Opinion
No. 111511.
2015-03-6
STATE of Kansas, Appellee, v. David Austin DENNEY, Appellant.
Appeal from Butler District Court; David A. Ricke, Judge.Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Butler District Court; David A. Ricke, Judge.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
David Austin Denney pled guilty to attempted aggravated indecent liberties which carries with it a term of lifetime postrelease supervision. See K.S.A.2014 Supp. 22–3717(d)(1)(G). The district court, pursuant to the plea agreement, sentenced him to probation with an underlying prison term of 32 months. However, the district court inadvertently sentenced Denney to 24 months' postrelease supervision as incorrectly set forth in the presentence investigation report, prompting a motion by the State to correct an illegal sentence.
At the hearing to correct the illegal portion of the sentence, Denney, relying on State v. Proctor, 47 Kan.App.2d 889, 280 P.3d 839 (2012), rev'd 297 Kan. 1254 (2013), argued that under both the United States and Kansas constitutions, the punishment was disproportionate to the harm caused by his offense. Denney noted his challenge constituted an “ ‘as applied’ “ challenge, as he raised the issue only as it applied to his specific situation. The district court determined the constitutional issue was not yet ripe because Denney would only serve postrelease supervision if his probation was ultimately revoked and his sentence imposed. The district court therefore granted the motion and imposed lifetime postrelease supervision. Denney timely appeals.
On appeal, Denney argues the district court erred in failing to consider his challenge to the constitutionality of his postrelease supervision term. Although Denney recognizes he will only be subject to postrelease supervision if and when he is required to serve his underlying term of imprisonment, he argues that Kansas law prevents him from raising this issue at any time other than during his sentencing hearing. We agree.
While we understand the district court's ruling in light of the general rule that a court will not consider unripe issues—those which are “nebulous and contingent” and lack a “fixed and final shape,” State ex rel. Morrison v. Sebelius, 285 Kan. 875, 896, 179 P.3d 366 (2008)—in the context of a defendant's challenge to lifetime postrelease supervision, the Kansas Supreme Court has held:
“A claim that a criminal defendant's sentence of lifetime postrelease supervision is cruel or unusual punishment is ripe for decision at sentencing and in a direct appeal of the sentence. Even though the supervision will not begin until sometime in the future after the defendant has completed a term of imprisonment and no one knows exactly what conditions will be imposed on the defendant at that time, the claim is ripe because the postrelease supervision term is part of the sentencing judgment and it is known that the defendant's rights and liberties will be restricted in some manner.” State v. Mossman, 294 Kan. 901, Syl. ¶ 3, 281 P.3d 153 (2012).
Moreover, this court has repeatedly held that a defendant like Denney who is sentenced to probation and to lifetime postrelease supervision must challenge the constitutionality of that supervision at sentencing rather than during his probation revocation. See State v. Galliher, No. 109,676, 2014 WL 1796046, at *2 (Kan.App.2014) (unpublished opinion); State v. Long, No. 107,758, 2013 WL 1876456, at *1–2 (Kan.App.) (unpublished opinion), rev. denied 297 Kan. 1252 (2013); State v. Stringer, No. 107,619, 2013 WL 1876454, at *1–2 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. –––– (October 28, 2013).
As we are duty bound to follow Supreme Court precedent unless there is some indication the court is departing from its earlier position, State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012), we must conclude the district court erred in declining to decide Denney's constitutional challenge.
Instead of remanding the case, the State urges us to decide the constitutionality issue now. While it is true that constitutional challenges are typically “questions of law subject to unlimited appellate review ..., in deciding 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.” Mossman, 294 Kan. at 906. Because an appellate court reviewing this specific type of constitutional challenge must operate under a bifurcated standard of review that considers whether “there is sufficient support for the district court's factual findings” while reviewing its legal conclusions de novo, 294 Kan. at 906, it is not appropriate to consider this issue for the first time on appeal because it involves both legal and factual inquiries that must first be determined by the district court. State v. Roberts, 293 Kan. 1093, 1096, 272 P.3d 24 (2012).
Because the district court in the instant case found the constitutional issue was not yet ripe for review, it made no factual findings relevant to the question of whether lifetime postrelease supervision subjected Denney to cruel and unusual punishment. As such factual findings are required for us to review the validity of Denney's constitutional challenge, we must vacate the order finding the issue is not ripe and remand the case for consideration of the constitutional challenge on its merits.
Vacated and remanded.