Opinion
No. 107,422.
2013-04-5
STATE of Kansas, Appellee, v. Cody Steven FUNK, Appellant.
Appeal from Cloud District Court; Kim Cudney, Judge. Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Robert A. Walsh, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Cloud District Court; Kim Cudney, Judge.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Robert A. Walsh, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Cody Steven Funk appeals the imposition of lifetime postrelease supervision as part of his sentence following his guilty plea to one count of attempted indecent solicitation of a child. Funk argues that the district court erred in declining to find that postrelease supervision was disproportionate as applied to his case and thus constituted cruel and/or unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. We affirm the district court's judgment.
This appeal arises from a series of events occurring the evening of November 6, 2010, and into the following morning, during which the 14–year–old victim, H.D., performed oral sex on Funk. According to H.D.'s testimony and statements to police, she was walking near a convenience store that evening when she was approached in a vehicle by two young men, later identified as Julio Mendoza and Kohlton Kumnick. The men asked H.D. if she needed a ride, and she agreed. H.D. told the men that she was 16 years old. The men then took H.D. to Kumnick's dormitory apartment at Cloud County Community College. There were two other young men in the dorm room, later identified as Funk and Justin Lord.
At some point, the four men began to drink hard alcohol and huff propellant from cans of air. H.D. also drank hard alcohol and stated that the men all began “almost ordering her” to take drinks. She stated that she drank a lot and drank it quickly. She became dizzy and sat down on the bed near Mendoza. Mendoza took off her clothes and, although H.D. told him several times to stop, Mendoza had sexual intercourse with her. The next thing that H.D. remembered was walking around the room toward Funk and bending over. She did not recall the details, but somehow Funk's penis was placed in her mouth. While this was occurring, Mendoza approached H.D. from behind and penetrated her again. Afterward, H.D. and the four men went together to a party, where further sexual contact occurred.
Kumnick told police that when he and Mendoza offered H.D. a ride, she told them that she had been in a fight with her friends and that she would go anywhere. After they returned to the dorm room and joined Lord and Funk, the five of them started drinking and H.D. began to kiss Lord. At that point, two other females stopped by the room. They recognized H.D. as a freshman in high school and took Kumnick outside to warn him that H.D. was only 14 and that the men should not have H.D. at the dorm. When Kumnick reentered the room, he sat down on the spare bed alongside Funk. He witnessed H.D. and Mendoza have sexual intercourse on the other bed. H.D. then walked over to Funk, began kissing him, undid his pants, and performed oral sex on him. Kumnick told the men that they needed to stop and left the room. When he returned, he could tell that something was wrong. H.D. asked for her clothes, covered up with a blanket, and passed out. A short while later, H.D. and the four men left to go to a party.
Lord told police that he was with Mendoza, Kumnick, and Funk in Kumnick's dorm room on the evening in question. Mendoza and Kumnick left and returned a short while later with H.D. Mendoza brought out a bottle of hard alcohol, and H.D. told Mendoza that she wanted some. H.D. took a drink, and then Mendoza began pushing alcohol to her. H.D. also was huffing propellant and soon began acting tipsy. Lord and H.D. started kissing, and at some point Mendoza stepped in and started removing H.D.'s clothes. Lord then left the room and smoked a cigarette. When he returned, he saw H.D. and Mendoza having sexual intercourse. Lord left the room to smoke another cigarette, and when he returned, H.D. was lying covered by a blanket in the other bed, facing away from Funk. When H.D. and the four men left for a party, H.D. was clearly upset. Lord stated that H.D. had told the men that she was 16 or 17 years old; he did not recall anyone telling them that H.D. was in fact younger than that.
Finally, Funk told police that after Mendoza and Kumnick returned to the dorm room with H.D., H.D. sat on the bed with Mendoza and Lord while he (Funk) sat on the other bed with Kumnick. Funk had a computer in his lap. At some point, Mendoza brought out a bottle of hard alcohol. H.D. drank quite a bit and also huffed propellant. Mendoza began to remove H.D.'s clothes, at which point Kumnick and Lord left the room and turned out the lights. Funk, who was still on a different bed than H.D. and Mendoza, heard the two having sexual intercourse. One of the other men reentered the room and turned the lights back on, at which point Funk saw H.D. and Mendoza having sexual intercourse. Several minutes later, H.D. approached Funk, undid his pants, and began performing oral sex on him. This occurred for about 30 seconds, during which time Mendoza was also penetrating H.D. from behind. Funk stated that H.D. “started to act weird, like she was going to pass out,” so he pushed H.D. off of him. A few minutes later, everybody left together to go to a party. Funk believed H.D. was 16 years old.
On December 9, 2010, the State initially charged Funk with criminal sodomy in violation of K.S.A. 21–3505, a severity level 3 person felony. The State later amended the charge to attempted indecent solicitation of a child in violation of K.S.A.2010 Supp. 21–3301 and K.S.A. 21–3510(a)(1), a severity level 8 person felony. On April 5, 2011, Funk pled guilty to the amended charge, and the plea was accepted by the district court. The presentence investigation report indicated that Funk had a criminal history score of G and that he was on probation for a nonperson felony at the time the new offense occurred.
On May 3, 2011, the district court sentenced Funk to 10 months' imprisonment followed by lifetime postrelease supervision. The district court granted Funk's motion for probation and placed Funk on probation for 18 months with Community Corrections. Funk requested that sentencing be held open an additional 30 days to allow him to file an objection to the imposition of lifetime postrelease supervision. The district court allowed Funk to file his objections.
On May 12, 2011, Funk filed a motion arguing that the imposition of lifetime postrelease supervision was disproportionate as applied to his case and thus constituted cruel and/or unusual punishment under the Eighth Amendment and § 9 of the Kansas Constitution Bill of Rights. Funk contended that lifetime postrelease supervision was disproportionate in his case, applying the three factors set forth in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).
After conducting a hearing, the district court made the following findings of fact:
“1. On the night of November 6, 2012, the Defendant, Cody Funk and at least three other young men, ages 18 to 20, engaged in sexual acts with a 14 year old girl, HD.
“2. On the night in question, two of the young men, Julio Mendoza and Kohlton Kumnick, met HD at a local convenience store. HD had been in a fight with her friends and rode around town with the two young men. Eventually they arrived at Kumnick's dorm apartment.
“3. Funk and Justin Lord were at Kumnick's apartment when HD, Mendoza and Kumnick arrived.
“4. Mendoza brought out a bottle of alcohol. All four men consumed the Bacardi and urged HD to drink also. HD drank steadily and quickly from the bottle. HD and the four men also ‘huffed’ from an aerosol can.
“5. At that point in the evening, all four men believed HD to be 16 years old based upon what she told them.
“6. Sometime during the evening, a friend stopped by the dorm apartment and observed HD in the bedroom with Mendoza, Funk and Lord. This individual told Kumnick she recognized HD as a freshman in high school and warned Kumnick that HD was too young to be at the dorm apartment.
“7. After drinking alcohol and huffing air duster, HD began kissing Mendoza and Lord. Funk was sitting on a bed opposite of HD with a computer on his lap.
“8. Eventually, HD and Mendoza engaged in sexual intercourse on the bed opposite of Funk. Funk remained in the bedroom working on his computer but could hear HD and Mendoza engaging in sexual acts.
“9. After some time, HD approached Funk and undid his pants. HD performed oral sex on Funk while Mendoza penetrated HD from behind either vaginally or anally. HD then performed oral sex on Kumnick.
“10. Eventually the group dressed and went to a party where further inappropriate sexual conduct occurred.”
Based on the facts, the controlling statutes, and applicable caselaw, the district court concluded that the imposition of lifetime postrelease supervision was not disproportionate as applied to Funk's case. Funk filed an untimely notice of appeal, and this court issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction. However, this court ultimately retained jurisdiction after the district court made appropriate findings under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
Funk's sole argument on appeal is that the imposition of lifetime postrelease supervision was disproportionate as applied to his case and thus constituted cruel and/or unusual punishment under the Eighth and Fourteenth Amendments and § 9 of the Kansas Constitution Bill of Rights. The State argues that the district court did not err in imposing lifetime postrelease supervision on Funk.
In deciding whether a sentence violates the prohibition against cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights because the sentence is disproportionate, a district court must make both legal and factual determinations. When the district court's decision is appealed, an appellate court applies a bifurcated standard of review. All of the evidence is reviewed, but not reweighed, to determine if there is sufficient support for the district court's factual findings. The district court's legal conclusions drawn from those facts are reviewed de novo. State v. Cameron, 294 Kan. 884, 888–89, 281 P.3d 143 (2012) (quoting State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 [2012] ). The same standard of review applies to a case-specific proportionality challenge under the Eighth Amendment. Cameron, 294 Kan. at 895.
The Eighth Amendment, which is applicable to the states through the Fourteenth Amendment, simply states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment 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 is great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”
The sentencing scheme at issue, which Funk contends is cruel and/or unusual as applied to his case, mandates the imposition of lifetime postrelease supervision for certain sex offenses committed on or after July 1, 2006, including attempted indecent solicitation of a child. K.S.A.2010 Supp. 22–3717(d)(1)(G); K.S.A.2010 Supp. 22–3717(d)(2)(F) and (K). Once an offender completes the prison portion of his sentence and is released to postrelease supervision, the offender must refrain from further criminal activity and is subject to other conditions of release that are “targeted toward facilitating rehabilitation, restitution, and safe reintegration into society. [Citation omitted.]” State v. Gaudina, 284 Kan. 354, 359, 160 P.3d 854 (2007); see K.S.A. 21–4703(p) (defining “postrelease supervision”).
If there is probable cause to believe that an offender on postrelease supervision has violated the conditions of release, the Secretary of Corrections may either dismiss the charges and order the offender to remain on postrelease supervision or may order a hearing before the prisoner review board (a unit within the Department of Corrections) on the violations charged. If a violation is established to the satisfaction of the prisoner review board after considering all pertinent evidence, the board may reinstate, modify, or revoke postrelease supervision. If the violation is based on a new conviction, the only consideration for the board is whether the new conviction warrants revocation of postrelease supervision. K.S.A.2012 Supp. 75–5217(b); K.A.R. 44–9–105; see K.A .R. 44–9–501 to K.A.R. 44–9–502 (31 Kan. Reg. 303–04 [2012] ).
If postrelease supervision is revoked for reasons other than a new conviction, the offender shall serve a 6–month period of confinement. But if postrelease supervision is revoked due to a new conviction, the offender “shall serve the entire remaining balance of the period of postrelease supervision” if the new conviction is for a felony or “shall serve a period of confinement, to be determined by the prisoner review board, which shall not exceed the remaining balance of the period of postrelease supervision” if the new conviction is for a misdemeanor. K.S.A.2012 Supp. 75–5217(b)–(d); see K.A.R. 44–9–503 (31 Kan. Reg. 304–05 [2012] ).
Before turning to the merits of the case, it should be noted that the Freeman factors originally applied to proportionality challenges under both § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment. See Freeman, 223 Kan. at 364–68. Courts weighed the following three factors in assessing proportionality challenges:
“(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 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.” 223 Kan, at 367.
After Freeman was decided, subsequent United States Supreme Court caselaw caused Kansas courts to question whether proportionality challenges could be brought under the Eighth Amendment. But our Supreme Court confirmed that proportionality challenges under § 9 of the Kansas Constitution Bill of Rights continued to be viable and that the weighing of the Freeman factors was the appropriate method for assessing such challenges. See State v. McDaniel & Owens, 228 Kan. 172, 181–85, 612 P.2d 1231 (1980) (citing Rummell v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 [1980] ). This was the state of the law at the time that Funk's motion challenging the imposition of lifetime postrelease supervision was litigated before the district court. Despite the potential limitation on challenges under the Eighth Amendment, Funk clearly stated in his motion that he was challenging the proportionality of his sentence under both § 9 and the Eighth Amendment using the Freeman factors.
Only days after the district court issued its decision denying Funk's motion in this case, our Supreme Court noted that the United States Supreme Court had recently made clear that proportionality challenges were in fact available under the Eighth Amendment. State v. Gomez, 290 Kan. 858, 861, 862–66, 235 P.3d 1203 (2010) (citing Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 [2010] ). Based on Graham, our Supreme Court enunciated a proportionality test under the Eighth Amendment that is similar to the considerations upon which the Freeman factors are based but differs slightly in application. Gomez, 290 Kan. at 863–64; see also Mossman, 294 Kan. at 908–09, 922–25. The Graham test was stated as follows:
“In conducting an Eighth Amendment analysis to determine whether a sentence for a term of years is grossly disproportionate for a particular defendant's crime, a court must begin by comparing the gravity of the offense and the severity of the sentence. This analysis can consider a particular 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, and a particular offender's propensity for violence. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual.” Gomez, 290 Kan. 858, Syl. ¶ 5.
Our Supreme Court recently confirmed that the weighing of the Freeman factors is the appropriate method for analyzing proportionality challenges under § 9 of the Kansas Constitution Bills of Rights, whereas the Graham test is the appropriate test for analyzing case-specific proportionality challenges under the Eighth Amendment. Mossman, 294 Kan. at 908–09, 922–25.
Here, there is no question that Funk raised and preserved a proportionality challenge under § 9 during litigation before the district court, and the district court made factual and legal determinations sufficient for this court to review. Furthermore, Funk attempted to raise and preserve a case-specific proportionality challenge under the Eighth Amendment using the Freeman factors. Although that method of analyzing Eighth Amendment challenges is no longer proper in light of Graham, the factual findings made by the district court in the course of weighing the Freeman factors coincide with the factual findings necessary to apply the Graham test. Thus, this court shall review Funk's proportionality challenge under § 9 of the Kansas Constitution Bill of Rights, and we shall also review Funk's case-specific proportionality challenge under the Eighth Amendment using the Graham test. See Mossman, 294 Kan. at 922–25 (applying Graham test to pre- Graham proportionality challenge under the Eighth Amendment).
§ 9 of the Kansas Constitution Bill of Rights
As discussed above, proportionality challenges under § 9 of the Kansas Constitution Bill of Rights are assessed by weighing the three Freeman factors. No one factor controls. Although consideration should be given to each factor, one factor may weigh so heavily that it directs the final conclusion. Mossman, 294 Kan. at 908.
Under the first Freeman factor, courts consider the nature of the offense and the character of the offender, with particular regard to the degree of danger present to society. Relevant to this inquiry, the district court made a factual finding that H.D. had performed oral sex on Funk, without Funk's request or force. The district court also found that Funk was only 18 or 19 years old at the time of the offense and that H.D. was 14 years old but had represented to the men that she was 16 years old. Although there is evidence that at least one of the men was told at some point that H.D. was only a freshman in high school, the district court made no finding as to whether that information was ever relayed to Funk. Finally, although the district court did not make an explicit factual finding regarding Funk's criminal history, it is undisputed that Funk had three prior convictions for nonperson crimes, which are generally crimes posing danger to property rather than persons.
The State points out that H.D. was a 14–year–old minor deemed legally incapable of consenting to sexual activity. Furthermore, the State contends that H.D. was strongly encouraged, if not coerced, into heavy drinking. The State characterizes the offense as “one of extreme sexual violence committed against a child,” noting that the offense is classified as a “sexually violent crime” under K.S.A.2010 Supp. 22–3717(d)(2) regardless of whether violence is used. The State also argues that the facts show that Funk's actions were “predatory” and that he has “a chronic disregard for the law.”
Leaving aside the parties' characterization of the relevant facts, there is no real dispute that the district court's factual findings were supported by sufficient evidence in the record. The district court's conclusion that Funk was not the aggressor is supported insofar as the undisputed evidence shows that Funk neither requested nor forced the sexual contact between H.D. and himself. Thus, the main question for this court to consider is whether these factual findings support the district court's ultimate legal conclusion that lifetime postrelease supervision was not cruel and/or unusual punishment as applied to Funk's case.
Funk relies heavily on State v. Proctor, 47 Kan.App.2d 889, 280 P.3d 839 (2012), petition for rev. filed August 3, 2012, in which this court found that lifetime postrelease supervision constituted cruel and/or unusual punishment under the facts of that case. In Proctor, the defendant was sentenced to probation, with an underlying sentence of imprisonment followed by lifetime postrelease supervision, following his guilty pleas to one count of aggravated indecent solicitation of a child and two counts of lewd and lascivious behavior. The factual basis underlying the pleas indicated that the defendant was 19 years old and had no criminal history. The defendant was living with the family of the victim, a 12–year–old boy, at the time the offenses occurred. There were apparently multiple instances of illicit contact in which the victim was cajoled into having manual and oral contact with the defendant's penis and in which the defendant had manual contact with the victim's penis and anus. This court ultimately struck down the imposition of lifetime postrelease supervision as unconstitutional under both § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment as applied to the defendant. 47 Kan.App.2d at 938, 942.
But apart from Proctor, Kansas appellate courts have consistently found that the first Freeman factor weighs against defendants convicted of sex offenses against children. In Mossman, the 25–year–old defendant pled no contest to aggravated indecent liberties with a child for having an ongoing sexual relationship with the 15–year–old victim, with whose family the defendant lived. The evidence before the district court included a recommendation by a psychologist that the defendant participate in sex offender and drug abuse treatment programs. The victim made a statement that she had encouraged the defendant's behavior, but the defendant acknowledged that he knew the victim was only 15 years old and knew the relationship was wrong.
Analyzing the first Freeman factor, our Supreme Court found that the offense was a serious offense given the legislature's decision to treat all sex offenses against minors as “sexually violent crimes” and given the high rate of recidivism among sex offenders. Regarding the character of the offender, our Supreme Court noted that the defendant's lack of impulse control, rebellious character, and history of drug use put him at some risk of reoffending and led to the psychologist's recommendation that the defendant undergo sex offender and drug treatments despite several factors mitigating in his favor. Mossman, 294 Kan. at 909–11. Finally, our Supreme Court noted that courts cannot focus solely on proportionality from the perspective of punishment or retribution and that lifetime postrelease supervision advances other legitimate penological goals such as deterrence, incapacitation, and rehabilitation. Our Supreme Court concluded that the first Freeman factor weighed against the defendant. Mossman, 294 Kan. at 911–12.
Other cases in which Kansas appellate courts have found that the first Freeman factor weighed against a defendant convicted of a sex offense against a child include the following: State v. Ross, 295 Kan. 424, 284 P.3d 309 (2012) (19–year–old defendant admitted to oral sexual acts with 4–year–old victim, defendant had extensive criminal history including person felonies and a high likelihood of recidivism); Cameron, 294 Kan. 884 (45–year–old defendant admitted to soliciting sexual acts from his 12–year–old stepgranddaughter while he was very intoxicated, defendant was cooperative with law enforcement, had no felony criminal history, and had low risk of recidivism); State v. Black, No. 104,728, 2013 WL 517596 (Kan.App.2013) (unpublished opinion) (27–year–old defendant had sexual intercourse with 15–year–old victim, knew victim was underaged, and had history of violence and sexual activity with pre-adult girls), petition for rev. filed March 8, 2013; State v. Rowley, No. 104,680, 2013 WL 451886 (Kan.App.2013) (unpublished opinion) (defendant engaged in forcible sexual acts with girlfriend's 11–year–old daughter on multiple occasions, victim was traumatized by defendant's actions), petition for rev. filed March 4, 2013; State v. Collins, No. 105,523, 2012 WL 5519088 (Kan.App.2012) (unpublished opinion) (21–year–old defendant solicited 11–year–old victim for sexual acts on multiple occasions, defendant's criminal history included prior sex offense), petition for rev. filed December 10, 2012; State v. Genzel, No. 106,136, 2012 WL 5519176 (Kan.App.2012) (unpublished opinion) (28–year–old defendant fondled 11–year–old stepdaughter), petition for rev. filed December 10, 2012.
Although these cases involve facts that arguably are more egregious than Funk's case, they demonstrate Kansas appellate courts' deference to the legislature's policy decision to treat sex offenses against children as sexually violent crimes regardless of the facts surrounding the offense. Nevertheless, there are several facts here that weigh in Funk's favor. Funk was only 19 years old and H.D. was 14 years old. H.D. told Funk and the other men that she was 16 years old, and it is unclear whether Funk learned her actual age prior to the sexual contact. Although H.D. was intoxicated at the time of the sexual contact, there is little evidence that Funk encouraged or coerced her into drinking for the purpose of taking advantage of her sexually, and the district court made no factual finding in this regard. Most importantly, the district court explicitly found that Funk did not request or force the sexual contact.
With regard to the character of the offender, Funk does have a criminal history, which indicates a degree of future danger to society. On the other hand, Funk's criminal history includes neither sex offenses nor any person offenses in general. The district court made no specific factual findings about Funk's likelihood of recidivism, which prevents further analysis on this point. Finally, as our Supreme Court noted in Mossman, lifetime postrelease supervision is not only punitive but also advances the legitimate penological purposes of deterrence, incapacitation, and rehabilitation. 294 Kan. at 911–12.
The district court made no specific legal conclusion as to whether the first Freeman factor weighs in favor of Funk or in favor of the State. However, taking all the above into account, it appears that the first Freeman factor weighs about equally. In Funk's favor, while he undeniably exercised poor judgment on the evening in question, the evidence as found by the district court does not show that he knowingly took advantage of the age and experience difference between himself and H.D. or of H.D.'s status as a minor. He did not initiate the sexual contact. To the extent that his criminal history suggests a future risk to society, there is little indication, other than his current offense of conviction, that the threat Funk poses is of a sexual or violent nature. In the State's favor, Kansas appellate courts have found that sex offenses against children are serious and should be treated as such even if the minor purportedly consented to the sexual activity and even if there was no violence involved in the commission of the offense. Furthermore, the fact of Funk's criminal history does suggest some future risk to society even though his prior convictions were for nonperson offenses. And finally, lifetime postrelease supervision advances several legitimate penological goals unrelated to the severity of the punishment.
Turning to the second Freeman factor, courts compare the punishment with punishments imposed in Kansas for more serious offenses. Funk contends that the punishment of lifetime postrelease supervision for his offense is disproportionate in comparison to 22 other offenses, including several sexually motivated and homicide offenses, that have a higher severity level ranking but a shorter term of postrelease supervision. The State notes that this is essentially the same argument rejected by our Supreme Court in Mossman.
In Mossman, the defendant pointed out that the sentence for intentional second-degree murder, a severity level 1 person felony, carries a longer prison term than his offense of conviction but a much shorter postrelease supervision period of only 36 months. Our Supreme Court rejected the defendant's attempt to focus analysis of the proportionality under the second Freeman factor solely on the length of postrelease supervision, instead finding that the cumulative sentence including the period of actual incarceration must be considered. The Supreme Court noted that while the defendant's cumulative sentence may be longer than that of a convicted second-degree murderer, he has the opportunity to serve most of that time in the less restrictive environment of postrelease supervision, assuming his postrelease supervision is not revoked. Mossman, 294 Kan. at 912–14.
Our Supreme Court also rejected the defendant's attempt to focus analysis on the condition and potential consequences of lifetime postrelease supervision, particularly the potential for life imprisonment without parole if postrelease supervision is revoked. Rather, our Supreme Court indicated that the consequences for violating postrelease supervision are a separate issue from the question of whether lifetime postrelease supervision is in itself disproportionate. 294 Kan. at 914–17. Our Supreme Court ultimately concluded that although the defendant would be subject to lifetime restriction on his freedom and thus serve a longer cumulative sentence than that of a convicted second-degree murderer, a “sentence to lifetime postrelease supervision [for a sexually violent offense] is not grossly disproportionate in relation to the sentence applicable to second-degree murder in Kansas when we consider the penological purposes, the seriousness of the crime, and the other concerns discussed in relation to the first Freeman factor.” Mossman, 294 Kan. at 917; accord Cameron, 294 Kan. at 893.
Applying the Mossman rationale to this case, Funk's cumulative sentence is indeed longer than the potential cumulative sentences he would have faced had he been convicted of any of the higher severity level crimes that he lists. But as Mossman stresses, his actual period of incarceration is shorter and lifetime postrelease supervision imposes a lesser restriction on his freedom than actual incarceration. Furthermore, it appears that this court may not consider the grave consequences if lifetime postrelease supervision is revoked—including the potential for life without parole—in assessing the proportionality of Funk's sentence in comparison to sentences for more serious Kansas offenses. Considering the guidance from our Supreme Court in Mossman, it is reasonable to conclude that the second Freeman factor weighs in favor of the State.
Finally, under the third Freeman factor, courts compare the punishment with punishments imposed in other jurisdictions for the same offense. Funk contends that punishments for similar offenses in other jurisdictions are less severe than lifetime postrelease supervision and that the third Freeman factor weighs in favor of a finding that lifetime postrelease supervision is disproportionate. The State notes that our Supreme Court in Mossman conducted an extensive survey of punishments imposed in other jurisdictions for similar sex offenses against children and concluded that while Kansas' sentencing scheme mandating lifetime postrelease supervision is more severe than most other jurisdictions, that fact alone does not mean that lifetime postrelease supervision is disproportionate under the third Freeman factor. Mossman, 294 Kan. at 917–20. The Mossman rationale is equally applicable to Funk's case. Thus, it is reasonable to conclude that the third Freeman factor weighs in favor of the State.
Weighing all three Freeman factors, we conclude that the district court did not err in finding that the imposition of lifetime postrelease supervision was not disproportionate as applied to Funk's case. Thus, Funk's sentence did not constitute cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights.
Eighth Amendment to the United States Constitution
Although our Supreme Court has reserved the right to interpret § 9 of the Kansas Constitution Bill of Rights differently than the Eighth Amendment, it has not traditionally done so. See State v. Scott, 286 Kan. 54, 93–94, 183 P.3d 801 (2008). Furthermore, Funk has not suggested any basis for finding case-specific disproportionality under the Eighth Amendment if this court has rejected such an argument under § 9. See Mossman, 294 Kan. at 924. These factors alone suggest that Funk's challenge under the Eighth Amendment must likewise fail.
Nevertheless, applying the Graham test stated above, courts begin by making a threshold comparison between the gravity of the particular defendant's offense and the severity of the sentence. Only if this threshold comparison leads to an inference of gross disproportionality do courts compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. See Gomez, 290 Kan. 858, Syl. ¶ 5.
As previously discussed, there are facts in Funk's case that mitigate in his favor, most especially that he did not request or force the sexual contact with H.D. But Kansas courts are very deferential to the legislature's decision to treat sex offenses against children as sexually violent offenses, regardless of the particular facts of the case. And while lifetime postrelease supervision imposes a lifelong restriction on the offender's freedom, our Supreme Court has indicated that the most severe consequence of violating lifetime postrelease supervision—the potential for life without parole if postrelease supervision is revoked based on the commission of a new offense—is not relevant to the proportionality of lifetime postrelease supervision itself. In these circumstances, the threshold inquiry between the gravity of Funk's offense and the severity of lifetime postrelease supervision does not lead to an inference of gross disproportionality. Thus, Funk's sentence does not constitute cruel and unusual punishment under the Eighth Amendment and no further analysis under the Graham test is required.
Affirmed.