supp. 22–3717(d)(1)(G).
• Aggravated indecent liberties with a child, the crimes of conviction in this case, is statutorily defined as a sexually violent crime. K.S.A.2009 Supp. 22–3717(d)(2)(C).
• When a person's postrelease supervision is revoked based on the commission of a new felony, such person “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.” K.S.A.2009 Supp. 75–5217(c).
As a result of these statutes, Arizmendi is subject to mandatory lifetime postrelease supervision upon the completion of his prison term, and he faces possible return to prison for life if his postrelease supervision is revoked based on the commission of a new felony or misdemeanor. It is this possibility of receiving a sentence of life in prison that provides the basis for Arizmendi's claim that lifetime supervised release is grossly disproportionate to his convictions and thus unconstitutional.
When determining whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights, a district court must make both legal and factual determinations. On appeal, the appellate court applies a bifurcated standard of review: All of the evidence is reviewed, but not reweighed, to determine whether it is sufficient to support the district court's factual findings, but the legal conclusions that the district court draws from those facts are reviewed de novo. State v. Mossman, 294 Kan. 901, Syl. ¶ 1, 281 P.3d 153 (2012).
A statute is presumed 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 authority and the duty to do so. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009).
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.
Notably, the Supreme Court recently addressed the second and third Freeman factors as they relate to lifetime postrelease supervision for an offender convicted of a sexually violent crime. The court held that such a sentence is not constitutionally disproportionate to the sentences imposed for other, possibly “more serious,” crimes in Kansas and is not disproportionate to the punishments imposed in other jurisdictions for similar offenses. Mossman, 294 Kan. at 918–21;State v. Cameron, 294 Kan. 884, Syl. ¶ 1, 281 P.3d 143 (2012).
Although the briefs in this matter were filed before the Mossman and Cameron decisions were issued, Arizmendi submitted two Rule 6.09 letters of additional authority acknowledging the recent rulings. Nevertheless, Arizmendi urges this court to reject the Supreme Court's holdings on grounds that the court's analysis of the second and third Freeman factors was flawed because it failed to discuss and/or minimized the possibility of receiving a sentence of life in prison upon revocation of supervised release as required under K.S.A.2009 Supp. 75–5217(c). But the Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). We find no such indication here.
This leaves us with the first prong of the Freeman test, which 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.” State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). In this case, however, the district court did not make findings of fact and conclusions of law regarding this fact-specific, first Freeman factor. Although the court noted at sentencing that it had read an investigative report and the record reflects that a statement from the victim, a statement from the victim's mother, and a transcript of the forensic interview with the victim were introduced as evidence at sentencing, the court failed to make any factual findings regarding the significance of this evidence.
Appellate courts do not make factual findings but are limited to reviewing those made by district courts; thus, in the absence of any factual findings related to the first Freeman factor, we do not have the necessary factual basis upon which to analyze whether Arizmendi's sentence is grossly disproportionate to his convictions. See State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009) (refusing to rule on the merits of a cruel and unusual punishment challenge where the district court did not make any factual findings under the Freeman test).
Perhaps anticipating our conclusion that the district court's failure to make any factual findings on the first Freeman factor precludes us from deciding whether Arizmendi's sentence is grossly disproportionate to his convictions, Arizmendi argues the case should be remanded so the district court can make those findings. In so arguing, Arizmendi relies on State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009).
In Seward, our Supreme Court addressed an Eighth Amendment challenge to a lifetime postrelease supervision sentence for a rape and an aggravated criminal sodomy conviction under Jessica's Law. Like here, the district court did not make findings relating to one or more of the Freeman factors. The Supreme Court recognized that it is not the appellate court's role to make factual findings but instead it is limited to reviewing those findings made by the district courts. Although it ultimately remanded the case to the district court for factual findings, the Supreme Court cautioned it was only the unique circumstances of the case that made it willing to overlook Seward's failure to file a motion under Supreme Court Rule 165 (2012 Kan. Ct. R. Annot. 262) to compel adequate findings of facts and conclusions of law in the district court.
“In view of the tension produced by these authorities, the newness of the constitutional issues raised by Jessica's Law, and our recognition that 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 enable her 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.” Seward, 289 Kan. at 721.
Thus, Seward makes clear that a defendant who wants to pursue a constitutional challenge on appeal 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, Arizmendi was sentenced in September 2010, after Seward was filed on October 2, 2009. Arizmendi could have requested that the district court make the appropriate findings and conclusions required by Supreme Court Rule 165 before pressing forward with this appeal. It was incumbent on Arizmendi 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, Arizmendi's constitutional challenge fails, and we affirm the district court's imposition of lifetime postrelease supervision.
Affirmed.