Opinion
No. 110858.
2015-03-20
STATE of Kansas, Appellee, v. Raymond E. BARRY, Jr., Appellant.
Appeal from Dickinson District Court; BENJAMIN J. SEXTON, Judge.Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.Daryl E. Hawkins, county attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
Appeal from Dickinson District Court; BENJAMIN J. SEXTON, Judge.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Daryl E. Hawkins, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., POWELL, J., and JOHNSON, S.J. PER CURIAM.
Defendant Raymond E. Barry, Jr., contends the Dickinson County District Court abused its discretion in declining to modify his term of lifetime postrelease supervision after revoking his probation and ordering him to prison to serve a sentence for sexual exploitation of a child, a felony violation of K.S.A. 21–3516. We find no error and affirm.
In 2011, Barry pleaded guilty to one count of sexual exploitation of a child after law enforcement officers found photographs constituting child pornography on his cell phone. Based on his lack of criminal history, Barry was a border-box candidate for probation. The district court sentenced Barry to a prison term of 32 months and placed him on probation for 36 months. As part of the sentence, the district court also imposed a mandatory term of lifetime postrelease supervision that would go into effect if Barry were sent to prison.
The district court twice revoked and reinstated Barry's probation for violations that did not amount to new criminal offenses and for which Barry offered mitigating circumstances. In September 2013, the State filed a third motion to revoke probation on the grounds Barry had failed to find suitable employment, had continually failed to participate in sex offender treatment, and had failed to pay various court costs. Barry stipulated to his lack of employment and his failure to attend the required treatment program. Barry's inability or unwillingness to undertake sex offender treatment apparently had been a chronic problem. The district court revoked the probation and ordered Barry to serve the underlying prison sentence-a ruling Barry does not contest on appeal.
Barry asked the district court to find lifetime postrelease supervision to be cruel and unusual punishment violating the Kansas and United States Constitutions or, in the alternative, to reduce the term of postrelease supervision to 36 months, as permitted by State v. McKnight, 292 Kan. 776, 782–83, 257 P.3d 339 (2011). The district court denied both requests. Barry has timely appealed.
On appeal, Barry contends the district court abused its discretion either by declining to shorten the term of his postrelease supervision, given the circumstances of this case, or by failing to appreciate that it had the legal authority to do so. Barry has not pursued his constitutional challenge. See State v. Williams, 298 Kan. 1075, 1090, 319 P.3d 528 (2014) (upholding lifetime postrelease supervision for conviction of sexual exploitation of child under Eighth Amendment to United States Constitution).
When a defendant admits violating the conditions of probation, the district court's decision to revoke or reinstate is a matter of judicial discretion. See State v. Skolaut, 286 Kan. 219, 228, 182 P.3d 1231 (2008) (citing K.S.A. 22–3716[b] ); State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). A district court exceeds that discretion if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). If a district court fails to recognize it has the authority to take a particular action, the failure to act amounts to an abuse of discretion because the determination falls outside the governing legal framework. See State v. Cisneros, 42 Kan.App.2d 376, 379–80, 212 P.3d 246 (2009).
In McKnight, the court held that under K.S.A. 22–3716(b), a district court revoking a defendant's probation may then “impose any sentence less than that originally imposed,” including a reduction in the term of postrelase supervision. 292 Kan. at 782. At the time of Barry's third probation revocation hearing, the same statutory language appeared in K.S.A.2013 Supp. 22–3716(c)(1)(E). The parties presume, as do we, that the statutory provision, as construed in McKnight, permitted the district court to cut Barry's postrelease supervision to 36 months, as he requested. The parties do not address whether Barry could have been or should have been considered for a lesser sanction, as outlined in K.S.A.2013 Supp. 22–3716(c)(1)(B)–(D). See State v. Kurtz, 51 Kan.App.2d ––––, 340 P.3d 509, 514 (2014) (version of K.S.A. 22–3716 that went into effect July 1, 2103, governs probation violations occurring thereafter). We do not delve into that issue, and it does not directly affect the point Barry has raised on appeal.
At the conclusion of the probation revocation hearing, the district court fairly clearly indicated that it had made a reasoned decision to deny the request for modification of lifetime postrelease supervision because Barry did not attend the sex offender treatment program. Based on that reason and its “great concern” about Barry, the district court found: “[T]he lifetime supervision will not be modified. It will remain as is.” The district court's explanation reflects a deliberate choice between modifying and declining to do so. That phrasing of the ruling would have been exceedingly odd if the district court believed it had no legal authority to modify the duration of the postrelease supervision. We would have expected the district court to articulate that perceived lack of authority as the basis for the ruling.
Our reading of the ruling is also consistent with the argument Barry's lawyer made during the hearing. The lawyer specifically cited McKnight and submitted the district court could shorten a term of postrelease supervision upon revoking the defendant's probation. Nothing in the district court's ruling suggests it rejected that statement of the law. Rather, the district court determined Barry to be undeserving of a reduced term of postrelease supervision based on the nature of the conviction and the probation violations. We, therefore, reject that aspect of Barry's challenge on appeal.
Barry also contends that if the district court understood the breadth of its discretion—and we think the district court did—its choice not to reduce the term amounted to an abuse of that discretion. We cannot agree, especially given the exceptional deference due a district court's decision made within the governing legal principles and with an appreciation of the material facts.
The crime of conviction here involved sexual activity related to children, although Barry had no contact with the children depicted in the pornography he possessed. The ability of persons seeking sexual gratification associated with children to reform their antisocial predilections is less than apparent to either the legal community or the social science community. See Smith v. Doe, 538 U.S. 84, 93, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (“grave concerns” about high rate of recidivism among sex offenders and their “dangerousness as a class” justify rigorous registration requirements); State v. Mossman, 294 Kan. 901, 909–10, 281 P.3d 153 (2012) (finding lifetime postrelease supervision constitutional as applied to defendant convicted of aggravated indecent liberties with a child based, in part, on the high rate of recidivism among sex offenders); State v. Wade, 757 N.W.2d 618, 626 (Iowa 2008) (“Because sex offenders present a special problem and danger to society, the legislature may classify them differently.”). At least some of those offenders may be driven by compulsive behaviors. See Kansas v. Hendricks, 521 U.S. 346, 360, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); State v. Purser, 153 Ohio App.3d 144, 151, 791 N.E.2d 1053 (2003) (noting exceptionally high rate of recidivism among pedophiles and citing congressional report likening their criminal conduct in many instances to compulsion). In this case, Barry chronically failed to participate in sex offender treatment—counseling aimed at curbing the antisocial behavior resulting in his conviction. The district court, therefore, had demonstrable concerns about Barry's ability to conform to the law after his release from prison. An extended period of postrelease supervision would allay those concerns and provide some measure of oversight consistent with public safety.
We are confident other district court judges would have similarly denied the motion to reduce Barry's lifetime postrelease supervision. Accordingly, the district court did not abuse its discretion.
Affirmed.