Opinion
No. 108,171.
2013-08-9
STATE of Kansas, Appellee, v. David BREWER, Appellant.
Appeal from Johnson District Court; Peter V. Ruddick, Judge. Ryan Eddinger and Deborah Hughes, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Peter V. Ruddick, Judge.
Ryan Eddinger and Deborah Hughes, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
David Brewer appeals his hard 25 life sentence under Jessica's Law, which the district court imposed. after he pled guilty to one count of aggravated indecent liberties with a child. Brewer argues that his due process rights were violated when the district court considered information at the sentencing hearing regarding allegations made by other victims whose charges had been dropped in plea negotiations. We find no due process violation because (1) a district court can consider any circumstance providing a more complete and accurate picture of the defendant's background, history, or behavior as long as the information is reliable, accurate, and trustworthy and (2) Brewer had an opportunity to rebut the evidence. Thus, we affirm Brewer's sentence.
Facts
In an initial complaint filed on December 31, 2009, the State charged Brewer with one count of rape and one count of aggravated indecent liberties, with both charges involving the same victim. An amended complaint filed on March 25, 2010, charged Brewer with one count of rape, three counts of aggravated indecent liberties, one count of aggravated criminal sodomy, and one count of aggravated indecent solicitation. There were two additional victims alleged in the amended complaint.
Brewer waived his right to a preliminary hearing and subsequently entered into a plea agreement. Under the terms of the plea agreement, Brewer agreed to plead guilty to one of the aggravated indecent liberties charges in exchange for the State dismissing the remaining charges. Moreover, according to the plea agreement, the question of disposition remained open. Thereafter, Brewer pleaded guilty to one count of aggravated indecent liberties, and the district court dismissed the remaining counts.
Prior to sentencing, Brewer filed a motion for a downward durational departure sentence, requesting that the court impose a 108–month prison sentence instead of the statutory hard 25 life sentence under K.S.A. 21–4643. In support of his departure motion, Brewer argued that he had taken responsibility for and had strong feelings of remorse about his actions. He pointed out that an evaluation performed by Dr. Stanley Mintz characterized his chances of reoffending as low to moderate. Brewer also asserted that his lack of violence or criminal history resulted in substantial and compelling reasons to downwardly depart.
On October 19, 2011, the district court held a sentencing hearing. At the hearing, the district court also considered Brewer's departure motion. In support of the motion, defense counsel provided the district court with a copy of Dr. Mintz' report and argued that Brewer should receive a departure sentence because he took responsibility for his actions, confessed to the detectives early on, and showed remorse. Defense counsel also argued that Brewer waived his right to a preliminary hearing and trial so the victim would not need to testify. Additionally, it was argued that Brewer would have a criminal history score of I if his crime was on the sentencing grid, that Brewer's crime was not violent, that Brewer did not threaten or coerce the victim, and that there was no weapon involved. Further, Brewer read a statement to the court in which he stated that he was remorseful.
The State argued against the departure motion by pointing out that Brewer had already received a benefit—dismissal of multiple charges—by entering into the plea agreement. In addition, the mother of one of the alleged victims whose charges were dismissed under the plea agreement made a statement to the court, asking that Brewer serve a life sentence. The State also read statements from Brewer's ex-wife and the grandfather of the victim of the pleaded charges, who described how Brewer's actions had negatively affected their lives.
After reviewing the presentence investigation (PSI) report, listening to the statements, and considering the arguments of counsel, the district judge denied Brewer's departure motion, concluding as follows:
“Mr. Brewer presents as a pretty pathetic individual, but that isn't a reason to depart. The defense side is acting like this occurred in a vacuum. State's position is he is a repeat offender. I am a little perplexed at how we got to that point, but I am not going to disregard the comments about other victims, particularly from [the mother who made a statement at the hearing], and at least the appearance that this is not a single event and there are in fact a couple other victims. And, you know, maybe that puts us on tough legal ground here because I know Mr. Brewer did not enter a plea of guilty to those other charges, but I can't honestly sit here and make a ruling here without at least considering that possibility.
“And it cuts against Dr. Mintz' assessment, it cuts against the defendant's personal comments and it cuts against any thought there are mitigating factors here that would justify a departure. I don't think any such mitigating factors have been set forth here. Essentially I guess I agree with the State that this is the kind of case that the legislature had in mind when it passed the law making this an off-grid life sentence case, and I am not going to depart from that presumption.” (Emphasis added.)
After denying the motion for a downward durational departure, the district court sentenced Brewer to a hard 25 sentence under Jessica's Law.
Analysis
Due Process
Brewer contends that the district court failed to provide him due process when denying his departure motion. He does not argue that the district court erred in finding that his reasons for the departure motion were not substantial and compelling. Instead, Brewer alleges the district court denied him due process at the sentencing hearing by considering the allegations made by the other victims identified in the amended petition.
We exercise unlimited review when determining whether actions violated a defendant's due process rights. See State v. Easterling, 289 Kan. 470, 475, 213 P.3d 418 (2009). Moreover, a hard 25 life sentence for an off-grid crime is challengeable on appeal because it does not meet the K.S.A. 21–4703(q) definition of a presumptive sentence. See State v. Ortega–Cadelan, 287 Kan. 157, 163–64, 194 P.3d 1195 (2008).
The State contends that we should not consider Brewer's due process argument because he failed to raise the issue before the district court. As a general rule, issues not raised before the district court cannot be raised for the first time on appeal. See State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). Even constitutional grounds raised for the first time on appeal are not property before an appellate court for review. See State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012).
There are, however, exceptions to the general rule. Specifically, an appellate court may consider an issue for the first time on appeal when (1) the issue involves only a question of law arising on proved or admitted facts and would be finally determinative of the case; (2) consideration of the issue is necessary to serve the ends of justice or prevent a denial of fundamental rights; and (3) a judgment of the district court may be upheld on appeal despite its reliance on the wrong ground or reason for its decision. See State v. Anderson, 294 Kan. 450, 464–6:5, 276 P.3d 200 (2012). In his initial brief, Brewer does not argue that any of these exceptions apply.
In his reply brief, Brewer contends for the first time that we should consider the issue presented on appeal because it involves a question of law and it would serve the ends of justice. Although we recognize that this is a close call, we will consider the issue presented because our review of issues involving due process rights is unlimited. See Easterling, 289 Kan. at 475 (applying unlimited review to due process challenge).
When considering a downward durational departure motion in a Jessica's Law case, a sentencing court has discretion to consider any circumstance that provides a more complete and accurate picture of the defendant's background, history, or behavior. The use of such information does not by itself violate a defendant's due process rights. 289 Kan. at 481–82; see K.S.A. 21–4643(d). But “[t]he Due Process Clause of the Fourteenth Amendment to the United States Constitution requires a sentencing court to assure itself that the information upon which it relies to establish a sentence is reliable and accurate and to ensure that the defendant has been given an effective opportunity to rebut the allegations likely to affect his or her sentence.” 289 Kan. 470, Syl. ¶ 1; see State v. Garza, 290 Kan. 1021, 1034–35, 236 P.3d 501 (2010).
In Easterling, the defendant entered into a plea agreement in which he agreed to plead guilty to two counts of aggravated indecent liberties with a child under the age of 14. In exchange for the plea, the State agreed to recommend a downward durational departure from the sentence mandated by K.S.A. 21–4643 (Jessica's Law) to a term of 118 months in prison. At the sentencing hearing, the district judge refused to grant a departure and imposed a hard 25 life sentence under K.S.A; 21–4643. In pronouncing its decision, the district court mentioned a law enforcement officer's arrest report affidavit suggesting that the defendant had admitted to sexually abusing his daughter in the 1980's.
On appeal, the defendant in Easterling argued that the district court's reliance on the arrest report affidavit at sentencing violated his constitutional right to due process. He contended that he had no opportunity to challenge the affidavit's contents and that the State needed to prove the contents by a preponderance of the evidence. In affirming the sentence, the Kansas Supreme Court recognized that a sentencing court has discretion to consider any circumstance providing a more complete and accurate picture of the defendant's background, history, or behavior as long as the information is reliable, accurate, and trustworthy and the defendant has an opportunity to rebut the evidence. 289 Kan. at 481–82; see K.S.A. 21–4643(d)(4). Finding that the defendant had been provided with proper notice and a meaningful opportunity to be heard, the Kansas Supreme Court concluded that the mandates of the Due Process Clause had been followed by the district court. 289 Kan. at 484–85.
In the present case, Brewer's due process argument is not as specific as the arguments made by the defendant in Easterling. Brewer does not argue that the district court failed to provide due process by ensuring that the information it relied on was reliable, accurate, and trustworthy. Nor does Brewer argue that he had no opportunity to rebut the information presented at the sentencing hearing. Instead, Brewer simply argues that his due process rights were violated because the district court considered the allegations involving other victims. But, as indicated above, a district court can consider unproven allegations without necessarily violating due process. See 289 Kan. at 483–84.
Prior to the sentencing hearing, Brewer was provided with the PSI, which included information regarding all three victims identified in the amended complaint. After receiving the PSI, Brewer did not object to it, nor did he request a continuance. See Morton v. State, No. 107,036, 2012 WL 3630279, at *5–6 (Kan.App.2012) (unpublished opinion) (finding no due process violation when district court considered factual statement in PSI when determining defendant's sentence). Likewise, Brewer did not object when the State brought up the other allegations or when the mother of one of the other victims was allowed to speak at the sentencing hearing.
The district court allowed Brewer an opportunity at the sentencing hearing to present arguments and evidence in support of his motion for a downward durational departure. But Brewer never challenged the State's argument that there had been two other victims. Even though the district court gave Brewer a chance to object to the court's consideration of other uncharged crimes, he failed to do so. Additionally, Brewer and his attorney were allowed to address the court. And after the other victim's mother, Brewer's ex-wife, and the victim's grandfather had given statements to the court, Brewer's attorney had another opportunity to address the court. Thus, we conclude that the notice and opportunity to be heard—or to rebut the statements regarding other victims—adequately protected his constitutional right to due process.
Finally, it is important to note that the district court refused to treat Brewer as a repeat offender as the State had argued. Rather, the court simply stated that it could not ignore the information regarding the other victims. Furthermore, in pronouncing its decision, the district court concluded that there were no mitigating factors to justify a downward durational departure and that this was the type of case in which the legislature intended the imposition of the hard 25 life sentence. We, therefore, conclude that the district court provided Brewer with a method by which he could be effectively heard as required by the Due Process Clause. Moreover, we find that the district court's decision to impose a hard 25 sentence under Jessica's Law was appropriate under the circumstances presented.
Affirmed.