Opinion
No. 111,441.
2014-12-24
Appeal from McPherson District Court; RICHARD B. WALKER, Judge.
Submitted for summary disposition by the parties pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jordan L. Gunn appeals the district court's decision granting the State's motion to correct the postrelease supervision imposed on Gunn's conviction for indecent liberties with a child from 24 months to lifetime. Gunn claims the imposition of lifetime postrelease supervision in his case is cruel and unusual punishment.
On January 13, 2013, S.M.S., a minor between the age of 14 and 16 years, informed a school counselor that her sister's boyfriend, Gunn, had engaged in various acts sexual contact with her on three different occasions between September and October 2012. After an investigation into the allegations, the State charged Gunn with three counts of aggravated indecent liberties with a child, criminal sodomy, and aggravated intimidation of a witness.
As the result of plea negotiations, Gunn entered a plea of no contest to an amended charge of indecent liberties with a child, and the State dismissed the remaining charges. The factual basis for the charge was Gunn's lewd fondling and touching of S.M.S., a child between the age of 14 and 16 years, on September 4, 2012. The agreement also provided for a sentence recommendation of 90 months in prison. After questioning Gunn about his understanding of the plea and advising him of his rights, the district court accepted the plea on May 13, 2013.
On June 14, 2013, the district court sentenced Gunn to 90 months in prison, a downward durational sentencing departure. The court imposed 24 months of postrelease supervision.
Sometime thereafter, the State sought a hearing to correct the postrelease supervision period imposed at sentencing. Although the State did not file a written motion, defense counsel waived the formal notice at the hearing. Following arguments, within which Gunn challenged the imposition of lifetime postrelease supervision under the facts of his case as being cruel and unusual punishment, the district court concluded it was not going to declare the statute unconstitutional and the plain language of the statute mandated lifetime postrelease supervision. The court granted the State's motion to correct the illegal postrelease supervision portion of Gunn's sentence and imposed lifetime postrelease supervision.
Gunn filed a timely notice of appeal from the hearing on the motion to correct his sentence.
At the hearing on the State's oral motion to correct an illegal sentence, Gunn objected to the imposition of lifetime postrelease supervision under the facts of his case. He argued that lifetime postrelease supervision was disproportionate to the underlying prison term and severity of the offense of conviction. Gunn provided no written memorandum of support and provided no legal authority for his position. The district court refused to declare the statute unconstitutional as it applied to Gunn, indicating that it was a job better left to the appellate courts.
On appeal, Gunn's appellate counsel directs us to State v. Naputi, 293 Kan. 55, 67–68, 260 P.3d 86 (2011), where the court stated:
“We have repeatedly stated that the issue of cruel and/or unusual punishment will not be reviewed for the first time on appeal because it requires the district court's findings upon the three-part test established in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). State v. Garza, 290 Kan. 1021, 1033, 236 P.3d 501 (2010); State v. Easterling, 289 Kan. 470, 486, 213 P.3d 418 (2009); State v. Thomas, 288 Kan. 157, 160–61, 199 P.3d 1265 (2009); State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). Granted, in State v. Seward, 289 Kan. 715, 720–21, 217 P.3d 443 (2009) [parenthetical omitted], we faulted both the district court and the defendant for failing to make an adequate record for review, and we remanded to the district court to apply the Freeman factors. 289 Kan. at 722. However, we cautioned that such an outcome was an exceptional situation. 289 Kan. at 721. Central to that decision was the finding that the defendant had adequately raised the issue before the district court.”
The Naputi court then noted the one-sentence argument made in the defendant's motion for departure in support of his argument under the Eighth Amendment to the United States Constitution and concluded that this brief statement was insufficient to raise the issue before the district court. Consequently, the Kansas Supreme Court refused to consider the issue and refused to remand the case to the district court for further findings. 293 Kan. at 68.
By citing Naputi as controlling authority, Gunn effectively waives any argument that the issue was adequately raised to the district court and, therefore, distinguishable from Naputi. He does not argue that his case more closely aligns with Seward and that the lack of an adequate factual record rests with the district court so the proper remedy would be a remand to the district court for consideration of the Freeman factors. Nor has appellate counsel sought appellate review of the Eighth Amendment proportionality claim that can be raised for the first time on appeal. See State v. Williams, 298 Kan. 1075, 1083–84, 319 P.3d 528 (2014) (refusing to consider cruel and unusual punishment aspect of the Kansas Constitution Bill of Rights § 9 because it required consideration of Freeman factors but concluding that Eighth Amendment proportionality arguments may be raised for the first time on appeal).
It is well settled that a failure to provide adequate briefing of an issue is deemed abandonment of that issue. 298 Kan. at 1083. Equally well established is that mere articulation of an argument without supporting authority or explanation why the position is sound in the absence of supporting authority is also abandonment of the claim. 298 Kan. at 1084. Here, Gunn has provided the court with authority that suggests the issue has not been properly raised to the court. To the extent his claim encompassed other arguments that the court could have properly considered for the first time on appeal, those arguments have been abandoned.
In any event, we note our courts have found that the imposition of lifetime postrelease supervision is not cruel and unusual punishment. See State v. Williams, 298 Kan. 1075, 1088–90 (conviction for sexual exploitation of a child); State v. Cameron, 294 Kan. 884, 897–98, 281 P.3d 143 (2012) (convictions for aggravated indecent solicitation of a child); State v. Mossman, 294 Kan. 901, 929–39, 281 P.3d 153 (2012) (convictions for aggravated indecent liberties with a child).
Affirmed.