Opinion
No. 104,797.
2013-04-5
STATE of Kansas, Appellee, v. Jason CLAY, Appellant.
Appeal from Saline District Court; Daniel L. Hebert, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Daniel L. Hebert, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this appeal, Jason Clay contends that the imposition of lifetime postrelease supervision following his conviction of sexual exploitation of a child constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.
Facts
Clay originally was charged with five counts of sexual exploitation of a child, contrary to K.S.A. 21–3516(a)(2), a severity level 5 person felony. These charges were based on the following facts. On July 29, 2009, Ruby Coffel advised the Salina Police Department that after letting Clay borrow her cell phone, she found several photographs of naked girls she believed to be under the age of 18 on the phone. Clay admitted that the photos were his and that he had met the girls on Facebook. The phone contained messages from one of the girls, as well as several photos of the girls exposing their bras, underwear, breasts, buttocks, and vaginas. The girls in the photos appeared to be between the ages of 14 and 18. Following an investigation, police located and identified one of the girls as C.S.S.C.S.S. advised that she met Clay on Urbanchat.com. She admitted that she sent him photographs but could not remember exactly what photographs she sent. Another girl was identified as S.R. S.R. admitted that she had taken photos of herself and sent them to several people, but she denied knowing Clay or sending the photos to anyone in Salina.
Clay ultimately pled guilty to an amended complaint charging him with one count of sexual exploitation of a child and one count of contributing to a child's misconduct, contrary to K.S.A. 21–3612(a)(1), a class A nonperson misdemeanor. In exchange, the State agreed not to file any additional cases. The parties jointly agreed to recommend that Clay serve a 9–month sentence on the misdemeanor charge and to recommend a dispositional departure to probation on the felony sexual exploitation charge. At the plea hearing, Clay acknowledged that he could face a period of lifetime postrelease supervision.
Prior to sentencing, Clay filed a motion challenging the imposition of lifetime postrelease supervision under K.S.A, 2009 Supp. 22–3717 as unconstitutional.
Clay argued that imposition of lifetime postrelease supervision constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. Clay cited State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), in which the Kansas Supreme Court outlined three factors for analyzing cruel or unusual punishment claims under the Kansas Constitution. Clay argued that lifetime postrelease supervision was arbitrary and disproportionate because it is inflicted the same on severity level 7 to severity level 1 sex offenders regardless of their criminal history and was disproportionate as applied to him because his criminal history contained only one prior nonperson felony and he was only 22 years old. Clay cited the presumptive postrelease supervision period for more serious offenses that had shorter periods of postrelease supervision and argued that lifetime postrelease supervision is disproportionate to parole terms for more serious sex and murder offenses in Kansas and disproportionate to defendants with more serious criminal records. Clay also cited comparable laws in other jurisdictions which do not have lifetime terms of postrelease supervision.
The district court denied Clay's motion challenging the imposition of lifetime postrelease supervision. At the sentencing hearing, Clay indicated his desire to preserve the lifetime postrelease supervision issue for appeal. Thereafter, the court granted a dispositional departure on the felony charge, sentencing him to a 36–month term of probation with an underlying sentence of 41 months' imprisonment and lifetime postrelease supervision. The court also imposed a 9–month jail sentence on the misdemeanor charge and ordered Clay to serve the jail sentence prior to the start of the probation period.
Analysis
Clay contends that the imposition of lifetime postrelease supervision for his conviction of sexual exploitation of a child was grossly disproportionate to the seriousness of the crime and asserts that this part of his sentence is cruel and unusual punishment under the Eighth Amendment and § 9 of the Kansas Constitution Bill of Rights. Clay argues that lifetime postrelease supervision is disproportionate based (1) on the circumstances of his particular case and (2) categorically disproportionate for first-time sex offenders convicted of possessing pornographic images of persons under age 18. We begin our analysis of Clay's argument by reviewing the applicable statutes.
K.S.A.2009 Supp. 22–3717(d)(1)(G) provides that an offender convicted of a sexually violent crime shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life. Sexual exploitation of a child is a sexually violent crime. K.S.A.2009 Supp. 22–3717(d)(2)(H). As a result, Clay is subject to mandatory lifetime postrelease supervision, 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 Clay's claim that lifetime postrelease supervision is grossly disproportionate to the seriousness of the crime of conviction and therefore is unconstitutionally cruel and unusual punishment under the Eighth Amendment and § 9 of the Kansas Constitution Bill of Rights. Case-specific proportionality challenge
In his first issue on appeal, Clay raises a case-specific challenge to his sentence of lifetime postrelease supervision, i.e ., he argues that lifetime postrelease supervision is grossly disproportionate under the circumstances of his case and is therefore unconstitutional. The State contends that the opposite is true and that lifetime postrelease supervision is not unconstitutionally disproportionate here.
The Eighth Amendment, which the Fourteenth Amendment made applicable to the states, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Likewise, § 9 of the Kansas Constitution Bill of Rights states: “All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”
Appellate review of a determination on whether a sentence is cruel or unusual under the Kansas Constitution Bill of Rights involves reviewing the district court's legal and factual determinations. Our Supreme Court has stated that “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. Ross, 295 Kan. 424, 425–26, 284 P.3d 309 (2012). Courts presume a statute is constitutional and must interpret a statute as constitutional if there is any reasonable construction that would maintain the legislature's apparent intent. State v. Gaona, 293 Kan. 930, 958, 270 P.3d 1165 (2012).
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 issued two decisions after the briefs in this matter were filed that addressed the second and third Freeman factors as they relate to lifetime postrelease supervision for offenders convicted of sexually violent crimes. More specifically, the court held that such sentences are not constitutionally disproportionate to the sentences imposed for other, possibly “more serious,” crimes in Kansas and are not disproportionate to the punishments imposed in other jurisdictions for similar offenses. State v. Mossman, 294 Kan. 901, 912–21, 281 P.3d 153 (2012); State v. Cameron, 294 Kan. 884, Syl. ¶ 1, 281 P.3d 143 (2012). Of course, we are 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. –––– (May 4, 2012).
Thus, we are left 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).
“When conducting an Eighth Amendment analysis to determine whether a sentence for a term of years is grossly disproportionate under the circumstances of a particular defendant's crime, a court initially compares the gravity of the offense with the severity of the sentence. This analysis may consider the offender's mental state and motive in committing the crime, the actual harm caused to the victim or to society by the offender's conduct, any prior criminal history of the offender, and the offender's propensity for violence. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, the court then [considers the second and third Freeman factors].” Ross, 295 Kan. at 428–29.
In this case, however, the district court did not make findings regarding this fact-specific first Freeman factor. In denying Clay's motion challenging the imposition of lifetime postrelease supervision, the district court judge stated:
“Well, while, you know, the case law has clearly said that postrelease is part of the, quote, punishment, the actual sentences for those cases are, for the various cases certainly reflect the varying degrees of significance of seriousness assigned by the legislature, and certainly is not a, quote, one size fits all sentence, as the base sentence. In this case, I'd say in this case, or the problem with the law is as you say should be fact driven, not simply law driven, but in this case I think it's a close call. But I'm certainly not in a position under the circumstances of this case to conclude that the lifetime supervision is unconstitutional as applied to this crime in this case. It's not wholly disproportionate, it does serve a penalogical purpose. The defendant not only violated his responsibilities as an adult to minor children but he also violated the public trust and misuse of the privileges, telecommunication, and there are all sorts of social ramifications on both of those sort of things that are appropriately addressed by the legislature. I believe that the disparity issue is addressed by the differing underlying sentences as opposed to focusing solely on the postrelease supervision. And, finally, in this case as in another case which came before the Court earlier where a dispositional departure was agreed to and granted, the future is wholly in the defendant's [hands]. If he conforms his conduct he's got nothing to worry about. If, in this particular case, if he conforms his conduct for, to the rules of society for the period of probation he will have served his sentence and the question will become moot. So, you know, I think what the legislature is doing here is saying like all good citizens your future is in your hands and just don't go out and commit any more felonies. If you do there are consequences.”
The district court's ruling did little more than give the first Freeman factor a passing reference—it did not discuss the facts of the crime, the nature of the offense, the penological purposes of lifetime postrelease supervision, Clay's mental state or motive in committing the crimes, any harm caused to the victims, Clay's prior criminal history, or Clay's propensity for violence. See Ross, 295 Kan. at 428–29;Freeman, 223 Kan. at 367.
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 Clay's sentence is grossly disproportionate to his conviction. 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 Clay's sentence is grossly disproportionate to his conviction, Clay argues the case should be remanded so the district court can make those findings. In so arguing, Clay 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 rape and aggravated criminal sodomy convictions 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 an 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 (2008 Kan. Ct. R. Annot. 235) 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.
See Supreme Court Rule 165 (2012 Kan. Ct. R. Annot. 262).
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 [the Supreme Court] had made it clear [in Seward ] that a defendant would have the duty to ensure adequate findings of fact.” Unlike in Berriozabal, Clay was sentenced in June 4, 2010, after Seward was filed on October 2, 2009. Clay 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 Clay 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, Clay's constitutional challenge fails, and we affirm the district court's imposition of lifetime postrelease supervision. Categorical proportionality challenge
In his second issue on appeal, Clay raises a constitutional challenge to lifetime postrelease supervision, contending that it is cruel and unusual punishment when imposed for the class of crime he committed. The State asserts we cannot consider this categorical challenge on appeal because Clay did not raise it before the district court. Generally, constitutional issues cannot be raised for the first time on appeal. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). There are three exceptions to this general rule, allowing consideration where (1) the newly asserted claim involves only a question of law and determines the case, (2) serving the ends of justice or preventing the denial of fundamental rights requires consideration of the claim, or (3) the district court was right for the wrong reason. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010).
In Gomez, the defendant argued for the first time on appeal that his sentence was disproportionate and therefore constituted cruel and/or unusual punishment under both the Eighth Amendment and § 9 of the Kansas Constitution Bill of Rights. The Kansas Supreme Court ultimately determined that the factors assessed in a categorical proportionality challenge are not case-specific and generally raise questions of law. 290 Kan. at 866. Under the first exception to the general rule that an issue cannot be raised for the first time on appeal, the court determined that a categorical proportionality challenge under the Eighth Amendment may in certain circumstances be raised for the first time on appeal. 290 Kan. at 866. Consistent with our Supreme Court's discussion in Gomez, we conclude that Clay's categorical proportionality challenge under the Eighth Amendment raises only questions of law that are determinative of the case and thus may be considered for the first time on appeal.
The first question this court must examine is the category being challenged. In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2022, 176 L.Ed.2d 825 (2010), the United States Supreme Court divided categorical challenges into two subsets—“one considering the nature of the offense, the other considering the characteristics of the offender.” Clay focuses on the nature of the offense, arguing that “[t]he Eighth Amendment categorically prohibits imposition of lifetime postrelease for possession of pornographic images of a person under age 18.”
Our Supreme Court has adopted the Ninth Circuit Court of Appeals' position in United States v. Williams, 636 F.3d 1229, 1233 (9th Cir.), cert. denied132 S.Ct. 188 (2011), in which the Ninth Circuit examined a categorical challenge to a sentence of lifetime postrelease supervision for a conviction of receipt of child pornography: “ ‘ “[O]bjective indicia” suggest that society is comfortable with lifetime sentences of supervised release for sex offenders, as such sentences are common.’ “ See Mossman, 294 Kan. at 929;Cameron, 294 Kan. at 897. In both Mossman and Cameron, our Supreme Court quoted this language and applied the Ninth Circuit's reasoning. Mossman, 294 Kan. at 929–30;Cameron, 294 Kan. at 897–98.
Although both the Mossman and Cameron courts specifically identified the category at issue to be identical with the crime of conviction, the application of Williams to both the Mossman and Cameron cases means that our Supreme Court is actually analyzing the category even more broadly—as “sex offenses.” This is the only way in which the three crimes at issue in the three cases—aggravated indecent liberties with a child, aggravated indecent solicitation of a child, and receipt of child pornography—can undergo identical analysis for a categorical proportionality challenge under the Eighth Amendment. Moreover, our Supreme Court considered that “several other states have adopted lifetime postrelease supervision for many, if not all, sexually violent crimes.” Mossman, 294 Kan. at 930;Cameron, 294 Kan. at 897. This statement, identical in both opinions, reinforces the belief that the category of offense actually being considered was “sexually violent crimes” as a whole, not each sex crime individually.
Here, Clay was convicted of sexual exploitation of a child, which is a sexually violent crime. K.S.A.2009 Supp. 22–3717(d)(2)(H). Therefore, the Williams analysis applies here as it did in Mossman and Cameron. As these three opinions note, objective indicia suggest that there is no national consensus against lifetime postrelease supervision for perpetrators of sexually violent crimes; rather, it seems to be a widespread phenomenon. Objective indicia indicate now, as in Williams, Mossman, and Cameron, that “society is comfortable with lifetime sentences of supervised release for sex offenders.” Williams, 636 F.3d at 1233;Mossman, 294 Kan. at 929–30;Cameron, 294 Kan. at 897.
Next, “guided by ‘the standards elaborated by controlling precedents and by the [Supreme] Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose,’ [citation omitted], [this c]ourt must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. [Citation omitted.]” Graham, 130 S.Ct. at 2022. This determination “requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. [Citations omitted.] In this inquiry [this c]ourt also considers whether the challenged sentencing practice serves legitimate penological goals. [Citations omitted.]” 130 S.Ct. at 2026.
Regarding the severity of the punishment, lifetime postrelease supervision is a severe penalty, but it is not as severe as capital punishment or life without parole, the two sentencing practices previously found unconstitutional by the United States Supreme Court by way of a categorical challenge to the Eighth Amendment. See Graham, 130 S.Ct. at 2027. Moreover, although in the context of a case-specific Eighth Amendment challenge, the Kansas Supreme Court has stated: “[W]hile the sentence is lengthy, lifetime postrelease supervision is not as harsh a punishment as imprisonment and is aimed at safely integrating a sex offender into society and protecting the public.” Cameron, 294 Kan. at 896. Unlike a life without parole sentence, lifetime postrelease supervision does not “mean[ ] denial of hope” or that “good behavior and character improvement are immaterial.” Graham, 130 S.Ct. at 2027.
This court must also consider the penological justifications for lifetime postrelease supervision because “[a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.” Graham, 130 S.Ct. at 2028. As stated in Williams and followed by our Supreme Court in Mossman and Cameron,
“[r]ehabilitation and incapacitation are central purposes of the criminal justice system, and they are particularly critical here given the propensity of sex offenders to strike again. Supervised release can further the end of rehabilitating sex offenders [especially where the offender is required to receive treatment and avoid situations in which the offender might be tempted to offend again].... Relatedly, supervised release helps incapacitate sex offenders by keeping them under the watchful eye of probation officers who may be able to detect problems before they result in irreparable harm....” Williams, 636 F.3d at 1234.
See Mossman, 294 Kan. at 930;Cameron, 294 Kan. at 898.
Retribution is another recognized penological justification; “[s]ociety is entitled to impose severe sanctions on a ... nonhomicide offender to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense.” Graham, 130 S.Ct. at 2028. Although retribution was not proportional in Graham because a juvenile—an offender with comparatively less moral culpability—was receiving the law's second most severe penalty, here retribution is much more proportional. See130 S.Ct. at 2028 (stating that retribution was disproportional). Finally, the deterrent effect is likely not sufficient alone to justify the punishment; however, a sentence of mandatory lifetime postrelease supervision is sufficiently justified by the combined penological goals of rehabilitation, incapacitation, and retribution.
For all of these reasons, we conclude Clay's sentence of lifetime postrelease supervision under K.S.A.2009 Supp. 22–3717(d)(1)(G) for his conviction of sexual exploitation of a child is not categorically disproportional and, accordingly, is not cruel and unusual punishment under the Eighth Amendment.
Affirmed.