Opinion
No. 105,561.
2013-10-25
STATE of Kansas, Appellee, v. Quintin HIMMELWRIGHT, Appellant.
Appeal from Saline District Court; Jerome P. Hellmer, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., SPIERRON and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Quintin Himmelwright appeals the portion of his sentence imposing lifetime postrelease supervision for his convictions of two counts of aggravated indecent solicitation of a child and one count of lewd and lascivious behavior, Himmelwright claims that his sentence of lifetime postrelease supervision constitutes cruel and/or unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. We reject Himmelwright's constitutional claims and affirm the district court's judgment.
On August 26, 2010, pursuant to a plea agreement, Himmelwright pled no contest to and the district court found him guilty of two counts of aggravated indecent solicitation of a child, a severity level 5 person felony, and one count of lewd and lascivious behavior, a severity level 9 person felony. According to information contained in the presentence investigation report, sisters J.R. and A.F.—14 years old and 8 years old, respectively—lived on the same street as 64–year–old Himmelwright. J.R. and A.F., often accompanied by A.F.'s 11–year–old friend R.W., frequently visited Himmelwright's house to use the computer, watch television, eat snacks, and the like. Himmelwright provided alcohol to J.R., told her she was “sexy,” complimented her body—including her breasts—and made obscene gestures of a sexual nature directed toward her. Himmelwright played a “spin the bottle” game with A.F. and R.W., during which he “dared” the girls to take their clothes off, kiss each other, kiss him, and simulate sex with the wall or a pillow. Himmelwright asked A.F. and R.W. if he could touch their genitals, and told them he wanted to have sex with them as well as with J.R. While in the same room as A.F. and R.W., Himmelwright masturbated under a blanket and then showed the girls his ejaculate on a napkin. Himmelwright showed A.F. and R.W. a pornographic movie, and on a separate occasion showed J.R. a pornographic movie. Himmelwright gave J.R. two vibrators, one of which was intended as a Valentine's Day gift.
Prior to sentencing, Himmelwright filed a motion arguing that lifetime postrelease supervision constituted cruel and unusual punishment as prohibited by § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. The State subsequently filed a response in opposition.
On December 2, 2010, the district court imposed a controlling sentence of 68 months' imprisonment, with lifetime postrelease supervision and 10 years of offender registration. Himmelwright argued at sentencing that lifetime postrelease supervision was unconstitutional. The district court addressed the issue at length and found the sentence constitutionally permissible. Himmelwright timely appealed his sentence.
Claim Under Kansas Constitution
Himmelwright argues that the imposition of lifetime postrelease supervision as applied to his case is cruel or unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights. The State replies that lifetime postrelease supervision is not contrary to the provisions of § 9 of the Kansas Constitution Bill of Rights and that this court should uphold the sentence.
K.S.A.2012 Supp. 22–3717(d)(1)(G) states that “persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life.” K.S.A.2012 Supp. 22–3717(d)(2)(G) establishes that aggravated indecent solicitation of a child, one of Himmelwright's crimes of conviction, is a sexually violent crime. While on lifetime postrelease supervision, an offender must comply with the conditions of his or her release. If a violation results from a conviction of a new misdemeanor, the offender may be required to serve the entire remaining balance of postrelease supervision, and if a violation results from a conviction of a new felony, the offender “shall serve the entire remaining balance of the period of postrelease supervision.” K.S.A.2012 Supp. 75–5217(c)–(d). Thus, an offender subject to lifetime postrelease supervision is subject to confinement for the rest of his or her life without the possibility for release if supervision is revoked as a result of a new conviction. This is true even if that conviction does not result in the imposition of a new term of imprisonment. K.S.A.2012 Supp. 75–5217(c).
When determining whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights, a district court makes both legal and factual determinations. An appellate court applies a bifurcated standard of review. All 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). “A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and the duty to do so. [Citations omitted.]” Ross, 295 Kan. at 426.
Section 9 of the Kansas Constitution Bill of Rights states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” In State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), our Supreme Court interpreted § 9 of the Kansas Constitution Bill of Rights to prohibit punishment “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. [Citations omitted.]” The Freeman court established three factors to weigh when assessing proportionality challenges under § 9:
“(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.
Our Supreme Court recently affirmed that the Freeman factors constitute the appropriate test for analyzing length-of-sentence cruel or unusual punishment challenges brought under § 9 of the Kansas Constitution Bill of Rights. See State v. Toahty–Harvey, 297 Kan. 101, 106, 298 P.3d 338 (2013). No one factor controls, although one factor may weigh so heavily that it directs the final outcome. 297 Kan. at 106–07. The First Freeman Factor
Under the first Freeman factor, a court should consider the nature of the offense and the character of the offender, giving particular regard to the degree of danger to society. Freeman, 223 Kan. at 367. “[R]elevant 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.” Freeman, 223 Kan. at 367.
Here, the district judge made the following factual findings: Himmelwright was 65 years old and the victims were young girls, two of whom lived with their mother in his neighborhood. Himmelwright showed pornographic movies to, exposed his genitals to, and showed his ejaculate to the victims. Himmelwright showed the victims a drawer full of weapons at his house to instill fear in them. Himmelwright encouraged the victims to have sex with him and with each other. Himmelwright gave one victim alcohol and sex toys. The judge stated that although there was no record of Himmelwright touching his victims, it was “violent to them” when he exposed the girls to these types of behaviors.
The district judge also found that Himmelwright lacked the capacity to take responsibility for his own actions. During a sex offender clinical evaluation performed prior to sentencing, Himmelwright told the evaluating therapist that it was the victims who kept coming over to his house, and that he was not a mean or bad person. The judge stated that Himmelwright was “incapable of understanding that what [he] did [was] even wrong,” and cited the therapist's opinion that Himmelwright was not amenable to psychiatric treatment and had no incentive to change. The judge concluded: “There's a high probability of [reoffending] based upon the evaluation that the court has reviewed....”
On appeal, Himmelwright does not challenge the district court's factual findings; rather, he argues that the nature of the offense and the nature of the offender in his case do not merit a lifetime period of postrelease supervision. Regarding the nature of the offense, Himmelwright points out that the crime of aggravated indecent solicitation of a child does not necessarily involve any actual touching of the child. Regarding the nature of the offender, Himmelwright asks the court to consider his lack of criminal history and the fact that no evidence was presented showing him to be a “dangerous man.”
The district court acknowledged that Himmelwright had no prior criminal history but stated that Himmelwright had “stepped completely out of bounds.” The district court concluded: “Your extent of culpability is absolute, Mr. Himmelwright, you were the one who set all this into motion....” There is substantial competent evidence to support the district court's findings on the first Freeman factor, and considerations under the first factor support the imposition of lifetime postrelease supervision.
The Second Freeman Factor
The second Freeman factor requires “[a] comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses.” Freeman, 223 Kan. at 367. If more serious crimes are punished less severely, the challenged penalty is to that extent suspect. Freeman, 223 Kan. at 367. Himmelwright argued in his motion concerning postrelease supervision that there is a plethora of more serious offenses-including second-degree murder, aggravated kidnapping, and electronic solicitation of a child—which Kansas punishes less severely than he was punished in the case at hand.
On appeal, Himmelwright asserts that under the guidelines of lifetime postrelease supervision, future felony or misdemeanor convictions could result in him serving the remainder of his life in prison. However, our Supreme Court has previously rejected attempts to focus on the potential consequences of violating lifetime postrelease supervision finding that such consequences are a separate issue from the question of disproportionality. See State v. Mossman, 294 Kan. 901, 914–17, 281 P.3d 153 (2012).
Himmelwright argues that he would have received a less severe term of postrelease supervision had he committed “the more severe crime of murder.” He holds out second-degree murder as an example of a “more serious” crime “punished less severely than the offense in question.” He also cites the United States Supreme Court's decision in Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) as recognizing that even forcible child rape is a less serious crime than murder. He concludes that under Freeman, the challenged penalty is to that extent suspect.
Himmelwright lists numerous offenses he characterizes as more serious than his own crime of conviction that have shorter periods of postrelease supervision. The crimes include aggravated kidnapping, aggravated human trafficking, and electronic solicitation of a child, all of which carry a 36–month postrelease supervision term. See K.S.A. 21–3421 (aggravated kidnapping is a severity level 1 person felony); K.S.A. 21–3447 (aggravated trafficking is a severity level 1 person felony); K.S.A.2009 Supp. 21–3523(a)(2) (electronic solicitation is either a severity level 1 or a severity level 3 person felony). Himmelwright concludes that under the second prong of the Freeman test, his sentence of lifetime postrelease supervision is disproportionate.
Our Supreme Court, however, has rejected attempts under the second Freeman factor to focus on the length of postrelease supervision and instead has looked to the total length of the sentence, including actual incarceration. Mossman, 294 Kan, at 912–13;State v. Cameron, 294 Kan. 884, 893, 281 P.3d 143 (2012). Furthermore, our Supreme Court explicitly compared a sentence for a sexually violent crime, including lifetime postrelease supervision, to the sentence for second-degree murder, including the 36–month postrelease supervision term, and held:
“[W]hile a defendant subject to lifetime postrelease supervision is under a longer cumulative sentence than a defendant sentenced for second-degree murder, 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.’ [Citation omitted.]” Cameron, 294 Kan. at 893.
Based on our Supreme Court's analysis in Mossman and Cameron, we conclude that the imposition of lifetime postrelease supervision for the crime of aggravated indecent solicitation of a child, a crime statutorily categorized as a sexually violent offense, is not grossly disproportionate to the sentence imposed for other, “more serious” offenses in Kansas, such as second-degree murder. Accordingly, considerations under the second Freeman factor support the imposition of lifetime postrelease supervision. The Third Freeman Factor
Finally, under the third Freeman factor, courts compare the punishment imposed with punishments that other jurisdictions impose for the same offense. Freeman, 223 Kan. at 367. In his motion concerning postrelease supervision, Himmelwright compared Kansas' imposition of lifetime postrelease supervision to sentencing schemes used in other states, including some that impose shorter periods of postrelease supervision and some that impose lifetime supervision only after an offender commits a violation punishable as a separate criminal offense. The district court concluded that “the mere fact that other state's [ sic ] may find that this particular offense meets a different type of category or definition or standard is not the controlling factor for the State of Kansas.”
On appeal, Himmelwright argues that “[t]here is a consensus against mandatory lifetime postrelease supervision without the possibility of release or discharge. Only eighteen other states have mandatory provisions for lifetime postrelease for sex offenses.” Our Supreme Court addressed this exact argument in Mossman, finding:
“[L]ess than half of states provide for lifetime postrelease supervision of some or all sex offenders and, because several states have a mechanism for termination of the postrelease supervision under certain conditions, only a handful of states impose punishment as absolute as Kansas' requirement. Nevertheless, Kansas is not alone in imposing mandatory lifetime postrelease supervision for crimes such as [aggravated indecent liberties with a child], and we are not aware of any court that has found lifetime postrelease supervision of a violent sex offender to be cruel and unusual punishment.” Mossman, 294 Kan. at 920.
Our Supreme Court followed the same rationale in Cameron, where the offense of conviction, as it is here, was aggravated indecent solicitation of a child. The court has since reaffirmed its analysis on this factor, declining to further address it where the appellant did not offer new arguments to invite reconsideration. Ross, 295 Kan. at 428. Accordingly, considerations under the third Freeman factor support the imposition of lifetime postrelease supervision.
In summary, the district court's imposition of lifetime postrelease supervision was not so disproportionate to Himmelwright's convictions “that it shocks the conscience and offends fundamental notions of human dignity.” See Freeman, 223 Kan. at 367. Thus, Himmelwright's sentence of lifetime postrelease supervision does not constitute cruel or unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights.
Claim Under Federal Constitution
Himmelwright also argues that the imposition of lifetime postrelease supervision as applied to his case is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The State replies that under an Eighth Amendment proportionality analysis, lifetime postrelease supervision for sexual offenders “is on firm ground.”
The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Himmelwright argues that lifetime postrelease supervision without the possibility of release or discharge is grossly disproportionate to his conviction. The United States Supreme Court has found that “[t]he concept of proportionality is central to the Eighth Amendment to the United States Constitution. Embodied in the Constitution's ban on cruel and unusual punishments is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ “ Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010).
Our Supreme Court looked to the United States Supreme Court's decision in Graham in laying the framework for analyzing Eighth Amendment cruel and unusual punishment claims:
“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 disproportionate, 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.” State v. Gomez, 290 Kan. 858, Syl. ¶ 5, 235 P.3d 1203 (2010).
In analyzing whether a sentence for a term of years is grossly disproportionate for a particular defendant's crime, the court must begin by comparing the gravity of the offense and the severity of the sentence. Gomez, 290 Kan. 858, Syl. ¶ 5. As part of this analysis, the court may 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. Gomez, 290 Kan. 858, Syl. ¶ 5.
Himmelwright's Eighth Amendment analysis on the gravity of his offense and severity of his sentence is combined in his brief with his § 9 analysis of the first Freeman factor. Similarly, the district judge's factual findings under the first Freeman factor are also relevant here. Concerning Himmelwright's mental state, the district judge stated that Himmelwright was incapable of understanding that what he did was wrong and justified his behavior by telling a therapist that the victims kept coming over to his house. The therapist who conducted Himmelwright's sex offender evaluation concluded that Himmelwright minimized the consequences of his behavior and had no incentive to change. The district judge found that Himmelwright had no prior criminal history. However, when addressing his propensity for violence, the district judge focused on Himmelwright's sex offender evaluation in concluding that there was a “high probability” that he would reoffend once released from prison.
Turning to the harm caused to society, the district judge stated that the girls and their mother should have been able to trust Himmelwright—a neighbor. The judge went on to say that parents should be able to rely on the community to help raise their children, but in this case, Himmelwright's actions as a member of the community were “not the representation of the community that I believe our society is expecting or wishes to have accessible to children.” Later in the sentencing hearing, the district judge addressed the harm caused to the victims. The judge referred to the testimony of the mother of two of the victims, establishing that one of her daughters was performing poorly in school and struggling to sleep and that both of her daughters were in therapy and counseling. The judge concluded that the damage caused to the victims by Himmelwright's conduct was irrevocable and would take a lifetime of therapy to overcome.
There is substantial competent evidence to support the district court's finding that the gravity of Himmelwright's offense and severity of his sentence do not result in an inference of gross disproportionality. Because Himmelwright fails to satisfy the threshold test for determining whether a sentence is cruel and unusual punishment, further consideration of his case-specific Eighth Amendment claim is unnecessary. Accordingly, we conclude that Himmelwright's sentence of lifetime postrelease supervision does not violate the Eighth Amendment's prohibition against cruel and unusual punishment.
Affirmed.